Download This PaperTwo Women and a Baby: The Effect of Same-Sex Marriage on the Presumption of Maternity in a Dual Paternity State
27 Pages Posted: 25 Mar 2020 Last revised: 6 Apr 2020
Date Written: December 30, 2019
Abstract
This Article provides a look into the effects of the legalization of same-sex marriage on Louisiana’s family statutory regime. In 2015, same-sex marriage was legalized in the landmark case, Obergefell v. Hodges, which declared any state laws that prohibited the legal union of two people because of their gender or sexual orientation were unconstitutional. Thus, rather than marriage being only between a man and a woman, the scope of marriage was widened to include any two people of legal majority despite their gender. Despite this decision, many issues within the family concerning same-sex couples have not been contemplated; neither have state laws adjusted to address such matters.
Using a Florida Supreme Court case, D.M.T. v. T.M.H., the author explored the issue of two mothers in a long-term domestic partnership, who later separated after having a child together using in vitro fertilization, making one the birth mother and the other the biological mother. With same sex marriage being recently legalized, what rules or laws will state courts use when deciding such an issue? How will they apply laws created for heterosexual couples to homosexual couples? Reviewing the majority’s decision in this case and the dissent’s reasoning, the author concludes that applying a set of laws for one class of people to another class may pose difficulties; nevertheless, solutions are possible. Thus, the author gives suggestions on how Louisiana laws (e.g., presumptions of paternity) could be changed to fit all family narratives making the jobs of factfinders, attorneys, and others easier and placing state policy makers at an advantage, i.e., the legislature creating new laws rather than the judiciary.
Keywords: History of marriage, Dual Maternity, Dual Paternity, Presumption of maternity, Presumption of paternity, Same-sex marriage, In vitro fertilization, Legal mother, Legal father, Biological parent
JEL Classification: A00, B15, B54, H11, I110, I139, K10, K19, K30, K36, Z12, Z13
Suggested Citation: Suggested Citation