Lesbian divorce case could redefine parenthood

Suzan McLaughlin didn’t give birth to the boy she considers her son. Does that mean she should have no right to see him after a divorce? That’s the thorny question now before the Arizona Supreme Court — and it could have wide-ranging implications for how parental rights play out in this state.

Suzan and her wife, Kimberly, decided to have a child via an anonymous sperm donor at a sperm bank, according to court documents. Though Kimberly is biologically the boy’s mother, they agreed to be co-parents and share custody should the marriage dissolve before Suzan was able to legally adopt him.

Suzan stayed home to care for the boy after he was born while Kimberly worked. But the couple’s relationship deteriorated, and in 2013 Kimberly filed for divorce and cut off contact between Suzan and their son, who at the time was nearly 2.

Kimberly argued that Suzan had no parental rights because she was not biologically the father. She cited an Arizona law written long before same-sex marriage was legalized that allows men to establish parental rights as a result of marriage.

Suzan countered that Obergefell vs. Hodges, the 2015 U.S. Supreme Court ruling that legalized same-sex marriage, also requires the state to interpret its paternity law as gender neutral. The Arizona Court of Appeals sided with Suzan and Kimberly appealed to the Arizona Supreme Court, which is expected to hear arguments today.

If the state’s high court sides with Suzan, the non-biological parent in a samesex marriage would no longer be forced to adopt her child to establish parental rights, according to Kaiponanea Matsumura, an associate professor at ASU’s Sandra Day O’Connor College of Law who is following this issue.

Those rights are crucial in a divorce, Matsumura noted, because once they are established, family courts can then take the non-biological spouse’s relationship with the child into consideration when determining who gets custody and visitation rights.

Seems fair, right? If a child has two loving parents who want to be involved in his life after a divorce — and they are the only two parents he’s ever known — does it really matter whether both of them contributed DNA to determine what’s in the child’s best interest?

Not according to a similar case the Arizona Court of Appeals decided late last week. A different set of judges held that Liza Oakley had no parental rights to the child her wife, Heather Turner, had conceived via a sperm donor, even though Oakley was named on the birth certificate and heavily involved in the child’s life.

The judges in this case interpreted the Arizona paternity law literally and rejected arguments that Obergefell required Arizona’s law be applied to both men and women. While they sympathized with Oakley, they said the ultimate solution rested with the Legislature, not the courts.

But Arizona’s law — and the Turner ruling — are outliers nationally, according to Cathy Sakimura, family law director for the National Center for Lesbian Rights. Far more states and courts have sided with non-biological parents in similar cases than those that have not.

The U.S. Supreme Court also made the rare move Monday of reversing an Arkansas decision that allowed the state not to issue birth certificates listing two married women as a child’s parents. The court ruled without hearing arguments in the case, saying Obergefell extended that right as part of marriage.

If Arizona’s Supreme Court leans that way, foes of same-sex marriage could pressure the Legislature to step in, as lawmakers did in Tennessee in hopes of thwarting a similar lesbian divorce case earlier this year.

Let’s hope that doesn’t happen in Arizona, because it would be a nasty fight. And probably a useless one, given how quickly public opinion is changing on this issue.

Same-sex marriage is legal, as it is legal for lesbian couples to conceive children. The law should reflect this reality — so kids aren’t hurt any more than they already will be in a painful divorce.

Joanna Allhands is The Republic’s digital opinions editor. Reach her at joanna .allhands@arizonarepublic.com.