When the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex marriage is constitutionally required in every state, it still left the states to deal with parenting laws and how they would be affected by this new constitutional requirement. When a child is born to a woman who is married to a man, the law provides for a presumption that the man is the legal and biological father. But there is no such nationwide presumption in favor of a wife when her partner gives birth to a child. In this scenario, there is no assumption of biological connection between the child and the non-childbearing wife as there is between a child and husband of a childbearing wife. Yet many states are now litigating this exact issue, and often in favor of the non-childbearing wife. This make sense when given the fact that the purpose behind Obergefell is to give equal protection of the laws to same-sex couples, yet the law is not yet clear. This leaves couples to wonder where they stand if they separate and whether they will have the same legal rights to a child who they consider their own, even if not biologically related. And states are left to answer the question on a case-by-case basis unless and until state legislatures put in place concrete laws that clarify parenting laws for all scenarios, both same-sex marriages and couples who have children, as it now exists for opposite-sex marriages and couples who have children.
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