Attorneys for a divorced lesbian couple fighting over child support in a closely watched case agreed Thursday that consent to having a baby together is a crucial issue but disagreed over whether both spouses gave it.
A woman wants to sever her parental rights to a child her ex-wife gave birth to while she was deployed with the military and is asking the Hawaii Supreme Court to overturn a family court ruling denying that request.
The justices heard arguments Thursday and seemed troubled by considering consent. Associate Justice Sabrina McKenna said that could lead to treating same-sex couples differently from opposite-sex couples.
National gay rights advocates are watching how the dispute plays out, likely the first such case before a state Supreme Court, experts say.
The woman seeking to end her parental rights didn't agree to her then-wife getting pregnant through a sperm donor, wasn't there for the baby's birth and never had a meaningful relationship with the child, her attorney, Rebecca Copeland, told the justices.
The dispute reflects the "changing landscape" of families in Hawaii, Copeland said, adding that the state's laws need to change.
"They jointly made a choice as a married couple to bring him into this world," argued Peter Renn of prominent LGBT-rights group Lambda Legal, which is representing the woman who gave birth.
When discussing consent, the justices explored a variety of hypothetical situations, including a woman who stops taking birth control without her husband's knowledge and a man disputing his parental rights after finding out his wife had a child by having an affair with another man.
Chief Justice Mark Recktenwald said the court will issue a ruling later.
The couple, who are not identified in the confidential family court case, married in Washington, D.C., in 2013 and moved to Hawaii because of military orders for the woman seeking to end her parental rights.
Throughout the marriage, the couple talked about the possibility of having a child together, the court said. While the woman was deployed between January and September 2015, her wife got pregnant. The woman filed for divorce in October 2015, and the child was born while it was pending.
The family court denied her petition because it found that Hawaii's Uniform Parentage Act and Marriage Equality Act presumes that a legal spouse of a woman who gives birth to a baby is the parent of that child, regardless of the spouse's gender.
"This is a very important and of-the-moment question in the LGBT community right now, which is how are states going to treat parents of children where there are a same-sex marriage couple," said Cathy Sakimura, family law director for the National Center for Lesbian Rights, which is not involved in the case.
"Are they going to give them the same kind of recognition that any other couple would get or are they going to have a different rule applied to them?" Sakimura said.
There are a handful of similar cases nationwide, but the Hawaii dispute is likely the first involving a same-sex married couple with a child support case before a state's highest court, she said.
Most same-sex parental rights cases involve a spouse who didn't give birth to a child and wants custody, Sakimura said.
"It doesn't happen that often in the same-sex parenting world, but there are few cases where they are trying to avoid child support," she said.
In such cases, conception is a key question, Sakimura said.
"Did the spouse consent to the procedure and know about it? And that is what triggers them being a parent," she said.
The case will test marriage equality, Renn with Lambda Legal has said.
"This is unusual in that biology is being used as a shield to evade parental obligation," he said. "Equal rights come with equal responsibility."
Arguments were held in a high school auditorium because the case is being used to teach students about courts.