By Robert L. Mues   |   July 30th, 2016

How Ohio’s Artificial Insemination Statute Will Impact Same-Sex Couples

PUBLISHER’S NOTE: I want to thank our legal extern, Matthew Kimmel, for all his assistance in researching and writing today’s blog post.  Excellent job Matt!

artificial Insemination same-sex couplesTennessee made news recently in regards to a controversial court ruling concerning same-sex couples.  In the case, one partner of a same sex couple became pregnant through artificial insemination with the intent that both partners would raise the child.  However, after the child was born and the couple divorced, things got tricky.  The court ruled that in a situation like this, the parent who bears no biological relationship with the child has no contractual relationship with the child.  Thus, they will not be liable for child support, but they also will not have a say over the upbringing of the child.  A parent in this situation may be granted visitation rights, but will not bear any sort of legal rights  over the child.

Artificial Insemination Statute In Tennessee Ruling

The 4th Circuit Court in Tennessee arrived at this conclusion by looking at the state’s artificial insemination statute .  The statute states that, “A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.”  The court held that “husband”, as used in the statute, is not an interchangeable term and thus does not provide for another woman to fall under that category.  So, even though a parent of a same-sex couple may help raise and support a child and hold that child out as their own, they will have no legal parental rights to that child upon a divorce.

Other states, most notably California, have tackled the issue of artificial insemination as well, but have reached a different conclusion.  California first dealt with this issue in Elisa B. v. Superior Court in 2005.  The court ruled that if a person receives a child into their home and holds them out as their natural child, that parent accepts the rights and obligations of parenthood and will be seen as that child’s second parent regardless of gender or orientation.  New Hampshire and Colorado have also ruled in a manner similar to California when faced with this dilemma.

Artificial Insemination In Ohio

Ohio courts have not yet ruled on this matter.  However, Ohio’s artificial insemination statute  reads similarly to Tennessee’s in that it states, “If a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and regarded as the natural child of the husband.”  The law clearly provides that when a married woman becomes pregnant through artificial insemination, her “husband” will be seen as the natural father in the eyes of the law.  Thus, an Ohio court could follow a literal interpretation of the statutory language and rule the same way that the Tennessee court did.

Courts To Determine Artificial Insemination And Same-Sex Couples Child Custody Cases

With the U.S. Supreme Court ruling in Obergefell v. Hodges granting a legal right for same sex couples to marry, it will be interesting to see how different state courts handle the issue of same-sex couples and artificial insemination moving forward.  I think a strong argument could be made that the Tennessee decision violates the Equal Protection Clause.  It could also be argued under the “best interest of the child” standard used by many courts in custody issues (including Ohio) that it could be in a child’s best interest to have a legal right vested to a parent from a same sex relationship whom they bear no biological relationship.  It is clear, however, that statutory language in many states needs to be “updated”  by the legislature in order to keep up with the ever-changing definition of marriage, the issue of same-sex couples, artificial insemination and the parental rights that follow.  Until that happens, it will ultimately remain up to the courts to determine how they want to interpret the statutes, which can go either way as evidenced by the split in decisions amongst various states thus far.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Artificial Insemination: What Happens When Same-Sex Couples Divorce?
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