Paternity presumption threatens same-sex marriage

Michael Cook
Feb 21, 2015
Reproduced with Permission

Despite the advance of same-sex marriage in the US, it may be some time before the law is scrubbed clean of the presumption that a male/female relationship constitutes a family.

A legally-married lesbian couple in New Jersey, Sheena and Tiara Yates, are fighting requests for visitation rights from their two children's biological fathers.

Both men had signed written agreements that they would not interfere at all in raising the children. But after the births, they reneged. Unfortunately for the couple, New Jersey supports the presumption of paternity by the biological fathers. It does allow the extinction of paternal rights, but only if the sperm donation is performed under the supervision of a doctor. The agreements made by the women, however, were informal and thus unenforceable.

"Emotionally it's very hard for us," Sheena Yates told the media . "All we want is a family, and we can't have kids without an outside party. It's a lot for us to have to deal with. It's not just hard on us, it's hard on the kids, too."

The couple's lawyers complain that poor and disadvantaged couples like his clients cannot afford the expensive services of sperm banks and IVF clinics which the law demands. "The way the law is structured is most protective of people who have the money to buy from a cryo-bank or have the insurance to cover fertility treatment. The courts want this to be a relatively hands-off transaction," says Kimberly Mutcherson, of Rutgers-Camden University. "There are pockets of people that are negatively impacted."

A case in Kansas raises similar issues. A lesbian couple, Jennifer Schreiner and Angela Bauer, who were already co-parenting 8 foster and adopted children, wanted a child of their own. After answering an ad in Craigs List William Marotta provided sperm and agreed to have nothing to do with raising the child. Ms Schreiner gave birth to a daughter in 2009.

This time the state of Kansas, not the sperm donor dad, intervened. Authorities wanted to declare Mr Marotta the father so that he would pay child support. As in New Jersey, there is a presumption of paternity overriding any private agreement if insemination takes place at home. As the years went on, the child's life must have become more complicated. Her mommies have split up and her birth mother married a man and is now called Jennifer Coop. Her time is split between the two women.