Same-sex Couples, Surrogacy, and Custody

Child custody is often a complex and contested issue in the contexts of divorce and legal separation.  Parties may dispute the child’s best interests, including how much time the child should spend with each parent, where the child should live and attend school, whether grandparents should be entitled to a minimum amount of time with a child, and myriad other issues.

At times, parties may also dispute the child’s biological parentage, which can usually be resolved with a DNA test.  Consider the following scenario, however, with which Arizona courts have struggled:

A same-sex couple conceived a child using an anonymous sperm donor.  Fertility specialists fertilized one partner’s egg and implanted it in the other partner’s uterus, who carried and bore the child.  Eventually, the parties decided to separate, and they turned to the courts to resolve both the child’s biological parentage and the appropriate parenting time to which each partner should be entitled.

In this example, the parties had no surrogacy contract and Arizona law is arguably unclear about legal parent status in this context, so the court temporarily assigned week-on/week-off parenting time to each partner so that the child would be comfortable with both potential parents.

The court moved on to the issue of legal parenthood, citing both Arizona cases and cases from other states in its holding that the legal parent of the child is the partner who provided the egg – the only partner with a direct genetic link to the child.  The court noted that prior rulings which held that surrogate mothers were the legal parents of children they had carried were held unconstitutional because they provided no opportunity for the genetic mother to stake her claim for legal parental status.

The court also held, however, that the surrogate partner may be considered in loco parentis to the child – and could still seek a ruling entitling her to visitation with the child.

Because this case was one of first impression in Arizona, a prolonged process of appeals is likely to follow.  Because of the diversity of holdings on similar issues in other states, it is nearly impossible to predict how the case will finally be resolved.

Complex determinations can take a long time to resolve, especially if the court’s ruling is appealed.  Arizona case law states that the legal parent, defined as the biological or adoptive parent, is entitled to priority over the non-legal parent unless it is not in the child’s best interest.