Ohio Supreme Court Rules Unmarried Same-Sex Partners Cannot Claim Parentage Under Artificial Insemination Statute
On April 28, 2026, the Ohio Supreme Court unanimously ruled in In re L.E.S. that courts cannot retroactively determine whether a same-sex couple "would have been married" to apply Ohio's artificial insemination parentage statute (Ohio Rev. Code § 3111.95). The decision leaves a significant gap in parental rights protection for LGBTQ+ families who used assisted reproduction before marriage equality became available in Ohio following the 2015 Obergefell decision.
| Key Facts | Details |
|---|---|
| What Happened | Ohio Supreme Court ruled against extending parentage rights to unmarried same-sex partner |
| Case Name | In re L.E.S. |
| Decision Date | April 28, 2026 |
| Ruling | Unanimous (7-0) |
| Key Statute | Ohio Rev. Code § 3111.95 |
| Practical Impact | Non-biological parents in pre-2015 same-sex relationships have no statutory path to parentage |
The Court's Reasoning Closes Door on Retroactive Marriage Analysis
The Ohio Supreme Court's unanimous decision establishes that Ohio Rev. Code § 3111.95 applies exclusively to married couples at the time of artificial insemination. Chief Justice Sharon Kennedy, writing for the court, rejected the argument that courts should analyze whether a same-sex couple "would have been married" if legal marriage had been available to them before the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges.
The case involved a woman seeking parental rights to a child conceived through artificial insemination during her relationship with the biological mother. The couple's relationship began before Ohio recognized same-sex marriage, and the non-biological parent argued that the court should apply a "but for" analysis—essentially asking whether the couple would have married if they legally could have.
The court found this approach unworkable. Justices noted that requiring courts to speculate about hypothetical marriages would create inconsistent standards and place judges in the position of making determinations about relationships that never legally existed. The ruling emphasizes that Ohio Rev. Code § 3111.95 uses the word "married" without qualification, and the court declined to read additional meaning into the statute.
How Ohio's Artificial Insemination Statute Actually Works
Ohio's artificial insemination statute, Ohio Rev. Code § 3111.95, provides that when a married woman conceives through artificial insemination with her husband's consent, the husband is treated as the legal father of the resulting child. The statute was designed to address parentage questions in heterosexual marriages using donor sperm.
The statute's language does not address same-sex couples or non-marital relationships. Before the In re L.E.S. ruling, some Ohio courts had applied the statute's principles more broadly, but the Supreme Court has now clarified that such extension is not permissible under current law.
For comparison, Ohio Rev. Code § 3111.02 establishes the general presumption that a child born during a marriage is the child of both spouses. This presumption has been applied to same-sex married couples since Obergefell, but only for children conceived after the marriage was legally recognized.
The gap identified by the In re L.E.S. ruling affects couples who:
- Used artificial insemination before June 26, 2015 (Obergefell decision date)
- Were not legally married at the time of conception
- Did not complete a second-parent adoption
What This Means for Ohio LGBTQ+ Families
The ruling creates immediate legal uncertainty for an unknown number of Ohio families. According to data from the Williams Institute at UCLA School of Law, approximately 29,000 same-sex couples lived in Ohio as of 2021, with roughly 15% raising children. While not all of these families used artificial insemination or face the specific circumstances in In re L.E.S., the decision affects a meaningful subset.
Non-biological parents in affected families now have limited legal options:
- Seek adoption of the child with the biological parent's consent, which requires the biological parent's cooperation and court approval under Ohio Rev. Code Chapter 3107
- Pursue a custody or visitation claim under Ohio Rev. Code § 3109.051, which grants courts discretion to award visitation to non-parents in certain circumstances
- Assert de facto parent status through case law, though Ohio courts have been inconsistent in recognizing this doctrine
- Advocate for legislative change to Ohio's parentage statutes
The decision does not affect same-sex couples who were legally married at the time of artificial insemination or who have already completed second-parent adoptions. These families have secure legal parentage under existing Ohio law.
Practical Takeaways for Ohio Families
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Couples currently planning families through assisted reproduction should marry before conception or embryo transfer to ensure both partners have clear legal parentage under Ohio Rev. Code § 3111.95
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Same-sex couples who used artificial insemination while unmarried should consult with a family law attorney about adoption options, even if they have since married
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Non-biological parents in longstanding relationships with children should document their parental role through written agreements, financial records, and other evidence that could support custody or visitation claims if needed
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Biological parents should consider executing powers of attorney and healthcare directives naming their partner as decision-maker for the child in case of emergency
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Families affected by this ruling should monitor the Ohio General Assembly for potential legislative responses that could create new pathways to legal parentage
Frequently Asked Questions
Does this ruling affect same-sex couples who married before using artificial insemination?
No, this ruling does not affect couples married at the time of conception. Under Ohio Rev. Code § 3111.95, when artificial insemination occurs during a valid marriage, both spouses are legal parents. The In re L.E.S. decision specifically addresses couples who were unmarried when the child was conceived, regardless of whether they later married.
Can a non-biological parent still seek custody or visitation in Ohio after this ruling?
Yes, but through different legal pathways. Under Ohio Rev. Code § 3109.051, courts may grant visitation to non-parents when it serves the child's best interest. However, this requires proving a significant relationship with the child and typically requires the court to find that the biological parent is unfit or that visitation is in the child's best interest—a higher burden than legal parentage would provide.
How many Ohio families are potentially affected by the In re L.E.S. ruling?
Exact numbers are unavailable, but the impact is concentrated among same-sex couples who used artificial insemination before Ohio recognized same-sex marriage in June 2015 and did not complete second-parent adoptions. Based on Williams Institute data showing approximately 4,350 same-sex couples raising children in Ohio, potentially hundreds of families may face uncertain parental rights depending on when their children were conceived.
What is the difference between legal parentage and custody in Ohio?
Legal parentage establishes a person as the child's parent with all rights and responsibilities under law, including inheritance, child support obligations, and decision-making authority. Custody is a court-ordered arrangement determining which parent has physical care and legal decision-making for the child. A legal parent has standing to seek custody; a non-parent must meet additional requirements under Ohio Rev. Code § 3109.04 to even request it.
Could the Ohio legislature change the law to help families affected by this ruling?
Yes, the Ohio General Assembly has authority to amend Ohio Rev. Code § 3111.95 or create new parentage provisions. Several states have updated their parentage laws following the Uniform Parentage Act of 2017, which provides gender-neutral language and addresses assisted reproduction for all couples. As of May 2026, no bill addressing this specific issue has been introduced in Ohio, but family law advocacy groups have indicated they plan to pursue legislative solutions.
Moving Forward After In re L.E.S.
The Ohio Supreme Court's ruling in In re L.E.S. highlights a gap in Ohio's parentage laws that leaves some LGBTQ+ families without clear legal protections. While the court's interpretation of Ohio Rev. Code § 3111.95 follows the statute's plain language, the practical effect creates hardship for families formed before marriage equality was available.
Families navigating these issues benefit from consulting with an experienced Ohio family law attorney who can evaluate their specific circumstances and identify the best path forward under current law.
This article discusses recent news and provides general legal commentary. It does not constitute legal advice. Every case is unique. Consult a qualified family law attorney for advice specific to your situation.