LRB-3505/1

TD/SW/ES/EW:cjs

2019 - 2020 LEGISLATURE

2019 Senate BILL 566

November 22, 2019 - Introduced by Senators Carpenter, Bewley, Erpenbach, Hansen, Johnson, Larson, Miller, Ringhand, Risser, Schachtner, Shilling, Smith, L. Taylor and Wirch, cosponsored by Representatives Spreitzer, Zamarripa, Novak, Cabrera, Anderson, Billings, Bowen, Brostoff, Considine, Crowley, Doyle, Emerson, Fields, Goyke, Gruszynski, Haywood, Hebl, Hesselbein, Hintz, Kitchens, Kolste, McGuire, B. Meyers, Milroy, L. Myers, Neubauer, Ohnstad, Pope, Riemer, Sargent, Shankland, Sinicki, Stubbs, Stuck, Subeck, C. Taylor, Vining and Vruwink. Referred to Committee on Public Benefits, Licensing and State-Federal Relations.

SB566,3,2 An Act to repeal 49.141 (1) (j) 2., 102.51 (1) (a) 2., 115.76 (12) (a) 2., 115.76 (12) (a) 3. and 769.401 (2) (g); to renumber and amend 891.40 (1) and 891.41 (1) (b); to amend 29.219 (4), 29.228 (5), 29.228 (6), 29.229 (2) (i), 29.2295 (2) (i), 29.563 (3) (a) 3., 29.607 (3), 45.01 (6) (c), 45.51 (3) (c) 2., 45.51 (5) (a) 1. b., 45.51 (5) (a) 1. c., 45.55, 46.10 (2), 48.02 (13), 48.025 (title), 48.025 (2) (b), 48.025 (3) (c), 48.27 (3) (b) 1. a., 48.27 (3) (b) 1. b., 48.27 (5), 48.299 (6) (intro.), 48.299 (6) (e) 1., 48.299 (6) (e) 2., 48.299 (6) (e) 3., 48.299 (6) (e) 4., 48.299 (7), 48.355 (4g) (a) 1., 48.396 (2) (dm), 48.42 (1g) (a) 4., 48.42 (1g) (b), 48.42 (1g) (c), 48.42 (2) (b) 1., 48.42 (2) (b) 2., 48.42 (2) (bm) 1., 48.422 (6) (a), 48.422 (7) (bm), 48.422 (7) (br), 48.423 (2) (d), 48.432 (1) (am) 2. b., 48.63 (3) (b) 4., 48.63 (3) (b) 5., 48.82 (1) (a), 48.837 (1r) (d), 48.837 (1r) (e), 48.837 (6) (b), 48.837 (6) (br), 48.913 (1) (a), 48.913 (1) (b), 48.913 (1) (h), 48.913 (2) (intro.), 48.913 (2) (b), 48.913 (2) (c) (intro.), 48.913 (3), 48.913 (4), 48.913 (7), 49.141 (1) (j) 1., 49.155 (1m) (c) 1g., 49.155 (1m) (c) 1h., 49.163 (2) (am) 2., 49.19 (1) (a) 2. a., 49.19 (4) (d) (intro.), 49.19 (4) (d) 1., 49.19 (4) (d) 2., 49.19 (4) (d) 3., 49.19 (4) (d) 4., 49.19 (4) (d) 5., 49.345 (2), 49.43 (12), 49.471 (1) (b) 2., 49.90 (4), 54.01 (36) (a), 54.960 (1), 69.03 (15), 69.11 (4) (b), 69.12 (5), 69.13 (2) (b) 4., 69.14 (1) (c) 4., 69.14 (1) (e) (title) and 1., 69.14 (1) (f) 1., 69.14 (1) (g), 69.14 (2) (b) 2. d., 69.15 (1), 69.15 (3) (title), (a) (intro.), 1., 2. and 3. and (b) 1., 2., 3. and 4. (intro), a. and b., 69.15 (3) (d), 69.15 (3m) (title), (a) (intro.) and 3. and (b), 71.03 (2) (d) (title), 71.03 (2) (d) 1., 71.03 (2) (d) 2., 71.03 (2) (d) 3., 71.03 (2) (g), 71.03 (2) (m) 2., 71.03 (4) (a), 71.05 (22) (a) (title), 71.07 (5m) (a) 3., 71.07 (9e) (b), 71.09 (13) (a) 2., 71.52 (4), 71.83 (1) (a) 8., 71.83 (1) (b) 5., 77.25 (8m), 77.54 (7) (b) 1., 101.91 (5m), 102.07 (5) (b), 102.07 (5) (c), 102.51 (1) (a) 1., 103.10 (1) (h), 103.165 (3) (a) 3., 111.32 (12), 115.76 (12) (a) 1., 115.76 (13), 146.34 (1) (f), 157.05, 182.004 (6), 250.04 (3) (a), 301.12 (2), 301.50 (1), 700.19 (2), 705.01 (4), 705.01 (4m), 706.09 (1) (e), 765.001 (2), 765.01, 765.03 (1), 765.16 (1m) (intro.), 765.16 (1m) (c), 765.23, 765.24, 765.30 (3) (a), 766.587 (7) (form) 9., 766.588 (9) (form) 13., 766.589 (10) (form) 14., 767.215 (2) (b), 767.215 (5) (a) 2., 767.323, 767.80 (1) (intro.), 767.80 (1) (c), 767.80 (2), 767.803, 767.805 (1), (1m), (2), (3) (title) and (a), (4) (intro.) and (d), (5) and (6) (a) (intro.), 767.855, 767.863 (1m), 767.87 (1m) (intro.), 767.87 (8), 767.87 (9), 767.883 (1), 769.316 (9), 769.401 (2) (a), 815.20 (1), 822.40 (4), 851.30 (2) (a), 852.01 (1) (f) 1., 852.01 (1) (f) 2., 852.01 (1) (f) 3., 854.03 (3), 891.39 (title), 891.39 (1) (a), 891.39 (1) (b), 891.39 (3), 891.40 (2), 891.405, 891.41 (title), 891.41 (1) (intro.), 891.41 (1) (a), 891.41 (2), 905.05 (title), 938.02 (13), 938.396 (2g) (g), 943.20 (2) (c), 943.201 (1) (b) 8. and 943.205 (2) (b); and to create 69.15 (3) (b) 3m., 765.02 (3), 891.40 (1) (b), 891.40 (3), 891.41 (3), 990.01 (22m), 990.01 (39) and 990.01 (40m) of the statutes; relating to: marriage between persons of the same sex and extending parentage rights to married couples of the same sex.

