Well a case decided yesterday by the Colorado Court of Appeal, In re S.N.V., raises a similar issue in what I believe is a first-of-a-kind case. SNV was born in 2007 to a woman who had sexual intercourse with a married man. The man and his wife claimed that this was a version of a surrogacy arrangement and that the intention was always that the married couple would raise the child. They claim they attended the bio mom's doctor's appointments, paid for her medical expenses, and have been the child's sole caretakers. The bio mom claims she had an intimate relationship with the father and that she participated in caring for the child for the first two years, until the father cut off contact. Then she filed a parentage action to be declared the child's legal mother and to obtain custodial rights.
The wife then filed a parentage action as well. Her basis for asserting parentage is the Colorado Uniform Parentage Act, which states that a man who receives a child into his home and holds the child out as his own is a presumed father. (In 2010 I wrote about a case applying this statute to a nonbio dad and noted that it boded well for nonbio moms). She argued that the statute should be applied to a woman as well as a man, and the court accepted her argument. The statute says that any interested party can bring an action to determine a mother-child relationship and that "insofar as practicable, the provisions of the [UPA] applicable to the father and child apply." Another part of the statute says that "in case of a maternity suit against a purported mother, where appropriate in the context, the word 'father' shall mean 'mother." Taken together, the appeals court determined that the wife could proceed with her parentage claim.
The bio mom could of course also assert a parentage claim. The court noted that in a previous dispute between a husband and a bio dad the Colorado Supreme Court had determined that the competing claims should be resolved according to the best interests of the child standard. Therefore, the appeals court remanded this case for a determination of maternity. In addition to the best interests standard, the court said that
We do not suggest that, in determining best interests, a court must treat statutory presumptions and biological relationships as equals. Nor do we suggest that biological relationships are always the same. We simply note that these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA.What does this mean for same-sex couples raising children? It means, as I predicted in my 2010 post, that a nonbio mom in a lesbian couple who plan for and raise a child together will be a presumptive parent. It also means that the holding out provision is likely to create a parentage presumption for a nonbio dad raising a child born to his same-sex partner through surrogacy and a nonadoptive parent raising a child legally adopted by his/her partner. Note that the holding out provision does not depend on marriage; this nonbio mom could have filed her parentage action even if she and the father were raising the child as an unmarried couple.
I tend to be more supportive than many gay rights family lawyers of the parental rights of a woman who bears a child. (I think "surrogates," gestational or traditional, should be able to change their minds upon the birth of the child; I do support surrogacy when practiced by agencies who screen surrogates well, and provide counseling and legal services, so that they weed out those likely to change their minds. Fortunately, many agencies operate in this manner.) But once a child is born and the birth mother allows another couple to raise the child as their own, in my opinion she cedes a parentage claim based on biology alone. It looks like that's what happened here.