Melissa Harris-Perry: Welcome to the Takeaway. I'm Melissa Harris-Perry. I'm coming to you from Winston Salem, North Carolina, while my crew rocks it for you up in New York City. It's good to have you with us. Now, let's start in the Sooner State today, with a very complicated story.

This is the story of Kris Williams and Rebekah Wilson. Kris and Rebekah married in Oklahoma in 2019 and for these two women, it was supposed to be the start of something, a family, a life together, a story. They decided to have children. They identified a sperm donor Harley Vaughn through an app, Just a Baby and Rebekah carried and gave birth to a child later that year.

Thanks to legal precedent's set after the passage of federal marriage equality, the baby boy's birth certificate identified both Kris and Rebekah as mother and mother. According to media reports, they all agreed that the sperm donor, Vaughn, would have a role in the baby's life, but from a distance. Two years later, the marriage began to unravel, a contentious divorce followed and Rebekah moved in with Harley Vaughn, the sperm donor.

Now earlier this year, Oklahoma County Judge Lynne McGuire ruled in favor of removing Kris's name from the birth certificate and replacing it with the name of the sperm donor, citing a failure to establish parental rights because Kris had not adopted their son. Kris Williams spoke to Oklahoma News 4 in April about Judge McGuire's ruling.

Kris Williams: Well, I want people to know that it's not just the LGBTQ community that's vulnerable in this. We have other families that can't have biological children and use donors in means to have families. I think it's horrible that we have to take an extra step in order to solidify our space for us to be legally connected to our children.

Melissa Harris-Perry: Now, the child is currently living with Rebekah, who's filed a protective order against Kris, alleging that Kris was physically and verbally abusive towards her, a claim Kris denies. Last week, Judge McGuire heard a motion to reconsider and did. The judge reversed her own order to remove Kris from her now two and a half-year-old son's birth certificate.

Judge McGuire did, however, allow the victim protective order to remain in place for five years, during which time Kris will not be able to see her son.

Okay, phew. There are a lot of unanswered questions here and domestic court cases are invariably challenging, complicated and profoundly emotional, especially when young children are involved. What we want to zoom in on here is an issue highlighted by this case, what it means legally to be recognized as a parent with parental rights.

For more, I'm joined now by Toby Jenkins, CEO and Executive Director for Oklahomans For Equality. Welcome to the Takeaway, Toby.

Toby Jenkins: Thank you.

Melissa Harris-Perry: Now, Toby, before we start, I do just want to acknowledge for our listeners in terms of full disclosure, that you do know Kris Williams through your work in LGBTQ Policy Spaces. Is that right?

Toby Jenkins: Right.

Melissa Harris-Perry: All right, now just a few other things I want to establish here. In the case of a marriage between two people of the opposite sex, so between a man and a woman, what are the rules for establishing parentage and parenting right, when a child is born during that marriage?

Toby Jenkins: Bio parents is our law and our statutes in the state of Oklahoma Reed, the bio parents. Their names are put on the birth certificate. They are acknowledged to be the parents. If they're legally married, both of those parents assume custody, whether they're married or whether they're both single adults, they still both have parental rights under our statutes.

Melissa Harris-Perry: I want to zoom in on the marriage piece for just one more second to establish this around opposite-sex marriages. If a woman is pregnant by someone, who is not the person who she marries, is it the presumption of Oklahoma State law, that the husband is nonetheless the parent? In other words, does the husband's name, as a matter of practice, go on a birth certificate or would in an opposite-sex marriage, would a husband need to either establish paternity through a paternity test and or adopt their child?

Toby Jenkins: Not necessarily in that particular situation. It is common that if the female person is married, it is assumed that the person she's married to is the father.

Melissa Harris-Perry: When one is married in an opposite-sex marriage, the presumption is parentage. If the name of both members of a marriage go on a birth certificate in the context of an opposite-sex marriage, then for marriage equality, shouldn't both parents go on a birth certificate as a standard practice of same-sex marriage as well?

Toby Jenkins: That has been the practice for the last few years, since we achieved marriage equality in Oklahoma, where if the couple were married, then both partners were listed on the birth certificate.

Melissa Harris-Perry: Now, in the clip sound that we heard earlier from Kris, she mentioned something quite close to my heart, which is the issue of ART or assisted reproductive technologies. Many of us, whether in same sex or opposite sex marriages, may make use of IVF, gestational surrogacy, other forms of assistance to make our families happen. I know that laws vary by state, in terms of birth certificate. In the case of, for example, gestational surrogacy or IVF, again in general, do whose names would typically go on the birth certificate?

