FAQs about Assisted Reproduction and Parentage
Every week we field a number of questions about the rights of same-sex/queer couples and parentage. Below are some frequently asked questions. This is for information only and not legal advice. Every situation is different. If you want legal advice for your specific family, make sure to consult with an attorney.
How is parentage determined in Minnesota?
Under Minnesota statutes, a legal parent-child relationship may be established by giving birth to a child or by adoption. Minn. Stat. § 257.54. Minnesota law also conveys legal parentage through a number of presumptions, such as the marital presumption, which applies to all married couples in Minnesota. Minn. Stat. § 257.55. In addition, as of August 1, 2024, parentage of children conceived via Assisted Reproduction can be determined via a Declaration of Parentage. Minn. Stat. § 257E.10 - .27.
Does the marital presumption for parentage apply to married same-sex/queer couples?
Yes. In Minnesota, upon the birth of a child to a legally married couple, both parties in the marriage can have their names placed on the original birth certificate pursuant to the marital presumption. This is true for opposite-sex couples and same-sex couples.
Does a birth certificate determine parentage?
A birth certificate is a public record, and is not a legal determination of parentage. Although the Minnesota Department of Health issues birth certificates naming two parents to all married couples, not all states have explicitly extreneded the marital presumption to married same-sex couples. In today’s unpredictable political climate, many same-sex couples who qualify for the marital presumption worry that they will lose that benefit in Minnesota, or experience difficulties if they move or travel to another state. Many of these couples choose to obtain a court order affirming the legal parentage rights of both parents. Unlike a birth certificate, a court order is subject to the protections of the Full Faith and Credit Clause of the United States Constitution and must be recognized in every state. U.S. CONST. art. IV, § 1.
What are Second-Parent Adoptions and Co-Parent Adoptions?
When an unmarried queer couple has a child in Minnesota, often only the birth parent’s name will be placed on the birth certificate. The birth parent can then petition a court for a second-parent adoption, requesting that their partner be recognized as a second legal parent of the child. Once the court order is obtained, the second parent’s name can be added to the birth certificate.
When a married same-sex couple has a child in Minnesota, both parent’s names will be placed on the original birth certificate. For reasons discussed above, some of these married couples also seek an adoption to obtain a court order determining parentage. In these cases, both legal parents petition the court for a determination of parentage. Because both parties are already legal parents, we prefer to call these proceedings co-parent adoptions. The parties are not asking the court to recognize an additional second parent, but to issue a court order acknowledging that both parties are legal parents.
What is a Declaration of Parentage?
On August 1, 2024, the Minnesota Legislature enacted Article 4 of the Minnesota Parentage Act, entitled Assisted Reproduction, which allows parents to obtain a court order called a Declaration of Parentage. Minn. Stat. Chap. 257E. The new statute allows Intended Parents to obtain a court order vesting legal parentage - in the individual “married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.” 257E.10, subd. 8 (the statute does not apply to surrogacy). For many families, the Declaration of Parentage may provide a clearer and more straight forward path to a court order for parentage than vi a second- or co-parent adoption.
If you have questions or are interested in an Adoption or Declaration of Parentage for your family, please reach out at 612-305-2959 or info@vbilaw.com.