Parents By Sperm Donation Should Be Very Concerned About This Idaho Supreme Court Ruling

You probably know the refrain: No attorney was involved here.

On September 24, 2021, the Supreme Court of Idaho issued an opinion in the case of Gatsby v Gatsby. In its decision, the court addressed a situation where a same-sex female couple split, and only one was genetically related to their child. Incredibly, the court found that a nonbiologically related spouse in a couple who conceived by sperm donation was not a legal parent of the resulting child. Moreover, the ruling called into question the rights of all nonbiologically connected parents in the state who conceived through sperm donation.

The Facts

Linsay and Kylee Gatsby were married in June 2015. Soon after their marriage, they decided, as many couples do, to conceive and raise a child together. As a same-sex couple, they turned to a mutual friend who agreed to donate sperm. Linsay found a sperm donation agreement online, and all three signed the agreement. The mutual friend was designated as a sperm donor with no rights or responsibilities for any resulting child. The “recipient” was listed to include both Linsay and Kylee and specified that they would attempt to become pregnant with the donated sperm and have rights to the child.

No attorney was involved.

Everyone signed the agreement. Linsay performed the insemination on Kylee at their home, and the couple successfully conceived a child. Both Linsay and Kylee signed the birth certificate application at the hospital, and both were named as mothers on the child’s birth certificate. All went well. Until it didn’t.

Less than a year after the child’s birth, Linsay and Kylee were in a violent altercation that resulted in Kylee being arrested and a “No Contact” order being issued, preventing Kylee from seeing the child except at daycare. Soon after, Linsay filed for divorce. Kylee responded by asserting that Linsay did not have legal standing as a parent.

The trial court ruled in Kylee’s favor, agreeing that Linsay was not a parent. The court found that while Linsay had a presumption of being the child’s parent based on the couple’s marriage, the presumption was overcome by the clear and convincing evidence that Linsay was not the child’s biological parent. Further, the court found that Linsay was not a legal parent through other legal avenues, because she failed to utilize other legal proceedings to declare herself a parent. Specifically, the trial court noted that she did not sign a voluntary acknowledgement of paternity affidavit, nor did she go through an adoption process with respect to the child.

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Further, the trial court found that because Linsay did not sign or file a consent form pursuant to the Artificial Insemination Act, she could not receive the benefit of that statute. Signing the sperm donation agreement, inseminating her spouse, signing the birth certificate application, being named on the birth certificate, jointly raising the child together for a time, and holding each other out as parents prior to the divorce — none of those counted as sufficient consent.

A Reminder Not To Use Online Contracts

Linsay appealed the decision to the Idaho Supreme Court. In a split decision, the court sided with Kylee and the trial court, affirming that Linsay was not a legal parent to their child.

The court was particularly critical of the online-sourced sperm donation agreement signed by the parties. “[T]he on-line agreement does not contain any language indicating that Linsay, in her capacity as Kylee’s spouse, consented to Kylee being inseminated. The agreement does not purport to grant Linsay any parental rights relative to the contemplated child as a nonbiological parent, which is precisely what she is attempting to accomplish by enforcing the agreement. In fact, the agreement contains language appearing to do just the opposite.”

The court found that Linsay further failed to comply with the Artificial Insemination Act by not completing and filing a “Request and Consent for Artificial Insemination” form. However, as pointed out by the dissent, in February 2021, the Idaho State Registrar of Vital Statistics testified that there has “never been such a consent document filed with Vital Statistics” and that no purpose exists for such a filing. The testimony confirmed that everyone who has gone through conception with a sperm donor in Idaho — at least up through February 2021 — is in violation of the statute, and at risk of not being recognized as a legal parent of any resulting child.

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The Dissent

The dissent by Justice John R. Stegner disagrees with the majority’s delegitimization of a nonbiological mother’s efforts to establish parental rights. However, the dissent explains, “the most lasting error in this decision is not the majority’s disregard of Linsay’s (and also Kylee’s) efforts to establish and recognize a parental relationship; it is the refusal to grapple with the consequences of this decision.” Stegner argues that the effect of the majority’s opinion is contrary to the public policy of Idaho and jeopardizes the legal protections of a parent whose child was conceived by artificial insemination.

Deputy Director and Family Law Director Cathy Sakimura  of the National Center for Lesbian Rights further explains the danger of this ruling. “This decision is terrible for most children born through assisted reproduction in Idaho. The decision clearly applies to both same- and different-sex spouses and likely affects a larger number of different sex parents. It’s out of step with how other states have looked at these laws by holding that the marital presumption simply does not apply to children born through assisted reproduction.”

What’s The Answer For Nonbiologically Related Parents? 

In the past year, the Idaho legislature eliminated the consent-form filing requirement. The dissent argued that the change was retroactive, as the law it was changing was passed with retroactive effect. But the majority disagreed, and still required strict adherence to that portion of the law for any sperm donation arrangement prior to the change. The trial court noted that Linsay could have signed a Voluntary Acknowledgement of Paternity (VAP), one form of parental protection in a number of states.

Attorneys and other LGBTQ+ activists have been sounding the alarm for years that nonbiologically related and nonbirthing parents need to take extra steps to protect their legal rights. Genavieve Jaffe started Connecting Rainbows after being infuriated to learn that she and her wife had to adopt their own children in order to protect their recognition as legal parents. (Check out this podcast interview.) She explains that being named on your child’s birth certificate is not enough. A court, as in this case, as well as actors in other states, can ignore a birth certificate. Such parents need a court order — through a parentage petition or adoption, depending on a state’s options and other considerations — recognizing their parent-child relationship. It’s a full-employment program for lawyers, but it’s hardly the kind of fair treatment that parents in the United States should be able to expect.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.