Originally Published: January 16, 2018 6:01 a.m.
PHOENIX — Saying biology matters, an Arizona woman is making a last-ditch effort to keep from being forced to share custody of her child with her former wife.
Keith Berkshire, attorney for Kimberly McLaughlin, is asking the U.S. Supreme Court to overturn last year’s ruling by the state’s High Court which concluded that Suzan McLaughlin had the same right to claim parentage as if she had been Kimberly’s husband.
In legal pleadings, Berkshire acknowledged the historic 2015 U.S. Supreme Court ruling which concluded that states must extend the right to marry to same-sex couples. The justices expanded on that two years later, spelling out that same-sex couples must have access to the “constellation of benefits that the state has linked to marriage.”
But Berkshire contends nothing in either ruling requires states to ignore the biological fact that men and women are different — and that, by definition, two women cannot both be the biological parent of a child born to one of them. That, he said, undermines the decision of the Arizona Supreme Court to effectively rewrite a statute which says that only men are entitled to the presumption of “paternity” of a child born during a marriage.
In the legal filings, the attorney also takes a slap of sorts at the Arizona Supreme Court, saying the justices effectively adopted a statute dealing with how paternity cases are handled in cases of artificial insemination, a statute that, while approved in other states had never been enacted by lawmakers in Arizona.
What the U.S. Supreme Court decides could have implications not only beyond this case and beyond other situations involving child custody and support: A ruling against Berkshire would undermine arguments by Maricopa County Attorney Bill Montgomery and the Center for Arizona Policy that just because same-sex marriages are legal does not void all state laws that differentiate between same-sex couples and heterosexual couples.
That’s not just an academic argument.
In writing last year’s ruling, Arizona Supreme Court Chief Justice Scott Bales said he reads the U.S. Supreme Court ruling on gay marriage to “require a reassessment of various state statutes, rules, and regulations to the extent they deny same-sex spouses all of the benefits afforded opposite-sex spouses.’ “That includes taxation, property rights, hospital access, adoption rights and more.
Court records show Kimberly and Suzan, legally married in California in 2008, agreed to have a child through artificial insemination using an anonymous sperm donor.
Kimberly became pregnant in 2010. The couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were equal parents to the child.
After the boy’s 2011 birth, Suzan stayed home and cared for him while Kimberly worked as a physician.
When he was nearly 2, Kimberly moved out, taking the boy with her and cutting off his contact with Suzan.
In filing for divorce, Suzan sought parenting time, citing an Arizona law which says that the husband is the presumed parent of a child born within 10 months of a marriage. When a trial judge agreed to let the case proceed, Kimberly appealed, saying the paternity presumption law, by its plain wording, applies only when the other spouse is a man.
Berkshire said the Arizona Supreme Court, in agreeing Suzan could use the paternity statutes to be declared one of the boy’s parents, ignored both the reason legislators wrote the law the way they did as well as basic biology.
“Specifically, 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,” he wrote in his petition to the U.S. Supreme Court.
“When a woman is married to another woman, it is impossible for both women to be biologically related to the child,” he said. “A statute that acknowledges this biological fact does not violate the Fourteenth Amendment” which guarantees equal protection under the law.
Berkshire said Suzan might have a claim if she and Kimberly lived in Oregon, New Jersey or New York. Lawmakers in each of those states have adopted measures, based on a model statute, which spell out that if a child is born to a woman through artificial insemination, her husband is automatically treated as if he were the child’s biological parent.
“Arizona does not have an artificial insemination statute, and Arizona is not required to enact one,” the attorney told the justices. But he said the ruling written by Bales effectively “circumvented the legislature” and enacted the model law.
“But this is not the court’s role,” Berkshire said. “If this court or constituents are dissatisfied with the state of our current laws, the proper forum to advocate for change is in the legislature, not the courtroom.”
The attorney said the Arizona Supreme Court intruded into the realm of state lawmakers by concluding the paternity statutes had to be read and enforced in a gender-neutral fashion. He said it was “beyond the Arizona Supreme Court’s domain to rewrite the statute in order to conform with any perceived public policy.”