Legal Parenthood and Same-Sex Couples
Legal recognition of the parent-child relationship ("parentage") is important for many reasons, from healthcare decisions to financial stability. In Wisconsin, married same-sex couples are legally recognized as parents through the same legal avenues as any other married couples, including marital presumption, adoption, assisted reproduction laws, and court rulings. For unmarried same-sex couples, proving legal parentage can be even more complicated and uncertain. Here’s how legal parenthood for same-sex couples is recognized:
Married Same-Sex Couples
Marital Presumption of Parenthood
Wisconsin law presumes that a “man” is the legal father of a child born to his wife during their marriage. Following the Supreme Court’s Obergefell decision, which requires states to treat same-sex married couples equally to different-sex couples, a same-sex spouse of a person giving birth is also presumed to be the child’s legal parent. They will be put on the birth certificate.
Assisted Reproduction
Wisconsin law recognizes parentage for children conceived through artificial insemination if the couple was married at the time of conception and both partners consented in writing to the procedure.
By law, a sperm donor who is not the intended parent has no parental rights if the insemination was done under medical supervision. There is no similar law that says an egg donor who is not the intended parent has no parental rights. With egg donation, parental rights are usually established through legal contracts.
The statute does not require that it be anonymous donor sperm from a sperm bank; the couple can know the sperm donor. However, if a couple uses a known sperm donor, they may want to take some extra steps to protect their parental rights:
- Sperm Donation Agreement: A contract between the donor and couple
- Makes it clear that the couple will have exclusive rights to and responsibility for the child.
- Releases the donor from liability for child support
- Waives claims by the child against the donor’s estate at his death
Step-Parent Adoption
A non-biological parent in a same-sex married couple can secure legal parenthood through stepparent adoption. This process makes sure that both parents have equal legal rights, even if they divorce or move to a state that does not recognize same-sex parenthood. Unlike most adoptions, which require the biological parents to give up their parental rights, the biological parent in the married couple does not give up their parental rights when their spouse adopts the child.
A step-parent adoption requires a screening, which includes: questionnaires, background checks, a medical exam, and an interview.
Joint Adoption
Married same-sex couples can jointly adopt a child from foster care or an adoption agency in Wisconsin, just like heterosexual married couples can. Both parents will have equal legal rights, even if they divorce or move to a state that does not recognize same-sex parenthood.
Unmarried same-sex couples, like unmarried heterosexual couples, cannot jointly adopt a child. An individual can adopt a child, but a same-sex partner of that individual will not have recognized legal parental rights over the child.
Unmarried Same-Sex Couples
Second-Parent Adoption
Second-parent adoption is a step-parent adoption for a couple who is not married. This type of adoption is not available in Wisconsin. Right now, in Wisconsin, to adopt your partner’s biological or adoptive child, you must be married. The same is true for all couples.
Intended parents must either get married in Wisconsin and get a stepparent adoption or complete their second-parent adoption in another state. Wisconsin Vital Records will typically honor a second-parent adoption order from another state and update a child's birth certificate accordingly.
Co-Parenting Agreements
A Co-Parenting Agreement is a contract between parents that states their intentions and commitment to co-parent, agrees to facts (e.g., “we conceived the child together”), and outlines their plan regarding legal parentage, custody, placement, and support of the child. The contract can be used as evidence in court, whether that is in an adoption, guardianship proceeding, parentage proceeding, probate, or custody and placement proceeding after the relationship is over.
Ideally, these agreements are signed before the child is conceived or born, but they can also be signed after the birth. Co-Parenting Agreements are particularly important in co-maternity pregnancies (one’s egg, the other’s uterus). They can also act as a safety net, in case a parentage or adoption order is not being recognized and respected.
Married and Unmarried Same-Sex Couples
Surrogacy
Wisconsin has no specific surrogacy laws, so courts decide parentage on a case-by-case basis.
The Wisconsin Supreme Court says that surrogacy contracts cannot take away the parental rights of the carrier if she is the biological mother of the child (traditional surrogacy). However, terms in surrogacy contracts that cover issues such as the child’s custody and placement will be enforceable if they are in the child’s best interest.
To protect their parental rights, same-sex couples using surrogacy should obtain a court order recognizing both parents. In some counties they can file for a pre-birth order. Even if they are able to get a pre-birth order, that is never considered a final order. The couple must always get a final order after the child’s birth. The couple can file for a parentage order in the county where the carrier lives or where the alleged father lives. A hearing is required, and generally everyone involved must attend the hearing (the couple, the carrier, the father, if known).
What if a parent had a child from a previous relationship when they got married to a same-sex spouse or if only one parent adopted a child?
If the other parent does not adopt the child after getting married, they will not be recognized as the child’s legal parent, and they may have no right to share in child custody or placement. While parents may still be able to work out a custody and placement agreement in these cases, disagreements about these issues may be hard to sort out, and a person who is not a child’s legal parent may have trouble keeping a relationship with the child.
