Three years after marriage equality in Arizona, state laws regarding parenthood remain written in gender-specific terms that can deny same-sex couples legal parentage.

Family Law, LGBT Style

Written by Jimmy Magahern Category: Valley News Issue: October 2017
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Three years after marriage equality in Arizona, state laws regarding parenthood remain written in gender-specific terms that can deny same-sex couples legal parentage.

Same-sex marriage has been legal in Arizona since October 2014, when a federal judge ruled that the amendment to the state’s constitution defining marriage as a union between a man and a woman was unconstitutional.

But gay divorce in Arizona is still murky when children are involved. Laws about parenthood are written in gender-specific, “one man, one woman” language. A new ruling by the Arizona Supreme Court (under review at press time) may clear that up.

Arizona’s “marital presumption of paternity” statute (ARS 25-814) relies on the birds-and-bees possibilities of what can happen when a man and woman live together: “A man is presumed to be the father of the child if he and the mother of the child were married” within 10 months of the child’s birth. This applies if the child is the product of artificial insemination via a sperm donor.

The landmark 2015 U.S. Supreme Court ruling in Obergefell v. Hodges that nationally legalized same-sex marriage should have prompted states to rewrite laws relating to marriage, including parenthood, in gender-neutral terms. But that hasn’t happened – and in a Republican-controlled state legislature like Arizona’s, some LGBT lawyers say that may be intentional. Maricopa County Attorney Bill Montgomery has denied free adoption services for same-sex stepparents based on the same lack of clarity, stating Arizona’s adoption statutes “are distinct from cases arguing a right to marry and recognition of marriages by same-sex couples.”

As a result, when two women divorce after one of them gives birth, it’s up to state courts to answer the now nonsensical question, “Who’s the daddy?”

Recently, Arizona’s two courts of appeal issued two opposing rulings in such cases. In one, the Arizona Court of Appeals in Tucson granted Suzan McLaughlin, the ex-wife of a woman, Kimberly McLaughlin, who gave birth via artificial insemination, parental rights based on the Obergefell ruling, which maintains that same-sex couples must be granted the same “constellation of benefits that the states have linked to marriage” for opposite-sex couples – including the legal parentage of children born to those couples.

In the other case, the Court of Appeals in Phoenix hewed to the precise wording of ARS 25-814, insisting that Liza Oakley, although legally married to Heather Turner at the time Turner gave birth to a child through artificial insemination, was not entitled to the presumption of parenthood under the statute, which Judge Randall Howe wrote “clearly and unambiguously provides that it applies solely to men.”

The McLaughlin case is now being appealed to the Arizona Supreme Court, whose decision will likely determine how parental rights are extended to same-sex couples. Claudia Work, the Phoenix attorney who represented the non-birth-giving women in both cases, says that the decision could impact the fate of all Arizona children born through artificial insemination – including those born to opposite-sex parents.

“In Arizona, if a spouse is not automatically deemed to be the presumed legal parent of a child born through artificial insemination by virtue of the marriage, then these men and women, husbands and wives, who have been raising children for years, would have virtually no rights if the biological father came forward,” Work says. “Known sperm donors in Arizona have potential parental rights and support obligations until terminated by a court. There is no authority in Arizona for allowing a known person to contractually release rights as a ‘donor.’”

Basing parenthood purely on biology could also create situations where claims of infidelity could negate parental responsibility. During the brief marriage of WNBA stars Brittney Griner and Glory Johnson, Johnson was pregnant with twins via in vitro fertilization, a process Griner had consented to. During the battle over child support, however, Griner ordered DNA tests, alleging in court documents that Johnson’s ex-boyfriend, rather than an anonymous donor, may have fathered the babies. In that case, although Griner’s parenthood could be disputed, her responsibility to pay child support was upheld – principally because the Arizona statute covering support is one of the few that does employ gender-neutral language. “You can’t force a parent to see their child,” Work says, “but you can certainly force them to financially support a child that they had some physical or legal hand in creating.”

Ultimately, says Work, who specializes in family law cases involving same-sex couples, it’s about protecting the children in such relationships by preserving family ties.

“When it comes down to it, even people who have theoretical issues with the LGBT community recognize that it’s in the best interest of the child that they should have the support of two parents if there are two parents available to them,” she says. “That’s one thing almost everybody can agree on.”