Law360 (April 28, 2026, 10:37 PM EDT) -- The Ohio Supreme Court held Tuesday that a state law establishing parental rights for the spouse of a woman who conceives a child through artificial insemination doesn't retroactively apply to same-sex couples when a child was born before gay marriage was legalized by the U.S. Supreme Court in 2015.

The majority opinion dealt a blow to the former partner of a woman who had three children via IVF and sued in an effort to establish parental rights, with the high court reversing an appellate decision which found the trial court should determine if the couple would have gotten married prior to the Supreme Court's 2015 decision in Obergefell v. Hodges if same-sex marriages were legal in Ohio then. 

"The question before this court is whether the [First District Court of Appeals] erred in empowering the trial court to retroactively create a marriage under this 'would have been married' standard," the majority said in an opinion authored by Justice Pat DeWine. "We hold that it did."

"By its plain terms, the non-spousal artificial insemination statute does not apply to an unmarried couple," the opinion continued. "And nothing in United States Supreme Court precedent provided a basis for the First District to disregard the plain terms of the Ohio statute."

Justice Jennifer Brunner concurred with the judgment but wrote that the First District and the high court were considering issues the appellant had not preserved at the trial court level. 

According to the opinion, the case involves a dispute about parenting rights between litigants identified as P.S. and C.E., who are two women whose relationship ended not long before the Obergefell decision in 2015 legalized same-sex unions nationwide. At the time of the Obergefell decision, Ohio did not allow same-sex marriages. 

During the women's relationship, P.S. gave birth to three children through artificial insemination. After the relationship ended, C.E., sought to be legally recognized as the children's parent, with the case eventually coming before the First District, according to the opinion. 

The First District remanded the case to the trial court to determine if the couple "would have been married" if same-sex marriage had been legal in Ohio at the time of their relationship, relying on the states' non-spousal artificial insemination statute allowing the consenting spouse of a woman who conceives through artificial insemination to be recognized as the natural parent of the child.

The statute does not apply to couples who are unmarried, but the First District held the statute should apply retroactively to an unmarried same-sex partner if the couple would have been married but for Ohio's ban on same-sex marriage prior to the Obergefell opinion.

The majority opinion issued Tuesday held the First District did not address P.S.'s contention that C.E. did not preserve the argument about the artificial insemination statute at the lower court and should not be permitted to make it on appeal. 

The high court's majority rejected the First District's opinion, writing, "Neither the state nor federal Constitution empower a state court to ignore state statutes barring common-law marriage, manufacture an unlicensed marriage into existence, and hinder a parent's fundamental rights based on that manufactured unlicensed marriage."

The majority also said trial courts in Ohio are "ill-suited to perform" the "would have been married" test the First District called for.

"How is a court to determine what parties would have done had same-sex marriage been legal in Ohio?" the majority said. "Some couples may have chosen to remain unmarried for financial or personal reasons. Or, as sometimes happens, the relationship could have ended when the topic of marriage arose."

"Even if a couple took 'steps' toward marriage, like moving in together or getting engaged, there's no guarantee they would have gotten married," the majority continued. "After all, brides and grooms sometimes get cold feet. But the First District's mandate would put trial courts in the position of trying to guess what the parties would have done had same-sex marriage been legal."

The majority also said the instant case presents a challenge in performing the test. 

"C.E. claims that she proposed to P.S., that they had a civil commitment ceremony, and that they traveled to Boston to get married, only to abandon their plans when they learned that Ohio would not recognize the out-of-state marriage," the majority said. "But P.S. denies that any civil commitment ceremony happened and says she never intended to marry C.E."

"Even if the trial court were to accept C.E.'s version of events, it's still not certain that the parties would have actually gotten married had the option been available to them in Ohio," the majority continued. 

Counsel for the parties did not immediately respond to requests for comment. 

The appellant is represented by Paul R. Kerridge and Alexander J. Durst of Durst Kerridge LLC and by Diana M. Link of Link Nestheide Family Law.

The appellee is represented by Johnathan L. Hilton, Geoffrey C. Parker and Eliza Bauler O'Grady of Hilton Parker LLC and by Danielle L. Levy of The Family Law and Fertility Group.

The case is In re L.E.S., E.S. and N.S, case number 2026-1449, in the Supreme Court of Ohio. 

--Editing by Leah Bennett.

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