Oklahoma Court Grants Parental Rights To Sperm Donor; Removes Second Mom From Birth Certificate

Family court (by David Lat).

On February 13, 2023, the Seventh Judicial District of the State of Oklahoma issued a pretty shocking Letter Ruling determining that a sperm donor was the legal parent to a child resulting from his donation, and that the nonbiologically related mother -- the now ex-spouse of the birthing mother -- is not a legal parent to the child.

A Little Background

The case of Rebekah Wilson and Kris Williams may sound familiar, as the back and forth in the courts has grabbed the headlines a few times already. The facts begin ordinarily enough. Wilson conceived through sperm donation, and gave birth in 2019 during her marriage to Williams. Williams was named as the second parent of the child on the child's birth certificate.

When the couple divorced in 2021, Wilson asked that Williams be removed from the birth certificate. An Oklahoma judge initially agreed, ordering that Williams be removed from the child's birth certificate, and the sperm donor(!) placed on the birth certificate. The judge, however, vacated that order, pending further hearings on the matter. Last week, the judge decided that Oklahoma law supported her initial instincts, issuing the ruling that Williams failed to take further action to secure legal rights as a parent. The judge also concluded that Oklahoma law did not otherwise support her parentage claims, and therefore Williams should be removed from the child's birth certificate.

The Letter Ruling Had Some Interesting Findings

The Letter Ruling reviewed a number of facts in the case, some of which appeared supportive of Williams's claims, and others, especially as framed by the court, less helpful. On the helpful side, the court references a publicly available article from the Oklahoma-based Metro Family Magazine entitled "Time To Be Brave," written by Wilson, where she discusses her relationship with Williams, their plans to have a child together, and their process of selecting a donor. The court also noted that both Wilson and the sperm donor formally entered into a "Known Sperm Donor Agreement," which was meant to bind the parties.

But less helpfully for Williams, the court also noted that, "Although both parties signed the agreement, neither believed it to be valid." Oh really? That's a big inference to draw based on the position of one of the parties now that litigation has ensued, and there is an interest in making self-serving statements. The court further found that Williams was present at the birth of the child. "Williams filled out the birth certificate. Wilson signed it, although she disputes being aware of what she signed." Wilson didn't know what it meant to sign a birth certificate with Williams named as the other parent? But didn't she, like, write a whole magazine article about starting a family with Williams? It's pretty aggressive to argue that she didn't want that project to come to its natural fruition.

Is This Sexual Orientation Discrimination, Or Could It Happen To Any Nongenetic Parent?

A few years ago, a similar situation arose between a same-sex couple in Idaho where the birthing (and genetic) mother asked that her ex-wife, the nonbirthing and nongenetically related parent to their child, be removed from the birth certificate. There, too, the court ruled that the other parent had failed to take sufficient further steps -- i.e., adoption -- to secure her parental rights, and should be removed from the birth certificate. The question was posed as to whether this was about the couple being gay or whether the law applied equally to all parents, regardless of sex. The Idaho Supreme Court ruled that the law applied equally to same-sex couples as well as different-sex couples, and that a nonbirthing/nongenetically related parent (regardless of sex) would face the same legal scrutiny. The dissent disagreed, arguing that the court would have been unlikely to treat a different-sex couple the same way.

Here, Oklahoma is direct in saying that this is, indeed, about the couple being of the same sex. In the Letter Ruling, the judge describes how "The Uniform Parentage Act that Oklahoma adopted was enacted in 2006 and does not take into account same-sex marriage, and there is no presumption that the wife of the mother is automatically the presumed parent of a child born during the marriage. "Williams identifies as female and was born a woman, and therefore cannot establish a father-child relationship under 10 0.S. Sec 7700-201(B) or have the benefit of paternity 10 O.S. Sec 7700-204, as Oklahoma has not yet adopted gender neutral language in the Uniform Parentage Act."

Oklahoma attorney Noel Tucker found the facts of the case unfortunate, but believes that the judge got it right under existing Oklahoma law. Tucker explained that the Oklahoma Uniform Parentage Act does not discriminate against same-sex parents, "but takes into account the reality that it will always take a sperm and egg to make an embryo." When a parent is not biologically related to the child, Oklahoma has other applicable laws -- artificial insemination, gestational carrier, and adoption statutes -- to provide mechanisms to affirm, deny, or establish legal parental rights. In this case, "Williams did not take advantage of the protections she had available to her."

Tucker believes this case should be a wake-up call for couples contemplating growing their families with donor gametes or embryos to consult with an experienced third-party reproduction attorney to guide them through the legal process.

Chilling Effect For Known Donor Arrangements?

In Wilson's predivorce magazine article, she described her and Williams's reasoning for seeking out a known sperm donor. They had seen Williams's older child "deal with the reality of not knowing his biological family due to the circumstances of his adoption," and therefore were especially interested in a known donor. That interest in protecting the child's right to know their genetically connected family and foster that relationship is laudable. Organizations like the US Donor Conceived Council, representing the voice of donor-conceived persons, have been clear in their message that donor-conceived people should have the right to know their genetic parents. The organization was instrumental in passing a law in Colorado in 2022 that, starting in 2025, prohibits anonymous egg and sperm donation and requires all donors to be counseled as to the best interests of donor-conceived person and agree to allow their identifying information to be provided to any person conceived from their donation upon reaching 18 years of age.

Here, the donor later decided that he wanted to be recognized as a legal parent of the child, and the court agreed. Will rulings like this discourage parents via egg and sperm donation from wanting to foster and support a relationship between their child and the donor out of legitimate fear that the donor could usurp the nongenetic parent's legal rights?

Do The Adoption

Here, as well as in the Idaho case, the safety measure for parents through donation is clear. The at-risk parent needs to adopt their child. Gena Jaffe, founder of Connecting Rainbows, has been preaching this message for years. As an attorney, she was shocked and offended to learn that she and her wife would need to go through an adoption process to secure their legal rights to their children. Since that time, she established Connecting Rainbows as a resource for parents in the LGBTQ+ community to educate them about the issues that they face, and to connect them with attorneys knowledgeable in the area who can help them with next steps.

Every State Is Different

In good news, some states, such as California and Colorado, have recognized the precarious legal position of parents through assisted reproductive technology, and have created simplified adoption processes for those parents. In other states, parents' only option may be an old-school style adoption. As Jaffe explains, it's offensive. And can be expensive. But no one wants to be in Williams's current position.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.