Is non-gestational mother in same sex marriage a parent under the Family Code?

Treto v. Treto, (Corpus Christi 2020) (13-18-00219-CV)

Link to Opinion

Facts:  Jennifer and Sandra married in New Mexico.  During the marriage, Sandra became pregnant with sperm given to them by a friend.   Both women took an active role in the pregnancy and the child's life after the child was born.  After Jennifer moved out, Sandra filed for divorce.  The trial court established Jennifer as a parent-conservator and ordered her to pay child support.   Jennifer filed a family law appeal and said she is not a "parent" because (1) she is not biologically related to the child, and (2) the Family Code does not recognize her as a parent.  Sandra says the Family Code must be read in light of two U.S. Supreme Court cases, Obergefell (legalizing same-sex marriage) and Pavan (permitting same-sex spouse to be on child's birth certificate as a benefit of marriage), and the host of benefits accorded married couples of the same sex.

Result:  The court of appeals affirmed.   The parties here do not fit within statutory definitions, which contemplate traditional gender roles and marriage between a man and a woman.  "[P]avan unequivocally extended Obergefell's reach to ancillary benefits of marriage including such important, but mundane things as completing the names of the parents on the birth certificate of a child." Interpreting Family Code § 160.106 (provisions relating to the determination of paternity apply to the determination of maternity) and § 160.204(a)(1) (presumption of paternity) together,  the Court gave effect to the ancillary benefits of a same—sex marriage, including the determination of maternity for the non—gestational spouse of a child born to the marriage.

This interpretation promotes stability in the family.  It is also consistent with the equal protection clause of the Fourteenth Amendment, which demands "that barriers to the full recognition of ancillary rights [of marriage] must be abandoned."


Obergefell, v. Hodges, U.S. , 135 S.Ct. 2584, 2607-08, 192 L. Ed. 2d 609 (2015); Pavan v. Smith,     U.S.    , 137 S.Ct. 2075, 2078-79, 198 L. Ed. 2d 636 (2017).

Read about other recent cases applying Obergefell here.