The Supreme Court Could Be Ruling On A Lesbian Custody Battle

“When a woman is married to another woman, it is impossible for both... to be biologically related to the child.”

The U.S. Supreme Court may soon be hearing arguments in a custody case with broad implications for the LGBT community.

An Arizona woman is asking for full custody of her son, arguing that her ex-wife has no parental rights because she’s not biologically relationship to the child.

Last year, the Arizona Supreme Court ruled that Suzan McLaughlin had the same right to custody as if she has been the husband of her ex, Kimberly McLaughlin, instead of her wife. Kimberly’s attorneys appealed and have now petition to have the country’s highest court rule on the case.

The McLaughlins got married in California in 2008 and, two years later, Kimberly was artificially inseminated via an anonymous sperm donor. Following the birth of their child, the family moved to Tucson, where Suzan stayed at home with their son and Kimberly worked full-time as a physician.

When the child was nearly 2, though, Kimberly moved out, taking the boy with her and cutting off contact.

When filing for divorce, Suzan fought for full custody, citing an Arizona law claiming that a husband is the presumed parent of a child born within 10 months of a marriage, whether proven to be the biological parent or not. “When a woman is married to another woman, it is impossible for both women to be biologically related to the child,” Kimberly’s lawyer, Keith Berkshire, told the court. “A statute that acknowledges this biological fact does not violate the Fourteenth Amendment,” guaranteeing equal protection under the law.

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“When a woman is married to a man and becomes pregnant, it is not only possible but also likely that her husband is the biological father of her child,” Berkshire wrote in the petition to the Supreme Court. Such a presumption, he argued, can’t be made with a same-sex couple.

Currently, only Oregon, New Jersey, and New York law state that if a child is born of artificial insemination, the husband is treated automatically as the biological parent. If the Supreme Court grants partial custody to Suzan, it would supersede Arizona law and any other state statues.

The court is readying a ruling on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that pits the religious freedom of a Christian baker against the rights of a gay couple he refused to sell a wedding cake to.

Zachary Zane is a writer and activist whose work focuses on sexuality, culture, and academic research. He has contributed to The Washington Post, Rolling Stone, and The Advocate.
@ZacharyZane