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Wednesday, January 28, 2015

Families & 'Marriage Equality'

On October 10, 2014, a North Carolina federal judge ruled that the state’s denial of marriage rights to same-sex couples was unconstitutional. Since that day, same-sex couples who either married in another state or exchanged vows here at home have been poised to begin their lives together with the same rights and obligations afforded to heterosexual couples.

Yet, despite the unambiguous mandate of the judicial decision striking down the state’s same-sex marriage ban, the application of that ruling to same-sex couples attempting to raise families in North Carolina may not be so clear.


Just as with opposite-sex couples, same-sex couples have long used surrogacy as a means to have children. However, NC same-sex couples face challenges in establishing the parentage of their child that are not faced by their heterosexual counterparts.

One significant logistical issue is getting both spouses of a same-sex couple on the birth certificate.

By current statute, if the mother is married at the time of the birth of the child, the names of the birth mother and her “husband” must be entered on the certificate. In light of marriage equality, it would be reasonable to read the relevant statutes as gender neutral and requiring the same outcome for same-sex spouses. But, in Charlotte at least one local hospital, currently, will not place the names of two married men or two married women on a birth certificate as the two parents of the child. The hospital is unwilling to do so until the NC Department of Vital Records provides an updated form for the hospital to use.

Essentially, the hospital is not willing to scratch out the pre-printed “mother” or “father” designation for the second parent on the certificate and write in a second mother or father. This creates a legal obstacle for same-sex couples not faced by opposite-sex couples, despite marriage equality.

Pre-Birth Orders

Moreover, even if the names of both same-sex spouses were to be placed on a child’s birth certificate, a name on a birth certificate merely creates a rebuttable presumption of parentage and may not necessarily create the rights associated with being a legal parent.

To ensure that an “intended” parent of a child in a surrogacy arrangement is recognized as a legal parent, same-sex couples often must obtain a pre-birth court order that establishes the identity of the child’s legal parents and also directs the hospital to list the names of the same-sex spouses on the birth certificate as the parents of the child.

Stepparent Adoptions

Same-sex couples should also consult an attorney as to whether a stepparent adoption would be appropriate for their family’s particular circumstances. Stepparent adoptions are a means of establishing a legal parent-child relationship that was previously unavailable to same-sex couples.

This type of adoption provides a same-sex spouse of the child’s parent the same legal rights to the child as held by a biological parent. Stepparent adoptions and surrogacy arrangements are not necessarily mutually exclusive. In some situations, one or both may be appropriate.

Non-Marriage Equality States

While North Carolina’s laws prohibiting same-sex marriage have been struck down, many states in our country continue to prohibit such marriages and refuse to recognize same-sex marriages from states where they are legal.

The resulting patchwork of marriage equality states leaves same-sex couples and their children at risk as they travel or move out of our state. For example, same-sex spouses can be refused the right to direct the medical care of their spouse’s child when visiting a non-marriage equality state.

Fortunately, you can protect your family from such vulnerabilities with the proper legal documents.

The laws and procedures for establishing parentage of a child, surrogacy agreements, and adoption have existed for many years, and their application to same-sex couples, theoretically, should be straightforward.

However, even reasonable and well-intending individuals can and will disagree over the application of these laws and procedures to same-sex couples. So, while marriage equality offers the promise of equal marital and parental rights to same-sex couples, it will take time before we will have certainty as to how those rights are to be realized in the new legal landscape of same-sex marriage in North Carolina.

Edward S. Garrett is an attorney with Sodoma Law, P.C., a family-focused law firm based in Charlotte, NC that assists both opposite and same-sex couples with surrogacy agreements and adoptions, as well as all other family-law related matters.

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