How Declining or Accepting Clients May More Fairly Tip the Scales of Justice
| Author | Amira Hasenbush |
| Pages | 48-48 |
48 FAMILY ADVOCATE www.shopaba.org
art: law & practice
By Amira Hasenbush
How Declining or Accepting Clients
May More Fairly Tip the Scales of Justice
As an LGBTQ+ focused family f ormation lawyer,
I probably explain at le ast three times a week
why queer couples w ho have children need
more than just a bir th certicate with both of
their names on it in orde r to fully protect their
parental rights . (A quick primer: birth certic ates, which are
administrative docu ments, are not given the same prote c-
tions across sta te lines by the Constitution’s Full Faith and
Credit Clause as judg ments from a court of law, whether
those are adoption ju dgments or parentage judgme nts.) A
September 2021 Idaho S upreme Court case has made it a ll
too clear that these con cerns are not a thing of the past.
In June 2015, Linsay and Kylee Gatsb y married each other.
Soon after, they decid ed to have a child together using a
known sperm dono r. The three printed a spe rm donor
agreement off th e internet, listing the couple as the “recipi -
ent” and the friend a s the “donor.” Linsay performe d the
insemination on Kylee, wh o became pregnant, and both
were listed on the bir th certicate as the child’s mothe rs.
However, when the couple was in divo rce proceedings, Kylee
claimed that Linsay had n o legal rights as a parent, becau se
she was not a biologica l parent and she had not complied
with the legal requirem ents to afrm parental rights
through a court ord er or voluntary declaration of parent age.
The trial court agre ed. The Idaho Supreme Court in terpreted
the law as technically as p ossible in order to afrm the lower
court’s decis ion. Linsay is now a legal stranger to her chil d.
This 2021 case follows a lon g history of cases in which a
biological parent se eks to cut off a nonbiological par ent
after the relation ship ends. Courts have increasi ngly begun
to recognize the rights of non biological parents under
different framewo rks such as marital presumption s, holding
out presumption s, and assistive reproduc tion statutes.
However, each case may have a dif ferent outcome depend-
ing upon the speci c facts and the state where it is d ecided.
While family law attorne ys often see parents at their wor st, a
person who at tempts to cut off their co-pa rent from their
children by using bias and h istorically discriminatory frame -
works can be a bridg e too far. When the courts buy into such
arguments, many m ay lose faith in the justice that is sup-
posed to be upheld b y our legal system. And yet, lit tle
attention is paid to the a ttorneys who take on these case s.
Queer families invite the w orld to embrace a more
expansive, inclus ive denition of family. Some families may
look relatively tradition al from the outside even when they
are anything but. F or example, a trans man and his wife
might use a sperm do nor without being perceived as
anything other than a t raditional nuclear family. For some,
queering the family loud ly and proudly is the touchstone of
the home they build. So me families have more than two
parents, all of who m may have biologically contributed to
bringing their child into the wo rld, such as where when one
parent contributes s perm, one contributes an egg, and a
third carries the preg nancy. For some families, a nonbinar y
parent or a transmas culine parent who has a uterus may be
the person who c arries the pregnancy. If a transgend er
woman couples with a cis gender man, they may seek out a
surrogate to help them have a ch ild. And of course, single
parents by choice of ten turn to assistive reproduc tion when
they are ready to begin the ir parentage journey. While these
family forms may seem new a nd unfamiliar to some, at their
core, they hold the sam e traditions of love and home that
have always been what hol ds family together. And they all
deserve res pect and the protection not ju st of the law, but of
the attorneys pra cticing that law.
So, when considerin g whether or not to take on a new
client, I want to encourage a ll attorneys to consider how bias
may or may not inuence your re presentation of the client
and the long-term im plications of the case. Could your client s
help create new law that prote cts more families? Or is your
client asking you to encoura ge a court to use bias and
bigotry in its de cision-making? Are you prepared to repre -
sent clients whos e modern family structure may feel fo reign
to you? If not, don’t be afraid to see k out mentorship and
training, so that your client s can feel both seen and suppor t-
ed. And if you simply ne ed help to make sure that what you
are doing will fully protec t the family in question, don’t be
afraid to reach out to those w ho have been there before. It is
my hope that one day, the qualie r of being an LGBTQ+
focused family at torney will be redundant, becaus e all family
attorneys will be wor king to protect all families. fa
AMIRA HASENBUSH (amira@allfamilylegal.com) is the founder
of All Family Legal in Los Ang eles, California, a law rm focusing
on serving LGBTQ+ famil ies. Prior to founding the rm, Amira
spent ve and a half years as t he Jim Kepner Law and Policy
Fellow for the Williams Inst itute, where she did research and
published repor ts on LGBT law and policy.
Published in Family Advocate, Volume 44, Number 3, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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