Who is a Parent in South Carolina?

It seems like a question with the most straightforward of answers: who is a parent? But the answer is not as simple as it seems at first glance. Is a parent someone who contributes genetic material to a child? Usually the answer is yes, but not always; someone may be a “biological parent,” such as a sperm or egg provider, or a person who surrenders a biological child for adoption. But not every biological parent has parental rights in the eyes of the law. And not every legal parent has a biological or genetic connection to their child.

Is a parent someone who gives birth to a child? Again, the answer is yes...sometimes. Many parents give birth to their children, and their spouses, if they are married, are legally presumed to be the child’s other parent. But giving birth alone does not a parent make; a surrogate gives birth, but is not, legally speaking, the child’s parent.

Well, then, a parent must be someone who cares for and raises a child, right? That certainly gets to the heart of what parents do, but not everyone who raises a child is considered a parent. Stepparents, foster parents, grandparents and other relatives may serve in a parental role, but that doesn’t necessarily make them parents. However, under some circumstances those people may be adjudicated “de facto parents” and given some parental rights under the law.

In short, you are a parent if the law says you are. And the law, like families themselves, is constantly evolving.

Understanding Legal Parentage

The most common way to become a legal parent is for a man to impregnate a woman, for her to give birth, and for their names to appear on the birth certificate. If they are married, in most states the man is presumed to be the father of the child (and in fact this is true even if someone else is the biological father). If the man and woman are not married, in some states they may sign a document acknowledging that the man is the father, or one of them may need to ask a court to establish paternity.

Adoption is, of course, another way to become a legal parent. In an adoption, the legal rights of a child’s biological parent or parents are severed, and the adoptive parent or parents take on all legal responsibilities and rights that come with parenthood, including the obligation of support and the right to inherit.

For a long time, giving birth (in the context of marriage) or adoption were the only options for individuals who wanted to become parents. Assisted reproduction technology (ART) and a greater acceptance of parenthood outside marriage have expanded the choices for hopeful parents. They have also complicated the question of who is a parent and who is not, and required the law to change in order to keep up.

South Carolina Parentage Law

If you are hoping or planning to be a parent in South Carolina, you may need to to take special actions to make sure the law recognizes your relationship to your child. Why is a legal relationship important? As mentioned above, legally cementing a parent-child relationship creates certain rights and obligations. Legal children can inherit from their parents (and vice versa) under the law in the absence of an estate plan. Children may also be eligible for government and other benefits through their legal parents.

Being a legal parent means that you may have to pay child support for your child if you separate or divorce from the other parent. But significantly, legal parentage also gives you standing to seek custody. So what can, and should, you do to be recognized as a legal parent? You may have to either adopt your child or obtain an order of parentage if you are not either a biological parent or a parent recognized under existing law.

South Carolina law has recognized since the 1987 case In re Baby Doe that a man who consents to his wife becoming pregnant through insemination with donor sperm and shows clear evidence of his intent to hold the child out in the community as his own is presumed to be the father of that child. But what about the female spouse of a woman who has been impregnated with donor sperm? The Uniform Parentage Act of 2017 would treat the wife of a pregnant woman the same as it would treat her husband; a spouse of either gender would be presumed to be the child’s parent. But South Carolina has not yet adopted this most recent version of the Uniform Parentage Act, so a pregnant woman’s wife should legally adopt the child in order to be considered a parent.

Intended parents working with a surrogate should obtain a pre-birth order that establishes them as the legal parents of the child to be born through surrogacy. A pre-birth order is important because it gives the intended parents the right to take custody of the child immediately after birth, and to make any necessary medical decisions for the child. Without such an order, the law presumes the surrogate who gave birth to be the mother of the child. Following the child’s birth, a post-birth order is necessary to have the intended parents listed as the child’s parents on the birth certificates.

It takes a village to raise a child—and sometimes, to bring one into the world. As families and the ways they are created evolve, it is increasingly important to make sure that you are a parent not just in the eyes of your child, but in the eyes of the law. If you have questions about confirming your status as a legal parent, we invite you to contact Brinkley Law Firm to schedule a consultation.