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Two Moms, One Baby: Colorado Sheds New Light on King Solomon’s Dilemma

In the Interest of S.N.V., a Child,
And Concerning C.A.T.C., Petitioner-Appellee
And N.M.V., Respondent-Appellee,
And B.V., Intervenor-Appellant


Petitioner-Appellee (“birth mother”) and Respondent-Appellee (“husband”) are parents to minor child, who was born in 2007. Petitioner brings this case, seeking an allocation of parental responsibilities. The Intervenor-Appellant (“wife”) seeks to establish her rights as the minor child’s legal mother. It is clear to the Court that the minor child was conceived through sexual intercourse between husband and birth mother.

What remains in dispute are the circumstances surrounding the minor child’s conception. Husband and wife asserted that there was a non-verbal agreement that birth mother was to act as a surrogate. As part of this agreement, they attended all of birth mother’s medical appointments and paid for all her expenses relating to the pregnancy and birth. Husband and wife claim that they have been the minor child’s sole caregivers since his birth.

Birth mother claims that the minor child’s conception came from an intimate relationship between her and husband. She states she was involved in the care of the minor child for the first two years of his life, but that husband severed her contact with the child.

The crux of this case is that two women are claiming to be the minor child’s mother. In a 2000 Colorado Supreme Court case, N.A.H. v. S.L.S., two men claimed to be a child’s father, one biologically, and the other because he was married to the mother and received the child into his home, and held it out as if it were his own. In N.A.H., the Colorado Supreme Court held that “neither the presumption of legitimacy nor the presumption based on biology is conclusive,” meaning that both men had a claim to paternity of the child. One claim was based on statutory presumptions, and the other was based on biology, or genetic testing. The Court held in N.A.H. that the competing claims must be decided in the best interests of the child.

The Colorado Appellate Court has held that this interpretation of the UPA should also apply to maternity actions. Under the UPA, giving birth, or biology is one way to determine a parent-child relationship, however, this relationship can be proven by any other proof that is specified in § 19-4-105. A woman’s proof of marriage to the child’s father, or her proof of receiving the child into her home, and holding the child out as her own may establish the mother-child relationship.

Having remanded the case back down to the trial court the Colorado Court of Appeals stated that it did not suggest that a court must treat biological relationships and relationships based upon statutory presumptions as being equal. It merely stated that “these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA.”

The trial court will now have the task of weighing the two women’s legal claims to the child, as well as what is in the child’s best interest in this matter, to determine which woman will have the legal mother-child relationship with the minor child.