Ohio Supreme Court Limits Parentage Rights for Unmarried Same-Sex Partners in Artificial Insemination Case
The Ohio Supreme Court has issued an important decision for Ohio family law, LGBTQ+ parentage, and assisted reproduction cases. In In re L.E.S., Slip Opinion No. 2026-Ohio-1449, the Court held that Ohio’s artificial-insemination parentage statute, R.C. 3111.95(A), does not apply to same-sex partners who were not married when the children were conceived.
The decision addresses whether a nonbiological, unmarried same-sex partner can be recognized as a legal parent under a marriage-based parentage statute based on the argument that the couple “would have been married” if same-sex marriage had been legal in Ohio at the time.
The Ohio Supreme Court rejected that approach.
Background of In re L.E.S.
The case involved two women, P.S. and C.E., who began a romantic relationship in 2003. They lived together and exchanged bracelets symbolizing an engagement, but they never legally married. During the relationship, P.S. conceived three children through artificial insemination: one child born in 2012 and twins born in 2014.
The couple separated in January 2015, shortly before the U.S. Supreme Court decided Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage.
After the separation, C.E. sought to be recognized as a legal parent of all three children, or alternatively to obtain shared custody or visitation rights. The juvenile court declined to recognize C.E. as a legal parent, finding no statute or case law authorized that result under the circumstances.
The Dispute Over Ohio’s Artificial-Insemination Parentage Statute
The central statute at issue was R.C. 3111.95(A), Ohio’s non-spousal artificial insemination statute. The statute provides that when a married woman conceives through artificial insemination with her husband’s consent, the husband is treated in law as the child’s natural father.
The First District Court of Appeals concluded that the trial court should determine whether the couple “would have been married” at the time of conception but for Ohio’s former ban on same-sex marriage. If so, the First District reasoned, R.C. 3111.95(A) could be applied to C.E. in a gender-neutral way.
The Ohio Supreme Court disagreed.
Ohio Supreme Court Rejects the “Would Have Been Married” Test
The Ohio Supreme Court held that R.C. 3111.95(A) applies by its plain terms to married couples. Because P.S. and C.E. were not married when the children were conceived, the statute did not provide a basis for recognizing C.E. as a legal parent.
The Court also held that neither Obergefell v. Hodges nor Pavan v. Smith required Ohio courts to retroactively apply the statute to unmarried same-sex partners.
According to the Court, Obergefell and Pavan require states to give married same-sex couples the same marriage-related benefits provided to married opposite-sex couples. But those decisions do not require states to extend marriage-based statutory benefits to couples who never married.
The Court acknowledged that a married same-sex spouse may be able to rely on R.C. 3111.95(A), even though the statute uses the word “husband.” But the Court drew the line at unmarried couples.
Why the Court Found the Test Unworkable
The Supreme Court also found the First District’s proposed “would have been married” inquiry impractical. The Court explained that determining whether a couple would have married under different legal circumstances would require speculation about personal, financial, and relational choices.
The Court further reasoned that the proposed inquiry resembled common-law marriage, which Ohio abolished in 1991. Evidence such as cohabitation, engagement, rings, commitment ceremonies, or shared intent could resemble the type of evidence historically used to prove common-law marriage. The Court concluded that Ohio courts may not revive that concept through a parentage case.
Holding of In re L.E.S.
The Ohio Supreme Court reversed the First District Court of Appeals. The Court held that Ohio’s parentage statutes do not authorize a trial court to determine whether an unmarried same-sex couple “would have been married” for purposes of applying R.C. 3111.95(A).
The case was remanded to the First District to address remaining assignments of error, including issues related to custody and visitation that had not yet been decided.
Why This Decision Matters for Ohio Families
In re L.E.S. is significant for Ohio family law attorneys, LGBTQ+ parents, unmarried partners, and families formed through assisted reproduction.
Key takeaways include:
• Marriage matters under R.C. 3111.95(A). The statute applies to married couples, not unmarried partners.
• Same-sex spouses must be treated equally. Under Obergefell and Pavan, marriage-based benefits must generally be applied equally to married same-sex couples.
• No retroactive marriage test. Ohio courts may not decide that a couple “would have been married” and then apply marriage-based parentage rights retroactively.
• Intent to parent may not establish statutory parentage. Commitment, cohabitation, engagement, or shared parenting intent did not bring C.E. within R.C. 3111.95(A).
• Other legal planning tools remain important. Families using assisted reproduction should consider available legal protections, including marriage, adoption where available, parentage orders where available, and written custody or co-parenting agreements.
Practical Considerations for Unmarried Same-Sex Parents in Ohio
The decision underscores the importance of proactive legal planning. Unmarried partners who intend to raise children together should not assume that shared intent, caregiving, or family structure will automatically create legal parentage under Ohio’s artificial-insemination statute.
Families may wish to consult an Ohio family law attorney before conception, birth, or separation to evaluate available options for securing parental rights and responsibilities.
Final Thoughts / Summary
Family planning is deeply personal, and for LGBTQ+ parents, it can also involve legal questions that should be addressed before a dispute ever arises. Whether you are considering assisted reproduction, adoption, marriage, co-parenting agreements, or other ways to protect your family, it is important to speak with an experienced Ohio family law practitioner who understands both the legal landscape and the real-world concerns LGBTQ+ families face.
As a member of the LGBTQ+ community, I bring not only legal experience, but also my own perspective and lived understanding of how meaningful—and sometimes complicated—family formation can be. Every family deserves thoughtful planning, clarity, and protection.
If you are an LGBTQ+ parent, intended parent, or partner beginning the family-planning process, consider scheduling a consultation to discuss your options and make sure your parental rights and responsibilities are protected from the start. Click here to book a consultation now.
Disclaimer: This article is for general informational purposes only and does not create an attorney-client relationship or constitute legal advice. All attorney’s practice differently. For advice about your situation, consult a qualified Ohio family law attorney.
Colton D. Williams, Esq.
Williams Family Law & Litigation, LLC
Phone: (216) 246-3792
Email: colton@williamsfamilylawlitigation.com
Website: williamsfamilylawlitigation.com
