Idaho Supreme Court Ruling on Non-Biological Parents’ Rights for Same-Sex Couples

Same-sex pregnant couple holding up their ultrasound scan, parental rights concept

A recent Idaho Supreme Court ruling should serve as a cautionary to parents of children conceived through artificial insemination, and individuals hoping to become parents through this method.

Analysis of Gatsby v. Gatsby

In 2015, two women, Linsay and Kylee Gatsby, got married. Shortly thereafter, they decided to start a family together. They opted to pursue that goal by having Kylee artificially inseminated with sperm donated by a male friend.

The couple thought they were acting responsibly and protecting the legal rights of everyone involved. Linsay went online and downloaded a sperm donation agreement, which she, Kylee, and their sperm donor friend signed. The agreement specified that the friend would have no rights to, or responsibility for, any child who resulted from the sperm donation. Both Linsay and Kylee were listed on the agreement as “recipients.” The agreement stated that they intended to attempt to become pregnant with the donor’s sperm, and would have rights to any resulting child.

The couple received the sperm donation, and Linsay used it to inseminate Kylee at their home. Happily, a pregnancy resulted and Kylee gave birth to a child. Both women signed the birth certificate application at the hospital, and both were named as the baby’s mothers on the birth certificate. It certainly looked as if Linsay and Kylee had successfully created a family and protected everyone’s legal rights.

Pitfalls of an Online Sperm Donor Agreement for Same-Sex Couples

Unfortunately, once those rights were tested, they crumbled—at least with respect to Linsay. Several months after the baby’s birth, Linsey and Kylee got into a physical altercation after drinking; Kylee shoved Linsay off of a bed, after which Linsay struck Kylee, breaking her nose. Kylee was arrested, a No Contact Order (NCO) was put in place, and Kylee was only permitted to see her child at the baby’s daycare.

A little while later, Linsay filed for divorce. Kylee filed an Answer and Counterclaim arguing that Linsay had no legal claim or standing to any custody or visitation” with the minor child. The trial court agreed. In Idaho, as in many states, there is a legal presumption that a child born during a marriage is the child of the mother’s spouse. However, the Gatsby trial court found that that presumption was overcome by the clear and convincing evidence that Linsay was not the baby’s biological parent and she had not taken any steps to secure legal rights to the child either pre or post birth.

Failure to Establish Parentage

It was a fatal flaw in this case was that Linsay did not take other steps available to her to become the legal parent of Kylee’s child. The parties did not enter into a preconception agreement, nor sign or file a consent form under Idaho’s Artificial Insemination Act (AIA), nor did she adopt the child post birth.

The Outcome

Linsay appealed the trial court’s decision to the Idaho Supreme Court, which upheld it. The Supreme Court focused on Linsay’s failure to consent under the AIA, noting that the U.S. Supreme Court case of Obergefell v. Hodges meant that the law applied to same-sex spouses just as it did to opposite-sex spouses. Because Linsay did not register a written consent under the AIA, she could not benefit from the law.

To recap: Linsay found the sperm donor agreement. She was named on the agreement as a recipient. She inseminated Kylee, her legal wife. She signed the birth certificate application and was named as a mother on the birth certificate. Although Kylee was the baby’s primary caretaker, Linsay was actively involved in caring for the child. None of that was enough to confer parental rights under the law.

Lessons for Non-Biological Parents of Children Conceived by Artificial Insemination

The Gatsby court had harsh words regarding the online sperm donation agreement the couple used. The agreement did not address a non-biological parent’s consent to the biological parent’s insemination, nor did it attempt to confer any parental rights on the non-biological parent. In fact, one section of the agreement contains a relinquishment by all parties of the right to bring a suit to establish paternity.

The Idaho Supreme Court ruling stated that Linsay had failed to comply with the AIA by failing to complete and file a “Request and Consent for Artificial Insemination” form. However, the Idaho State Registrar of Vital Statistics said that there had never been such a document filed with their office, and that there had never been a purpose for one.

Under the Idaho Supreme Court’s ruling in the Gatsby case, every non-biological parent of a child conceived through artificial insemination from a sperm donor in Idaho to that point violated the AIA. As a result, each of those parents is at risk of not being recognized as their child’s legal parent.

The takeaway for hopeful parents is not to rely on online forms for something as important as protecting your legal rights as a parent. Especially when it comes to legal rights of same sex parents, the rights of non genetic parents is vulnerable to attack and you should consult an attorney in your state to determine the best way to affirm and protect your equal parental rights. By failing to consult an attorney who focuses on fertility law, you may save some money up front by not hiring an attorney. But you won’t know whether the rights you think you have will hold up in court until they are tested. By that time, it’s too late to protect them. And the money you saved on a lawyer initially (and more) will be consumed in litigation. It’s simply not worth it to take the chance.

Benefits of Hiring an Assisted Reproductive Technology Attorney

If you work with an experienced assisted reproductive technology attorney, you will not risk overlooking some rights even as you try to protect others. Your attorney will understand the law that applies to your situation and what you need to do to comply with it. Your attorney will also walk you through scenarios you might not have imagined, and work to protect you in the event some unforeseen contingency arises.

If you are considering artificial insemination or some other form of assisted reproductive technology as a path to parenthood, protect both your family and your rights. We invite you to contact Brinkley Law Firm LLC to schedule a consultation.