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Same-Sex Couple Challenges Nebraska Over Parental Rights

November 16th, 2021

Two Nebraska women are suing the state over their parental rights as they claim the state discriminates against same-sex couples.
Two Nebraska women are suing the state over their parental rights as they claim the state discriminates against same-sex couples.

Two women in Omaha and their children recently initiated legal action against the state of Nebraska’s health department after the department rejected the women’s request to be named as legal parents on their sons’ birth certificates. This case questions the role of parental rights held by LGBTQ+ couples.

How the Case Arose

In 2002, the two women began a family through the use of assisted reproductive technology. Each woman gave birth to one of the family’s sons.

The women never married and today are no longer a couple. A court order, however, was created stating that the women both have some degree of parental rights. 

The couple requested they both be acknowledged on their son’s birth certificates. The Nebraska Department of Health and Human Services, however, denied this request. The Department also commented that the only method for legal parentage in the state is through adoption, biological connections, or presumption. The women in this story argue that the options are not available to them. 

The Basis of the Lawsuit

Nebraska law prohibits unmarried non-birth parents from engaging in second-parent adoption. As part of their lawsuit, the women allege that Nebraska’s law is discriminatory. The women find the law discriminatory because when it comes to establishing parentage of children through voluntary acknowledgment after the child’s birth, the law classifies unmarried same-sex couples differently from different-sex couples who are not married.

The lawsuit also argues that the health department is violating the Constitution’s equal protection and due process clauses by refusing to apply state law in a similar way to same-sex and different-sex parents who are not married. 

The parents argue that being acknowledged as the children’s parents would make sure that both of the parents can make decisions about child care. 

Nebraska’s department of health denied these requests. Consequently, the lawsuit by the parents seeks that the department apply state law connected to voluntary acknowledgment in a gender-neutral manner. 

Response to the Case

A lawyer on behalf of the parents has stated that the case offers an example of how families’ attempt to protect their parental rights can be hampered by gender-specific language that does not support the evolving nature of families. 

Parental Rights in the States

Nebraska is one of 35 states with laws recognizing parents who do not carry or give birth to children as legal parents if a couple is married but which do not have clear laws addressing unmarried couples. Currently, fifteen states and Washington D.C. recognize the non-gestational parent as a legal parent regardless of marital status. 

One suggested solution, the Uniform Parentage Act, seeks to address the difference in parentage laws across the country. The Act “provides states with a uniform legal framework for establishing parent-child relationships.” It has been adopted or introduced in a handful of states, but Nebraska is not one of them.

Following Noteworthy LGBTQ+ Cases

Despite the Obergefell and Masterpiece Cake Shop decisions, countless uncertainties remain about the nature of LGBTQ+ rights in this country. Each week, the Universal Life Church’s blog focuses on documenting the most notable of cases that question the extent of these rights. Our blog is written in a manner that examines both sides and which can be quickly understood by readers.

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