Although the parenting rights of people in same-sex couples have generally been on the rise—particularly in the wake of the Supreme Court’s 2015 ruling in Obergefell v. Hodges and the legalization nationwide of marriage by same-sex couples.  But a recent opinion from the Idaho Supreme Court, Doe v. Doe, is a reminder that the rights of lesbian co-parents remain in uncertain, particularly for couples who are not married. This case also illustrates the role the U.S. Constitution plays both in protecting parental rights and allocating them.

In the Idaho case, two women, known only as “Jane Doe” and “Jane Doe I” were in a non-marital, romantic relationship for four years before agreeing to start a family using an anonymous donor. Jane Doe I conceived and gave birth to a child, raised jointly with Jane Doe.  The court quickly relabels Jane Doe I as “Mother” and Jane Doe as “Partner,” presaging its legal conclusion that only one of these women—Mother—has rights to the child they jointly planned for and raised. According to the court, without the consent of “Mother,” “Partner” has no right to maintain a relationship with the child.

In Pavan v. Smith, the Supreme Court summarily reversed an opinion of the Arkansas Supreme Court, which had held that the state could deny married women the right to have a spouse listed as a child’s second parent on the birth certificate if the spouse was female rather than male.  The ruling was blatantly inconsistent with Obergefell, which requires that states permit same-sex couples to marry on the same terms and conditions—with access to the same “constellation of benefits”—as opposite-sex couples.  The Supreme Court was right to summarily reverse—as it did in a case last year, V.L. v. E.L, involving Alabama’s unjustifiable refusal to give full faith and credit to adoption decrees that recognized a lesbian co-parent as the legal parent of her partner’s three children.

Arkansas law of birth certificates is typical of most states.  Under the applicable code provisions, a married woman must list her husband as the second parent of any child born during the marriage.  This is subject to a very limited exception that allows his name to be omitted if the wife, the husband, and the putative biological father each submit an affidavit denying the husband’s paternity.  Husbands have generally been deemed the legal father of their wives’ offspring, regardless of any biological connection. Studies across many decades suggest that 3-5% of children born to married women are not sired by her husband, thus this rule will usually result in identification of the biological father, but not always.