Polyamory and Pregnancy: Legal Stuff

Removed gendered references to the other (ie not pregnant) bio parent. Corrected some info. A few other minor changes. Revised Jan 15, 2017.

Probably the biggest potential hassle in being polyamorous and pregnant is the birth certificate. (Yup, legal messes are always the worst kind.) In this case, it’s the issue of legal paternity.

First off, and to the best of my knowledge, as long as you aren’t legally married, you can do pretty much whatever you want with the birth certificate. Leave the “father” field blank until you have get a DNA test, put your primary down, put the partner your new baby looks like down… Seriously, if you aren’t married, whoever you say is the legal parent, is the legal parent.

If you are legally married, then it can get complicated. (Disclaimer – I am not a lawyer, I do not know the law throughout the US, never mind the world. I have given birth in two different states, and know polyam people in a few other states, and so far this issue seems common.) Y’see, some states have this rule that if you are married, your legal spouse’s name goes on the birth certificate automatically. It’s possible you were artificially inseminated to be sure that a specific partner would be the other bio-parent–if you aren’t legally married to that partner you still need to jump through hoops to prove it. (My second to last child, my husband and I had been separated for three years, he lived half the country away and we were in the middle of a divorce–they still wanted to put his name down.)

So, if you are married, and either don’t know who the other bio-parent is or know it wasn’t your legal spouse, what are your options?

Option 1: Save up for DNA testing. Yes, there are DNA tests you can get for $30 dollars through the mail – for this, they don’t count. DNA testing that will be accepted as legal evidence can run up to several hundred dollars (we paid $400 6 12 years ago). Save the money, and inform the hospital ahead of time that you will be having the test done. You’ll have to jump through some legal hoops and forms after the birth to get the certificate straightened out, but it’s pretty straightforward.

Option 2: Amniocentesis – there is a way of testing DNA through an amnio. Obviously, all the possible side effects apply. It is more expensive then regular testing, though if you need to have an amnio for health reasons, you may be able to tack the DNA test on without much extra cost. Big advantage: when the clerk shows up in your room after labor to take care of the birth certificate, you have the papers proving paternity right there.

Option 3: Put your legal spouse’s name down and don’t worry about it. You can get the $30 test later just to know what the medical history is, and otherwise who cares, you are all parents together anyway. Upside – cheapest option with the least hassle. Downsides – emotional impact of the other biological parent of your child not being acknowledged as the legal parent and/or not being certain who the other bio parent is. Some people won’t care, some will – a lot. Possibly greater expense down the line if for any reason you need to change the birth certificate to have other bio parent’s name.

Biggest thing – don’t be blindsided. Happened to me twice, cuddling new baby, happily enjoying motherhood and not a care in the world – bam legal shit. You can speak with a lawyer, your local health department, or the birth registrar at the hospital about the rules your state, so you know in advance what you are getting into.

This post is part of the Polyamory and Pregnancy blog series.

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11 thoughts on “Polyamory and Pregnancy: Legal Stuff

  1. Thanks for this. Not actually a concern for my particular polycule, but it brought me to your page, and you’re amazing. You’re doing good work. Keep it up.

    Thanks,
    Moose

  2. Thanks for this. Not actually a concern for my particular polycule, but it brought me to your page, and you’re amazing. You’re doing good work. Keep it up.

    Thanks,
    Moose

  3. This is what we have done…,my primary husband is listed on the birth certificates As the father BUT we raise the kids to know the truth. With that, comes a hyphenated last name….such as ‘Thomas Allen seconds hubby’s last-first hubby’s last”. They are both great fathers and both deserve the credit. So we love it! The kids do as well now that they are old enough to know. 🙂

  4. This is what we have done…,my primary husband is listed on the birth certificates As the father BUT we raise the kids to know the truth. With that, comes a hyphenated last name….such as ‘Thomas Allen seconds hubby’s last-first hubby’s last”. They are both great fathers and both deserve the credit. So we love it! The kids do as well now that they are old enough to know. 🙂

  5. Greetings–reading about birth certificates online because my two male partners and I are all listed as co-parents on our kid’s BC after she was born to a surrogate, and we were wondering if that had happened before. But especially in CA, one has the option of pursuing a triple parent BC, too.

    1. Thanks for sharing your experience!

      I’ve only heard of triple parent birth certificates happening through court order, which means you need to wait until after the baby is born, get the default two-parent birth certificate (though you can sometimes leave “father” blank) and then go to court to get the third parent added. I know it has been done in Florida, California, England, and (I think) New York.

      Were you able to get the three parent birth certificate at the time of the birth? If so what kind of paperwork was needed?

      1. We went to get our birth certificate at the usual pre birth hearing. We argued we should all be allowed on the form. We argued that California’s SB-274 allowed 3 parents, but the judge reasonably countered that there has to be detriment shown first, and with no detriment (because no baby yet) that didn’t apply. But there was a state law that said the parents on the surrogacy contract were the parents for the BC, and while that was in reference to 2 parents in conflict with a surrogate, the judge applied it to our case. Our belief, too, was that we my have been the first poly family on a BC in the USA.

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