A Former Partner Granted Maternity

Indiana appeals court issues landmark gay family ruling

The Court of Appeals of Indiana ruled on November 24 that the lesbian mother of a child conceived through donor insemination of her former female partner is a legal parent of the child and entitled to seek custody and visitation.

Reversing a decision by a lower district court to dismiss the case, the appellate court found that the common law of Indiana should evolve to encompass the realities of lesbian and gay families. Writing for the court, Judge Ezra H. Friedlander penned an unusually empathetic and pragmatic decision.

According to the complaint filed by Dawn King, she and her partner, Stephanie Benham, lived together as a couple for several years and participated in a commitment ceremony before they decided to have a child together. According to King, they mutually decided that Benham would become pregnant with sperm donated by King’s brother so that both women would be biologically related to the child. Friedlander noted this fact, but did not rely on King’s biological relationship to the child in reaching his decision.

King assumed an equal parenting role after the child was born, bonding with the child as a mother, and expenses for the child were paid out of the women’s joint bank account.

After the child was born, King filed an adoption petition with Benham’s consent, but while the petition was pending the two women separated, Benham withdrew her consent, and the petition was withdrawn. King continued to pay child support and enjoyed visitation until July 2003, when Benham stopped accepting her checks and began preventing visitation. In October 2003, King filed her lawsuit, seeking recognition as the child’s second legal parent or, in the alternative, seeking at least equitable visitation rights.

The trial judge granted Benham’s motion to dismiss the case, finding that there was no precedent under Indiana law to grant King’s request.

Friedlander agreed with King’s argument that the trial judge had too narrowly construed an important 1994 decision by the Indiana Supreme Court, in which that court held that the father who had a child through donor insemination was the legal father of the child.

“We agree with Dawn that ‘no legitimate reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination,’” he wrote. “As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.”

The court noted the failure of the Indiana Legislature to address new developments in family law, echoing a similar criticism voice in the 1994 decision.

“We encourage the Indiana Legislature to help us address this current social reality by enacting laws to protect children who, through no choice of their own, find themselves born into unconventional familial settings,” Friedlander wrote. “Until the Legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. We, therefore, hold that when two women involved in a domestic relationship agree to bear and raise a child together by artificial insemination of one of the partners with donor semen, both women are the legal parents of the resulting child.”

The court rejected Benham’s argument that recognizing King as a legal parent would violate her constitutional rights.

Although the U.S. Supreme Court has ruled that biological parents have constitutional rights superior to unrelated third parties, Friedlander contended that these precedents were inapplicable because “we have determined that Stephanie and Dawn are the legal parents of [the child] and stand on equal footing with respect to the child.”

The case will now return to the Monroe County Circuit Court. If Benham decides not to contest any of King’s factual allegations, then King will be entitled to a judicial declaration of her parental status. If Benham disputes King’s allegations, there will have to be a trial.

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