Toby Jenkins: In those particular cases, if there's a legally recognized marriage, they're still going to put the parent's name. Now there's a complication within our statute. If you enter into a marriage and you bring a child into the marriage, then whether you made the child outside the marriage, you still have to adopt that child and that's what our statutes been, if the child is made outside the marriage.

That was the complexity that we found ourself, where we had lots of couples, same-sex couples, who had created families and had used methods to have gestational pregnancies. Even though their names would be both on the birth certificate because they were legally married, it still required that for additional protection the non-biological parent would have to adopt that child and they couldn't do it unless they'd been married for a year.

That when we got married equality in Oklahoma, almost a year to the date, after many of our same-sex couples had completed their year of marriage, they went back to the courthouse to adopt, we called it step-parent adoption or second-parent adoption. Now, this was what was required of even heterosexual couples, if they had entered into the marriage and the child had been conceived outside the marriage.

Melissa Harris-Perry: Is there something in the judge's initial decision that sets off alarms about the precarious of parental rights?

Toby Jenkins: First of all, we're now seven years into this and to be transparent, I live in Oklahoma and it is my home and it's where I will remain, but we are not any great example of parental law or family stability. We lead the country in some of the highest divorce rates across the nation, yet are one of the most conservative religiously and politically.

Our judges in all of our courtrooms and all 77 counties are constantly having to work through complicated custody issues associated with the dissolution of marriages. Because of that in the last seven years, they've gotten pretty astute at how to handle the latest expansion and understanding of what creates a family in the realms and boundaries of marriage and child custody.

This particular judge ignored precedent that has been set repeatedly now in courtrooms. I would say more than 60% of our courtrooms across our state, basically ignored the precedent that had been set, that the two parents listed on the birth certificate were the acknowledged parents of that child and basically, ignored Kris's parental rights because from what I can tell some internal bias. It certainly wasn't standard and wasn't normal for what we saw happen in family courtrooms for several years now. That is what's troubling, is what point are they trying to make when they're ignoring the precedent that has been set for the last several years by multiple judges in multiple district courts?

Melissa Harris-Perry: Now, the judge did reverse the decision and returned Kris's name to the birth certificate, in what sense was there pressure from the appellate court?

Toby Jenkins: They appealed that ruling and the courts came back and said, "You have made a mistake," and so she reversed the decision.

Melissa Harris-Perry: You mentioned Oklahoma being your home. Are there states that are managing these questions in a way that feels more equitable to you?

Toby Jenkins: I believe that there are probably states that don't have the complexity of some of the things that we have had to deal with to become modern in our interpretation of family law. Until recently in the State of Oklahoma, a single unmarried female person could not have an insemination. We even had some complications with some individuals who were in relationships, where they would just go into the doctor's office and the doctor would fudge and say this is their spouse, whether those were same-sex couples or opposite-sex couples. That had to be updated and changed by precedent, not necessarily by statute.

There were the complexities of that due to just our court systems and our very narrow understanding of the legality of an individual's right to be able to have a child.

Melissa Harris-Perry: Talk to me about what it would mean to adopt. Is it expensive? Is it pretty straightforward? When we say one would need to go through an adoption process, what does an adoption process look like in this case?

Toby Jenkins: Second parent adoption usually can average about $2,000 to $5,000. It requires lots of public notices, requires that the other bio parent give up their parental rights and has to appear in court. For same-sex couples, it's a process that they're pretty familiar with now. We certainly have several good attorneys across the state who have been able to navigate this and be able to present this in an understandable fashion.

For judges sometimes in smaller rural district courts, who this might be the first time they've ever had a same-sex couple before them, this has to take place a year after the couple have been legally married and the process is pretty significant.

Some couples, bristle at the terminology sometimes called stepparent adoption. They'll bristle at that, that they are not the stepparent, they have always been in the child's life. We're instrumental in the child coming into this world and it's a process that was set by precedent when district judges across the state said, "This is what opposite-sex couples have to do, so this is what we're going to have same-sex parents do."

Melissa Harris-Perry: Toby Jenkins is CEO and Executive Director of Oklahomans For Equality. Thank you for joining us today.

Toby Jenkins: Thank you for the opportunity.

[00:13:28] [END OF AUDIO]

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