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.
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. However, the birth certificate does not create the parent-child relationship; rather, it is merely documentary evidence of the relationship that can be set aside through DNA evidence that the parent is not genetically the parent of the child.
Further, while Georgia law makes the “presumption” of parentage “irrebuttable” (or indisputable) when the married couple used artificial insemination, there must be proof that conception occurred through AI, i.e. the couple must have used a physician to complete the insemination process. [UPDATE NOVEMBER 2017: The Georgia Supreme Court holds that “artificial insemination” does not include in vitro fertilizations and transfers. Hence, the presumption of parentage can be set aside with DNA where the couple used IVF.]
And finally, NOT ALL STATES have the same presumption of parentage that Georgia does. As of Nov. 2017, there were nine states that had no laws concerning the use of artificial insemination and so, in those states, the presumption is always rebuttable by DNA proof showing that a parent is not genetically related to the child.
The threat of litigation will likely come from a known sperm donor 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.
Given this, same sex couples should not rely on the child’s birth certificate, but should obtain a judicial decree (either a pre-birth parentage order or a post-birth stepparent or second parent adoption) which fully and permanently creates the parent-child relationship for the non-genetic parent. A judicial decree can never be disputed — not in Georgia nor in any other state the family may live in.
As a side note: 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.
And finally, 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.