Indiana Court Favors Lesbian Ex-Partner Over Biological Mother in Custody Case
by Ryan McCann

The recent Indiana Court of Appeals' ruling on King v. S.B. has largely flown under the media radar. In this case a lesbian couple (Dawn King and Stephanie Benham) used the sperm of Dawn's brother to artificially fertilize Stephanie and fulfill their dream of becoming parents. Their child (A.B.) was born in 1999 and by 2003 the couple split. At the time of the split Stephanie (the biological mother) decided to sever all ties with Dawn, including Dawn’s visitation of A.B. Dawn then filed suit in order to gain "co-parentage" with Stephanie over A.B.

The trial court showed sympathy for Dawn's position but rejected her request for "co-parentage." This court informs us of the circumstances within the law in which the State of Indiana recognizes parental rights: 1) heterosexual marriages 2) biological paternity 3) the limited circumstance of children conceived by artificial fertilization within a marital relationship[emphasis mine] with the assistance of an anonymous semen donor, and 4) adoption. The court went on to say that adoption is the only option available for homosexual couples. Dawn never chose to adopt A.B., therefore she has no parental rights.

This complicated situation was made fairly simple through the logical reasoning and actions of the trial court. The court took the facts of the case and applied them to the law with the help of judicial precedent. However, the Indiana Court of Appeals decided that the trial court was wrong. It scolds the trial court for relying too much on marriage, though family law depends on marriage for its basic structure. It randomly declares a new law of its own - "[IF] [t]wo 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." Finally, this appellate court blames the Indiana legislature for its own judicial activism, stating that, "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."

The trial court's decision was logical and reasonable. Dawn did not meet any of the legal criteria necessary for gaining parental rights. All Dawn had to do was adopt A.B., but she didn't. Dawn was not legally married to Stephanie, nor was she a biological parent of A.B. The criteria for parental rights, rooted in marriage, are sound and keep children safe. The logic used by the Indiana Court of Appeals in abandoning these criteria put children at risk. In addition, randomly legislating from the bench because the law is not crystal clear is not the proper course to take. The Indiana legislature cannot be expected to address every strange scenario tiny groups of misguided citizens throw its way. The Indiana Court of Appeals must show common sense and judicial restraint. Though the facts in this case were difficult, justice can done if judges will rely less on their goals for society and more on the rule of law. The trial courts' decision in this case is but one example.