A nonbiological mother is a legal parent to the child she and her same-sex spouse conceived through assisted reproduction, the Arizona Supreme Court ruled yesterday, in a ruling that emphasized the benefits such recognition has for children. The ruling could also have an impact on at least one more pending case.
In McLaughlin v. Jones (McLaughlin), an Arizona family court had ruled last October that Suzan McLaughlin, the nonbiological mother, was a parent and had the right to seek custody and visitation of her child after separation from the child’s biological mother, Kimberly McLaughlin. Kimberly appealed to the state Supreme Court, claiming Suzan had no right to their child—but yesterday’s ruling found in favor of Suzan.
This is especially gratifying because the outcome had been thrown into question last June when the Arizona Court of Appeals ruled in another case, Turner v. Steiner, that a nonbiological mother was not entitled to be seen as a parent, even though she was married to the biological mother, they planned the child together, and both of their names were on the child’s birth certificate. It also said that the U.S. Supreme Court’s marriage equality ruling in Obergefell, which gave same-sex couples full marriage equality throughout the country, had nothing to do with parenting statutes and was irrelevant in this case.
Luckily, just days after that awful ruling, the U.S. Supreme Court overturned the Arkansas Supreme Court in Pavan v. Smith, a case involving two married, two-mom couples who had children with the help of anonymous sperm donors. The Arkansas court had argued that the purpose of birth certificates “is to truthfully record the nexus of the biological mother and the biological father to the child” and thus nonbiological mothers have no right to be on them. The U.S. Supreme Court disagreed, noting that Arkansas law itself requires that when a different-sex couple uses sperm donation, the husband’s name, not the sperm donor’s, goes on the birth certificate. “The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents,” they wrote. Because of that, and consistent with Obergefell, which says states must offer all married couples the same “rights, benefits, and responsibilities,” Arkansas may not prevent married same-sex couples from having both of their names on their children’s birth certificates.
As I reported earlier, Cathy Sakimura, family law director of the National Center for Lesbian Rights (NCLR), which is counsel in the two Arizona cases, said that Pavan “has a huge impact on these pending cases.” Yesterday’s ruling proved her right.
Writing for the majority, Arizona Chief Justice Scott Bales noted that the lower court’s reading “is precluded by Obergefell itself and the Supreme Court’s recent decision in Pavan v. Smith.”
“Legal parent status is, undoubtedly, a benefit of marriage,” he said. The lower court’s ruling was wrong, and “the marital paternity presumption encompasses more than just rights and responsibilities attendant to biologically related fathers. When the wife in an opposite-sex couple conceives a child, her husband is
presumed to be the father even when he is not biologically related to the child…. Because the marital paternity presumption does more than just identify biological fathers, Arizona cannot deny same-sex spouses the benefit the presumption affords.”
In fact, Bales concludes, it violates the federal Constitution—specifically, the 14th Amendment’s Equal Protection and Due Process Clauses—to limit the state’s presumption of paternity only to opposite-sex couples. “The marital paternity presumption is a benefit of marriage,” he explains, “and following Pavan
and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.”
He then outlines the specific harms that doing otherwise would cause children—first, economically (my emphasis):
Because men in opposite-sex marriages are presumed to be legal parents through the marital paternity presumption, eliminating this presumption would increase the likelihood that children born to opposite-sex parents lack financial support from two parents. Extending the presumption, on the other hand, would better ensure that all children—whether born to same-sex or opposite-sex spouses—are not impoverished.
Then in terms of parental participation and the building of strong families:
When a man is presumed to be the father of a child born during the marriage, and that presumption is not rebutted, he is entitled to legal decision-making and parenting time with the child…. Thus, the marital paternity presumption seeks to ensure a child has meaningful parenting time and participation from both parents.
Extending the marital paternity presumption to same-sex spouses also better promotes strong family units. In Obergefell, the Supreme Court concluded that the right to marry is fundamental in part because “it safeguards children and families.” By denying same-sex couples “the recognition, stability, and predictability marriage offers,” the Court found that children of same-sex couples “suffer the stigma of knowing their families are somehow lesser” and “suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.” Extending the marital paternity presumption mitigates these harms. Children born to same-sex spouses will know that they will have meaningful parenting time with both parents even in the event of a dissolution of marriage.
By extending [the paternity statutes] to same-sex spouses, we ensure all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.
Amen to that. Congratulations to Suzan and her child, who will be able to continue their relationship. While the second Arizona case, Turner v. Steiner, has yet to be decided, this ruling bodes well indeed.
