presump of maternityTexas Family Code section 160.106 says that the provisions of Chapter 160 relating to the determination of paternity apply to a determination of maternity in Texas. So, when a heterosexual couple is married, the father is presumed to be the father of the child. The law provides other instances when a man is presumed to be a father in a heterosexual relationship such as when the father signs an acknowledgement of parentage or allows himself to be named on the birth certificate. Interestingly, paragraph 5 of 160.202 allows for a presumption of paternity for a man who, during the first 2 years of a child’s life, resides in the household with the child and represents to others that the child was his own. Could this section be applied to a lesbian couple (married or not), when a child is born during the marriage to one mother, but the non-biological mother holds out to the world that the child is her own as well?According to 160.106, the same paternity presumption would apply to the maternity issues.

However, the Houston 14th Court of Appeals in 2014 questioned the application of 160.106 in the case of In re MMM. The MMM case involved an issue of assisted reproductive technology, so not exactly the same as a same sex relationship. The birth mother was undisputedly not the genetic mother of the children because the children were conceived through reproductive technology using donated sperm and egg. After the children’s birth, the biological father sued to establish his paternity. The Houston Court distinguished between a “presumption” of maternity versus a “determination” of maternity in 160.106, and restricted that statute’s interpretation to the strict wording. However, this case has to be viewed from the very narrow factual lens presented.

In other states, the similar statute from the Uniform Parentage Act has been interpreted to apply to lesbian non-biological mothers. So, if a nonbiological mother held out to the world that she was the mother of the child as if the child was her own, then the paternity presumptions might arguably apply to such situation. Likewise, in the event that Texas begins to recognize same sex marriages, the same parentage presumptions related to men – such as the presumption of paternity for a child born during a marriage – might be held to apply to a Texas nonbiological mother.

See Presumption of MATERNITY in Texas? at my other blog Dallas Divorce Law Blog.