Texas family law was written before marriage between same-sex partners was recognized. Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex. A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.
The appellant had a child at the time of the marriage and the parties discussed having a child together. A friend of the parties agreed to be their sperm donor. They agreed the appellee would carry the child. According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment. The appellant accompanied the appellee to most of her doctor’s appointments. She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.
The appellant argued “parents” are defined as a mother and father in the Texas Family Code. The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.