Since the Supreme Court’s marriage equality decision in June 2015, many married same-sex couples have wanted to know how the decision would affect their rights in Georgia and, specifically, whether both of their names would be placed on their child’s birth certificate automatically, given their married status.
Before answering this, however, it is important to note that all parents-to-be should make sure that their Wills and health care documents are up-to-date, whether they are same-sex or opposite-sex couples. Most people erroneously believe that being married takes care of all issues involving their estate, but this is not true. If a person dies without a will, their estate is divided amongst their spouse and their children; the spouse does not get everything. To complicate matters, the children receive the money outright, rather than having it held and managed for them in a trust. This is not sound estate planning.
Moreover, you should know that, in Georgia, a person’s future marriage and/or future birth or adoption of a child actually voids any prior signed will, unless the will specifically stated that it was written in anticipation of that future marriage or future birth/adoption. So it is possible that, even if you have a will, it is, or will be, null and void, and needs to be re-done.
And now, to answer the question about marriage equality …..
For married couples who are adopting, they will be able to file one legal action together to adopt their child, rather than having to complete a first adoption and then a second parent adoption, as we were forced to do in the past. After the adoption, Georgia Vital Records will list you as “parent” and “parent” on the child’s birth certificate.
For married couples who are having a child biologically using assisted reproductive technology, Georgia Vital Records will automatically list both parents on the baby’s birth certificate, because Georgia law provides that any child “born in wedlock” is “presumed” to be the legitimate (legal) child of both spouses, and that this presumption cannot be challenged by DNA evidence. [UPDATE NOVEMBER 2017: The Georgia Supreme Court holds that “artificial insemination” does not include in vitro fertilizations and transfers. For this reason, any couple using IVF could have their parentage challenged through DNA evidence that one spouse is not genetically related to the child.]
Looking outside of Georgia, we find a patchwork of laws without any guarantee that the parent-child relationship is safe. For example, NOT ALL STATES have the same presumption of parentage that Georgia does. In some states, the presumption is always rebuttable by DNA proof showing that a parent is not genetically related to the child.
Given this, same sex couples should not rely on the child’s birth certificate. Stated another way, a child’s birth certificate does not CREATE the parent-child relationship; it is merely documentary evidence of the relationship. And this documentary proof can be rejected, in some states or in some circumstances, even in Georgia.
It’s possible that we may have litigation on this issue in the future. Litigation will likely come from known sperm donors seeking parental rights. Or, from the parents themselves, in a divorce. Or, from the biological grandparents, aunts or uncles, should the genetic mother die, and the family of origin is opposed to the nonbiological mother having the child.
Because of this, it is strongly advised that gay parents continue to obtain a court order of parentage, or complete a second parent or stepparent adoption. This is the only way to guarantee that the parent’s legal relationship with the child will be valid in all 50 states (and overseas).