Who’s Your………Parent?

Legal vs. Biological Parent

Biological parentage is easy to establish these days: a DNA test can indicate with 99.999% probability that an adult and a minor are parent and child, or it can rule out the possibility that a particular adult and child are related. However, establishing the legal relationship between an adult and a minor can get a lot more complicated.


Until fairly recently, there was virtually no question about motherhood; if a baby was conceived and gestated in your body and you delivered it, you were the legal as well as biological mother. With few exceptions, that’s still true, but today there are things like surrogate mothers who carry and deliver someone else’s baby, and in vitro fertilization (IVF) techniques that allow a woman to carry a baby that might result from her egg and a sperm donor, someone else’s egg and her husband’s sperm, someone else’s egg and a sperm donor…..science continues to multiply the options. While the law is much slower to change, nor does it always have provisions that cover new circumstances.

In the case of surrogate mothers, Texas law does provide that if there is a written agreement between a woman and the intended parents of a child for that woman to carry and deliver the baby, the birth mother can relinquish all her rights in favor of the intended parents. However, this must be a formalized, written agreement, BEFORE the pregnancy begins, and it would be very unwise to attempt this process without legal advice.

If a woman has a baby during a marriage to a man, the law presumes that the husband is the father, although that can be challenged (more on that later). But after the SCOTUS decision in Obergefell, a woman having a baby in Texas may be married to another woman. Is that wife presumed to be the other parent? This is such a new development that there are no court decisions, and no written law, on that question yet. If you’re a woman married to a woman who’s having a baby, it might be safest today to go through the process of adoption to make sure you have equal parental rights and responsibilities.


Because the law “doesn’t like uncertainty,” husbands have always been presumed to be the fathers of any children born during (or within 300 days of the end of) a marriage. That hasn’t changed, but that presumption can be challenged or overcome. If both parents and the biological father complete an Acknowledgement of Paternity (AOP), the biological father, not the husband, becomes the legal father of the child. If one or both of the spouses do not agree to complete an AOP, the biological father can in many cases ask for a DNA test; if that test confirms that he’s the father, he can ask a court to declare him the legal father. On the other hand, if a man is alleged to be the father of a child, today he can request DNA testing to confirm or rule out that he is the biological father. If he isn’t, a court can find that he has no legal responsibility for the child, even if he is married to the mother at the time the child is conceived or born.

Here, too, Obergefell raises some questions that the law hasn’t answered yet. If a man fathers a child while he is married to another man, is the other husband a “presumed father” to the child? Until the legislature sorts out questions like these, it would be a good idea for the non-biological father to go through the adoption process to ensure his parental rights.

Establishing parentage is more complicated than it used to be, and there are many more possible twists and turns than those discussed here. If you’re struggling with a parentage issue, our family law attorneys can help you understand what your options are, and can advise you on what the likely outcomes of those options might be.