*This post was written May 19, 2023, and is not intended to be a comprehensive summary of the legal issues and cannot and does not account for changes in the law after May 19, 2023. This post is NO SUBSTITUTE for sitting down with a licensed Texas attorney and obtaining up to date and comprehensive legal advice on your specific legal situation*
Texas law is behind the times. Same sex marriage presents a great deal of unique legal disputes and Texas law has not yet caught up. Take for example a situation that is all-too common. A lesbian married couple decide to have a child. They decide upon the spouse that will carry the child, and they decide upon artificial insemination from a known donor. They sign an agreement of some form with the donor essentially stating that the donor will have no parental rights and will not file a suit to get rights. The child is born.
Everything goes well…until the couple split or get a divorce. Who has parental rights now? Almost surely the biological mom. But what about the sperm donor and what about the non-biological spouse?
There is some authority under Texas law that even the non-biological lesbian spouse is presumed to be the parent of any child born during the marriage. This legal precedent is shaky in my opinion and shouldn’t be relied upon to withstand judicial scrutiny. Even if the non-biological spouse is found not to be a parent, many courts will afford standing to this person. Meaning, the court will give them rights just like a parent. But in that situation the court’s authority to order the non-biological spouse to pay child support is likely extinguished.
Texas law also indicates that a sperm donor that provides sperm to a licensed physician is not considered a parent. Conversely, Texas law indicates that a sperm donor that provides sperm informally and not through a licensed physician could be adjudicated the father. With all this said, there are indications that sperm donor agreements will be followed by the courts. Essentially a sperm donor agreement is where the donor and the intended parents agree that the donor will have no rights.
What does all this mean practically for the parties involved? A few things:
For a lesbian spouse that gives birth to a child during marriage, you must be prepared for the idea that upon split or divorce your spouse may very well have parental rights to your child. This is true even though they are not the biological parent. Of course, many lesbian couples understand this when they start the process of having a child and they intend for the non-childbearing spouse to be a parent for all purposes, in sickness and in health, and so on.
But upon divorce or split, spouses typically don’t get along and cracks appear in the foundation. You may not like the deal anymore and may be tempted to kick the non-childbearing spouse out of the child’s life. Judges don’t like this as a general matter. If your spouse acts like a parent, if you treat your spouse like a parent and give them the responsibility and authority to parent, and especially if the child sees your spouse as a parent, judges will not want to break this bond.
As the saying goes, if it looks like a duck, walks like a duck and quacks like a duck, then it must be a duck. If your spouse acts like a parent, judges can find them to be a parent whether they are a biological parent or not. If your spouse is deemed a parent, she can in turn be the primary parent, seek child support from you, try to limit your visitation and so on; she can essentially seek to take away some of your parental rights, just like opposite sex couples do routinely in court.
The effect of all this is essentially a word of caution: don’t think your status as a biological mother operates to eradicate your non-bio spouse from the child’s life. Quite the contrary, if you sign a sperm donor agreement whereby your wife is considered the parent and if you do artificial insemination, you will likely find yourself in a custody lawsuit if you split up.
For the non-childbearing spouse, you must be prepared for the possibility that your childbearing spouse will argue that you have no parental rights. One solution to this predicament is obvious, but possibly expensive: adopt the child. You can go through the adoption process to ensure you are legally a parent. Upon splitting or divorce, you can rest assured you won’t have to argue over parentage.
Another option is obtaining a custody order (commonly called an order in suit affecting the parent child relationship or “SAPCR”). You can obtain a custody order even if you and your spouse are together and married, but somewhat akin to a prenuptial, getting a custody order may not be desirable to you or your spouse. You should also do a sperm donor agreement, especially if you are not using a licensed physician.
Talk to a Texas licensed family law attorney about this, as this is a unique and hugely important document. Courts generally hold married couples to these agreements. But don’t just rely on a sperm donor agreement; an adoption or a custody suit whereby you have a court order giving you rights is the ideal solution.
For the sperm donor, you must be prepared for the possibility that one or both lesbian spouses could claim you should be adjudicated the father. Use a Texas licensed physician, as this will generally extinguish any argument that you should be the father. Also, a sperm donor agreement is necessary.
Consult a Texas licensed attorney that practices family law and not simply contract law, and don’t rely on online forms or shoddy handwritten contracts or oral agreements. Finally, don’t leave anything to chance, you should probably insist that the lesbian spouses get an adoption or custody order in place.
Are you confused yet? You should be. Texas law is quite confusing and unclear when it comes to parental rights in a lesbian marriage. This is all the more reason to consult an attorney. And it’s even more reason to consult an attorney before conception and before you even begin to plan to have a child.
Each case is unique and an attorney that knows the law, but also the biases and tendencies of the local judges, will prove to be invaluable to you and your situation. I practice family law in Smith County, but also the surrounding counties, including Gregg County, Rusk County, Henderson County, Cherokee County, Wood County, Upshur County and more.
A Tyler family law attorney, that practices family law and deals with complex paternity and maternity disputes, should be consulted immediately. You can avoid situations similar to this one in Oklahoma, where a non-biological mom was found not to be a parent.
Texaslawhelp.org has a helpful website discussing LGBTQ+ parental rights issues. Of course, even Texas Law Help explains that their information is not a substitute for the advice of an attorney.