State Court Rulings Show Divergent Definitions of Parenthood for Same-Sex Couples

Two recent state supreme court rulings, in Alaska and Idaho, underline the wildly different requirements same-sex parents may face to prove their parenthood.

Alaska

The Alaska Supreme Court this month granted shared custody of their children to two Alaska women, although the biological mother had sought sole custody. KTOO reports that “The decision is the first of its kind in Alaska involving a same-sex couple. It relies on legal precedent from similar child custody battles between men and women where the non-biological parent is deemed a ‘psychological parent’ and retains custody.” The women had never married and the nonbiological mother had not done a confirmatory (second-parent) adoption, but they created the child together through assisted reproduction, raised him together, and told him he had two mothers. The court recognized that, in a terrific decision that acknowledges the reality of many same-sex parents’ lives. While confirmatory adoptions or court orders of parentage are still recommended, even for married same-sex couples, particularly for those traveling to other states or countries, they shouldn’t have to be.

Idaho – Decision

In stark contrast, the Idaho Supreme Court ruled in September that that Linsay, a nonbiological mother, was not a legal parent of the child she and her ex-spouse Kylee (to whom she was legally married) had planned for and were raising together. The couple had both signed an assisted insemination agreement, which they found online, with the sperm donor. Both women were present at the child’s birth, and the birth certificate lists both their names (with “father” crossed out and “mother” written in at the spot Linsay signed). Both shared in the child’s caregiving.

The next summer, however, the women had a fight, which became physical. Kylee, who had also committed an act of domestic violence years earlier, according to the ruling, was arrested and subsequently pleaded guilty to domestic battery, a misdemeanor. A No Contact Order was issued that prohibited Kylee from seeing the child except at daycare. Linsay filed for divorce; Kylee filed for sole custody and visitation, claiming Linsay had no legal standing as a parent.

The case worked its way through the courts. At the end of September, the state Supreme Court upheld a lower court ruling that found Linsay had not obtained parental rights under the state’s Artificial Insemination Act (AIA), nor filed a Voluntary Acknowledgment of Paternity (VAP), nor adopted the child. Let’s look at the AIA first. The AIA says that if the husband of a married woman consents to her artificial insemination, the husband has the same rights and obligations to the child as if the child was “naturally conceived.” The court says that this must be read in a gender-neutral manner, applying to same-sex couples as well. The problem, however, according to the ruling, is that the couple didn’t use and file the state’s approved form to prove Linsay’s consent, but rather signed an online form, which “does not contain any language indicating that Linsay, in her capacity as Kylee’s spouse, consented to Kylee being inseminated.” Additionally, the ruling said, the AIA required the insemination to be done by a licensed physician, but the couple had done a home insemination themselves.

What about VAPs? These are simple, voluntary, free forms that have traditionally been available to a woman who gave birth and a man to whom she is not married who attests to being the genetic parent of the child. Ten states now clearly allow them for parents of any gender. Idaho has not stated explicitly that parents of any gender may use them, however, and that’s what Linsay’s lawyers pointed out to the court: she didn’t file one because she didn’t think she could. The state Supreme Court refused to rule on that, though, claiming that the AIA was the controlling statute in any case. It said, “It was immaterial whether Linsay could have filed a VAP because she clearly did not.” That’s a ridiculous argument, since if she couldn’t have done so, that explains why she didn’t.

The Supreme Court also noted that Linsay could have adopted the child, but didn’t. True, but this goes back to the fundamental problem of why nonbiological parents (or genetic, nongestational parents like me) should be burdened with the delay, hassle, and expense of adopting their own children. There could have been any number of practical reasons (time, expense) that Linsay didn’t do this, unrelated to whether she and Kylee considered her a parent to their child. (See my note above on the ongoing need for confirmatory adoptions, though; they’re unfair but still recommended at this point in time.)

Idaho – Dissent

This is an awful decision for many reasons. Let’s let Associate Justice John Stegner, who issued a dissent in the case, explain. He writes that the AIA is intended to extend legal protections to children born by artificial insemination, not to jeopardize them, but “The majority’s requirement of strict compliance with every section of the AIA undermines this bedrock policy of Idaho’s support for the family.”

In fact, he notes, the state registrar of vital statistics testified before the legislature (unrelated to the case) in February 2021 that there has “never been such a filing [of a couple’s written consent to artificial insemination] with the Bureau of Vital Records (BVR) and no purpose exists for either the BVR or the DHW to receive the consent forms.”

If that is not indicative of consent, what else would be?

Additionally, Stegner argues that the online agreement the women signed “specifically acknowledges that Linsay and Kylee are both recipients of the donor’s semen,” that both women are listed as “mothers” on the child’s birth certificate, and that the ruling “fails to recognize that the artificial insemination of Kylee was facilitated by Linsay.” He asks, “If that is not indicative of consent, what else would be?”

Additionally, the AIA statutes were amended this year to omit the requirement that the consent form be filed by a physician with the state registrar and to do away with the requirement that the State Board of Health and Welfare create rules for record keeping regarding children created by assisted insemination. The majority opinion says there is no indication this amended statute is retroactive, however, and even if it is, the couple did not adhere to its other provisions. Stegner disagrees strongly, for legal reasons you can read in the ruling if you wish.

Bottom line, according to Stegner? The He writes that the ruling “effectively says that a parent who has consented to (and participated in) her spouse being artificially inseminated is not entitled to be a parent of the resulting offspring because neither she nor a physician filed a never-used and now-obsolete form with the State Registrar of Vital Statistics.”

Ugh. This isn’t just some rarified legal argument, either, but has real-world implications for a child who will now grow up not knowing one of the two parents who helped bring them into the world. The consequences could carry over for many other families as well. The Alaska and Idaho cases also underscore the wildly different ways in which states may assess whether someone in a same-sex couple is a parent. If you are starting or expanding your family, or if you or your children’s other parent(s) aren’t yet all legal parents, please consider speaking with a lawyer if you can.