ART: Law & Practice: How Declining or Accepting Clients May More Fairly Tip the Scales of Justice

In June 2015, Linsay and Kylee Gatsby married each other. Soon after, they decided to have a child together using a known sperm donor. The three printed a sperm donor agreement off the internet, listing the couple as the “recipient” and the friend as the “donor.” Linsay performed the insemination on Kylee, who became pregnant, and both were listed on the birth certificate as the child’s mothers. However, when the couple was in divorce proceedings, Kylee claimed that Linsay had no legal rights as a parent, because she was not a biological parent and she had not complied with the legal requirements to affirm parental rights through a court order or voluntary declaration of parentage. The trial court agreed. The Idaho Supreme Court interpreted the law as technically as possible in order to affirm the lower court’s decision. Linsay is now a legal stranger to her child.

This 2021 case follows a long history of cases in which a biological parent seeks to cut off a nonbiological parent after the relationship ends. Courts have increasingly begun to recognize the rights of nonbiological parents under different frameworks such as marital presumptions, holding out presumptions, and assistive reproduction statutes. However, each case may have a different outcome depending upon the specific facts and the state where it is decided. While family law attorneys often see parents at their worst, a person who attempts to cut off their co-parent from their children by using bias and historically discriminatory frameworks can be a bridge too far. When the courts buy into such arguments, many may lose faith in the justice that is supposed to be upheld by our legal system. And yet, little attention is paid to the attorneys who take on these cases.

Queer families invite the world to embrace a more expansive, inclusive definition of family. Some families may look relatively traditional from the outside even when they are anything but. For example, a trans man and his wife might use a sperm donor without being perceived as anything other than a traditional nuclear family. For some, queering the family loudly and proudly is the touchstone of the home they build. Some families have more than two parents, all of whom may have biologically contributed to bringing their child into the world, such as where when one parent contributes sperm, one contributes an egg, and a third carries the pregnancy. For some families, a nonbinary parent or a transmasculine parent who has a uterus may be the person who carries the pregnancy. If a transgender woman couples with a cisgender man, they may seek out a surrogate to help them have a child. And of course, single parents by choice often turn to assistive reproduction when they are ready to begin their parentage journey. While these family forms may seem new and unfamiliar to some, at their core, they hold the same traditions of love and home that have always been what holds family together. And they all deserve respect and the protection not just of the law, but of the attorneys practicing that law.

So, when considering whether or not to take on a new client, I want to encourage all attorneys to consider how bias may or may not influence your representation of the client and the long-term implications of the case. Could your clients help create new law that protects more families? Or is your client asking you to encourage a court to use bias and bigotry in its decision-making? Are you prepared to represent clients whose modern family structure may feel foreign to you? If not, don’t be afraid to seek out mentorship and training, so that your clients can feel both seen and supported. And if you simply need help to make sure that what you are doing will fully protect the family in question, don’t be afraid to reach out to those who have been there before. It is my hope that one day, the qualifier of being an LGBTQ+ focused family attorney will be redundant, because all family attorneys will be working to protect all families.