Saying it’s only fair, an attorney for a gay woman who is getting divorced told the Arizona Supreme Court Tuesday that his client is entitled to the same rights of parenthood of a child born during the marriage as if she were a man.
Shannon Minter acknowledged that current state law reads that the husband of any woman who gives birth within 10 months of a marriage is presumed to be the parent, even if the child is the product of artificial insemination. And that presumption also means that in cases of divorce, the father is entitled to claim rights of custody and visitation despite the lack of a biological link to the child.
Minter told the justices that there is no reason that Suzan McLaughlin should not have the same rights for the child that was born in 2010 to Kimberly McLaughlin.
And Minter said two U.S. Supreme Court decisions, including one issued just Monday, spell out that same-sex couples are entitled to the same legal rights related to marriage as heterosexual couples.
But Keith Berkshire, who represents Kimberly, said there’s a flaw in that argument.
He said some states have laws that automatically declare the husband to be a parent in cases of artificial insemination. Arizona does not.
And he said that presumption of parenthood is legally rebuttable in Arizona if a court finds that the father is not biologically related to the child.
Minter, legal director for the National Center for Lesbian Rights, conceded the point. But he told the justices the right of the biological mother to deny parental rights to her spouse is limited.
“She could only rely on the absence of a biological connection if she is identifying another alleged biological father,” he said, requiring her essentially to admit she had an affair.
Minter said, though, that with the child the product of artificial insemination, Kimberly cannot specify someone else as the biological father. He said that puts her in the same position as a woman in an opposite-sex marriage who gives birth to a child through artificial insemination: legally unable to challenge the paternity rights of the man to whom she was married at the time.
“I can’t stress enough that we are asking for exactly the same substantive legal treatment as would apply to an opposite-sex married couple using artificial insemination to have a child,” he told the court.
The seven justices did not indicate what they will decide.
But during nearly an hour of arguments and questions, several appeared to believe they are legally obligated, as Minter suggested, to follow U.S. Supreme Court precedent, which holds that gays are entitled to the same protections as opposite-sex couples in all matters related to marriage, giving Suzan the legal benefits of parenthood.
The only question that seemed to bother some of the justices is whether they can effectively rewrite the law.
On paper, the statute is specific. It says “a man is presumed to be the father of the child if he and the mother were married at any time in the 10 month preceding the birth or the child is born within 10 months after the marriage is terminated.”
Minter told the court the solution is simple: Require judges in divorce cases to read the law in a non gender-specific way.
That option, however, appeared to bother Justice Clint Bolick. He said if the paternity law is unconstitutional, the only legal remedy for the court might be to void it entirely.
That, however, would leave Arizona with no laws on presumed paternity for anyone, gay or straight, unless and until the legislature agreed to rewrite it in a non sex-specific fashion.
After the hearing, Minter said it is crucial for the justices to resolve issues of parental rights in cases of artificial insemination, both for gay and straight married couples.
“This potentially affects tens of thousands of families,” he said, “The court obviously is taking it very seriously.”
And Minter said the Arizona justices really have no choice in how they will rule.
“The United States Supreme Court has said twice now … that whatever the rules are about how to determine the legal parentage of children born to married couples, those have to be applied equally to all married couples regardless of the gender of the spouses,” he said.
The first was in 2015 when the high court said that people cannot be denied the benefits and privileges of marriage solely because they are of the same gender. That, the Supreme Court said, includes “the constellation of benefits that the states have linked to marriage.”
And on Monday the court voided Arkansas laws that said only a man can be listed as the father on a birth certificate, even in cases of artificial insemination. The justices said there is no legal reason to preclude that same right for the same-sex partner of a woman who gives birth.
Kimberly and Suzan were legally married in 2008 in California.
Court records show the couple agreed to have a child through artificial insemination using an anonymous sperm donor. Kimberly became pregnant in 2010.
Before the baby was born, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Suzan stayed home and cared for the boy while Kimberly worked as a physician.
When the boy was nearly two, Kimberly moved out, taking the boy with her and cutting off his contact with Suzan.
Suzan filed for divorce in 2013 as well as legal papers for parenting time. When a trial judge agreed to have the case proceed, Kimberly appealed.
Berkshire argued to the Arizona court that the Monday U.S. Supreme Court ruling actually supports his argument.
He said Arkansas had a law saying that a man is automatically the father in cases of artificial insemination of his wife but denied that same treatment to a woman, a distinction that is clearly impermissible. But Berkshire said Arizona has no such law and the courts here should not create one from scratch.