Traditionally applied to the husband of a wife who gives birth, the marital presumption of parentage—also called the marital presumption of legitimacy—assumes that children born to a married couple are products of that marriage and recognizes both members of the couple as parents. This presumption exists in some form in every state but historically could be rebutted by evidence proving that it was impossible for the person who did not give birth to be a biological parent of the child.
The landscape is changing, though. For example, in Pavan v. Smith, the Supreme Court found that the wife of a woman who gives birth is entitled to the same presumption of parentage that a similarly situated husband would be, even when the spouse explicitly does not contribute genetic material. The court considered the presumption in that case to be part of the “constellation of benefits” and rights linked to marriage to which same-sex couples are entitled under Obergefell. This ruling and others have effectively left biology behind and expanded the presumption of parentage to all spouses of gestational parents, making it accessible for many more members of the LGBTQ community and giving greater recognition to parenthood based on intent rather than biology. In fact, one judge in New York even attempted to create a new standard for rebutting the presumption that is LGBTQ-inclusive, focusing more on the best interests of the child. Despite this significant progress, same-sex couples who cannot gestate are still treated differently under law when it comes to the application of the presumption of parentage.