Texas Appeals Court Refuses to Let Same-Sex Spouse Seek Conservatorship of Child

The Texas 9th District Court of Appeals ruled on April 27 that the wife of a woman who gave birth through donor insemination lacks standing to bring a suit affecting the parent-child relationship (SAPCR) seeking to be appointed a conservator of the child in the context of a divorce proceeding. In the Interest of A.E., 2017 Tex. App. LEXIS 3817, 2017 WL 1535101 (Tex. App., 9th Dist., Beaumont). Writing for the court, Judge Leanne Johnson rejected the argument that under Obergefell v. Hodges the relevant Texas statutes should be construed in a gender-neutral manner to treat the non-birth mother as the equivalent of a husband in determining standing to bring such an action. The court also placed weight on the absence of any written agreement between the women concerning the conception and parentage of the child, who was born after the women had separated.

C.W. and M.N. were married in Connecticut in 2011, but resided in Texas. They decided to have a child through donor insemination (referred to in Texas statutes as assisted reproductive technology, or ART), using sperm of an anonymous donor to inseminate M.N. They did not sign any gestational agreement. Before M.N. gave birth, the women separated, M.N. moving out of the marital home. The child, A.E., was born on January 30, 2014. C.W. had some sporadic contacts with the child, but never had overnight visitation, and never provided any financial support to M.N. for the child’s expenses. C.W., who has a relationship with a new same-sex partner, filed a divorce and custody action in the Texas District Court in Montgomery County on July 8, 2015, shortly after the Supreme Court’s ruling in Obergefell caused the 5th Circuit Court of Appeals to affirm a district court ruling that the Texas ban on same-sex marriage was unconstitutional, making same-sex marriage legal in Texas and implicitly requiring that Texas courts accept divorce claims for same-sex marriages lawfully contracted out-of-state.

For the full story, access the June 2017 issue of LGBT Law Notes.