The Hawaii Supreme Court is currently considering a case that raises the question of how consent to having a child is determined in same-sex marriage, as well as the implications of this determination on parental rights. It represents the first Supreme Court case in the country addressing the issue of child support for same-sex couples.
The case involves a lesbian couple that was married in 2013. Between January and September of 2015, one member of the couple was deployed on military duty. While she was away, her then wife got pregnant. After returning from military duty, the woman filed for divorce and sought to relinquish her parental rights.
The debate now is whether the woman in question gave consent to her wife about getting pregnant. Under the Marriage Equality Act in Hawaii, if a woman gives birth to a child, her spouse is presumed to be the parent—irrespective of their gender.
This case seeks to set different standards for determining parental consent with same-sex couples—which puts the concept of marriage equality to the test.
In their discussions, the justices compared the scenario in question to other, defined scenarios concerning parental rights. For instance, if a woman gets pregnant after stopping her birth control without her husband’s knowledge, what are his parental rights? What about if a woman gets pregnant by committing adultery?
The Court has displayed caution about treating same-sex couples differently than heterosexual couples. As this case is the first of its kind to be tried in any state’s Supreme Court, it is being closely watched by LGBTQ advocacy groups around the country. The Court’s ruling could be used as a precedent for future same-sex divorce cases in other states.