Analysis by the Legislative Reference Bureau

Summary

This bill recognizes same-sex marriage by making references in the statutes to spouses gender neutral, with the intent of harmonizing the Wisconsin statutes with the holding of the U.S. Supreme Court in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015), which recognizes that same-sex couples have a fundamental constitutional right to marriage. The bill also recognizes legal parentage for same-sex couples under certain circumstances and adopts gender neutral parentage terminology.

Same-sex marriage

This bill provides that marriage may be contracted between persons of the same sex and confers the same rights and responsibilities on married persons of the same sex that married persons of different sexes have under current law. The bill defines “spouse" as a person who is legally married to another person of the same sex or a different sex and replaces every reference to “husband" or “wife" in current law with “spouse." The bill makes applicable to married persons of the same sex all provisions under current law that apply to married persons of different sexes. These provisions relate to such diverse areas of the law as income tax, marital property, inheritance rights, divorce, child and spousal support, insurance coverage, family and spousal recreational licenses, consent to conduct an autopsy, domestic abuse, and eligibility for various types of benefits, such as retirement or death benefits and medical assistance.

Parentage

In addition to making statutory references to spouses gender neutral, the bill specifies ways in which married couples of the same sex may be the legal parents of a child and, with some exceptions, makes current references in the statutes to “mother" and “father," and related terms, gender neutral.

Under current law, all of the following may adopt a child: a husband and wife jointly, a husband or wife whose spouse is the parent of the child, and an unmarried adult. Because the bill makes references in the statutes to spouses gender neutral, same-sex spouses jointly may adopt a child and become the legal parents of the child, and a same-sex spouse of a person who is the parent of a minor child may adopt the child and become the legal parent of his or her spouse's child.

Under current law, if a woman is artificially inseminated under the supervision of a physician with semen donated by a man who is not her husband and the husband consents in writing to the artificial insemination of his wife, the husband is the natural father of any child conceived. Under this bill, one spouse may also consent to the artificial insemination of his or her spouse and is the natural parent of the child conceived. The artificial insemination is not required to take place under the supervision of a physician, but, if it does not, the semen used for the insemination must have been obtained from a sperm bank.

Under current law, there is a paternity presumption whereby a man is presumed to be the father of a child if he and the child's natural mother 1) were married to each other when the child was conceived or born or 2) married each other after the child was born but had a relationship with each other when the child was conceived and no other man has been adjudicated to be the father or is presumed to be the father because the man was married to the mother when the child was conceived or born. The paternity presumption may be rebutted in a legal action or proceeding by the results of a genetic test showing that the statistical probability of another man's parentage is 99.0 percent or higher. The bill expands this presumption into a parentage presumption, so that a person is presumed to be the natural parent of a child if he or she 1) was married to the child's established natural parent when the child was conceived or born or 2) married the child's established natural parent after the child was born but had a relationship with the established natural parent when the child was conceived and no person has been adjudicated to be the father and no other person is presumed to be the child's parent because he or she was married to the mother when the child was conceived or born. The parentage presumption may still be rebutted by the results of a genetic test showing that the statistical probability of another person's parentage is 99.0 percent or higher. Expanding on current law, the bill allows for a paternity action to be brought for the purpose of rebutting the parentage presumption, regardless of whether that presumption applies to a male or female spouse.

Under current law, a mother and a man may sign a statement acknowledging paternity and file it with the state registrar. If the state registrar has received such a statement, the man is presumed to be the father of the child. Under current law, either person who has signed a statement acknowledging paternity may rescind the statement before an order is filed in an action affecting the family concerning the child, or within 60 days after the statement is filed, whichever occurs first. Under current law, a man who has filed a statement acknowledging paternity that is not rescinded within the time period is conclusively determined to be the father of the child. This bill provides that two people may sign a statement acknowledging parentage and file it with the state registrar. If the state registrar has received such a statement, the people who have signed the statement are presumed to be the parents of the child. Under the bill, a statement acknowledging parentage that is not rescinded conclusively establishes parentage with regard to the person who did not give birth to the child and who signed the statement.

The bill defines “natural parent" as a parent of a child who is not an adoptive parent, whether the parent is biologically related to the child or not. Thus, a person who is a biological parent, a parent by consenting to the artificial insemination of his or her spouse, or a parent under the parentage presumption is a natural parent of a child. The definition applies throughout the statutes wherever the term “natural parent" is used. In addition, the bill expands some references in the statutes to “biological parent" by changing the reference to “natural parent."