Question: Under Indiana Law In 2014, Does A Lesbian Partner Have Parental Rights?
Answer: NO, But that could be changing as a case is going to be heard in federal court.
During the course of their same-sex domestic partnership, N.J. (Mother) and A.C. (Partner) decided to have a child together. Mother was artificially inseminated with donor semen and gave birth to C.J. (Child), and for a time, Mother, Partner, and Child functioned as a family unit. When Child was two years old, Mother and Partner ended their relationship. Thereafter, Partner exercised regular visitation with Child for several months, until Mother stopped all contact between Partner and Child. Partner then filed a petition seeking joint custody and visitation, which the trial court denied. Partner now appeals.
On appeal, the Appellate Court noted that nearly a decade ago, the Appellate Court first addressed the issue of whether two women in a same-sex domestic partnership who agree to bear and raise a child together by artificial insemination of one of the partners with donor semen are both the legal parents of the resulting child. This Court had found 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. 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. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth. This Court then held 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.
However, the Indiana Supreme Court vacated this opinion in full, meaning that the Indiana Supreme Court disapproved of the appellate ruling and by vacating it, made that opinion have no basis in Indiana Law to argue that the trial and/or appellate courts should found that ruling! Further, the status of the law surrounding a lesbian partner’s right, if any, to enjoy the rights of a legal parent of a child born to her partner under the circumstances presented here remains uncertain. The existing statutory framework does not contemplate the increased use of assisted reproductive technologies. Accordingly, it provides no guidance in situations where an intended parent lacks a genetic connection to the child. That deficiency is exacerbated by the growing recognition of less traditional family structures. Our system of government entrusts the General Assembly, not the courts, to fashion a framework for deciding matters as tethered to social mores and sensibilities as this subject is. Indeed, what began as a trickle is rapidly becoming a torrent, and the number of children whose lives are impacted by rules that have yet to be written only increases with the passage of time. They, and we, would welcome a legislative roadmap to help navigate the novel legal landscape in which we have arrived. Until that happens, however, we must do the best we can to resolve the issues that come before us. In the absence of a legislative directive, if full parental rights are to be recognized in a former same-sex partner under the circumstances presented here, that recognition must come from our Supreme Court. 1 N.E.3d 685