In 2015, the U.S. Supreme Court, in Obergefell v. Hodges, affirmed the right of same-sex couples to marry in every state. But what rights do parents have when only one parent is biologically related to the child? According to a report in Tuscson.com, the Arizona Supreme Court has held that the nonbiological same-sex spouse does have the right to make a parenting claim. The decision is being appealed to the U.S. Supreme Court.
The facts of the case
The biological spouse went through intrauterine insemination (also known as “artificial insemination”) with the sperm of anonymous sperm donor. Both spouses agreed to the intrauterine insemination process. The biological parent, Kimberly, gave birth to a boy in 2011. Both Kimberly and her spouse, Suzann, had agreed to a joint-parenting contract and signed wills stating that each spouse were equal parents of the boy. For two years, Suzann raised the boy while Kimberly worked as a doctor. After two years, Kimberly left, took the boy with her, and cut off Suzann from contact with the boy.
Suzann filed for divorce. She also sought parenting time based on an Arizona statute that holds that a husband is presumed to be a parent of any child born with 10 months of the marriage. The boy was born within that 10-month time frame.
The legal issues raised in the state court and on appeal to the U.S. Supreme Court
The Arizona Supreme Court ruled that the 10-month parenting statute applies to same-sex females just like it does to male husbands.
Kimberly, the biological spouse argues that:
Men and women are different. When a child is born to a mother, it is very likely that the male spouse is the biological father. It is not possible, in fact it is impossible, for a female spouse to be the biological father. For this reason, Kimberly argues, the statute does not violate the equal protection provisions of the federal Constitution.
The legislature and not the courts should decide this issue. Kimberly argues that Arizona has not sought to change or modify its parenting law to include a marriage between two female spouses – as other states have done. Oregon, New Jersey, and New York have enacted statutes that specifically include treating female spouses as parents in paternity cases when a child is born through intrauterine insemination. (The Maryland Court of Appeals has also recognized de facto parenting, though no legislation has been forthcoming, and the ruling can apply to all “non-traditional” families, not just same-sex couples.) Kimberly argues that the Supreme Court cannot usurp the authority of the legislature to state clearly the rights of same-sex parents when a child is born through this procedure.
It is not clear how any decision would affect the rights of same-sex male couples to claim parenthood when one spouse donates his sperm to a mother. After all, the case here was decided on very narrow terms based on a literal reading of the statute’s terms, so it is possible that this topic may not be fully resolved.