In January 2024, the First District Court of Appeals held that the same-sex consenting partner of a woman subject to nonspousal artificial insemination should be recognized as a “legal parent” where it has been established that the parties would have been married at the time of the child’s conception but for Ohio’s unconstitutional ban on same-sex marriage.
In re L.E.S., 2024-Ohio-165.
In the case at hand, a same-sex couple was not married at the time their children were born, but they had held a civil commitment ceremony. Marriage between same sex couples was not legal at the time of their commitment ceremony or at the time of the children’s conceptions and subsequent births. No litmus test was established for determining the “but for” question (i.e., whether parties would have been married but for the unconstitutional ban), but found “any number of factors may ultimately be relevant” to determining credibility and whether they would have bene married. The COA also cautioned trial courts to “proceed with caution,” because the court should not impose marriage on a party who would not have mutually assented.
