Opposition Brief — Linsay Lorine Gatsby, nka Linsay Lorine Wallace, Petitioner v. Kylee Diane Gatsby

No. 21-1212

In the

Supreme Court of the United States

__________________

LINSAY LORINE GATSBY,

N/K/A LINSAY LORINE WALLACE,

Petitioner,

v.

KYLEE DIANE GATSBY,

Respondent.

__________________

On Petition for Writ of Certiorari to the

Supreme Court of Idaho

__________________

BRIEF IN OPPOSITION

__________________

MICHAEL J. DOOLITTLE

Counsel of Record

MICHAEL DOOLITTLE PC

2312 N. Cole Road, Suite E

Boise, Idaho 83704

(208) 639-1845

michael@michaeldoolittlepc.com

Counsel for Respondent

April 5, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

When a woman conceives by artificial insemination

using third-party donor sperm, does the United States

Constitution compel the State of Idaho to recognize the

woman’s spouse as a parent, despite the parties’ failure

to comply with the Idaho statute that provides for

parental rights in cases of artificial insemination?

ii

RELATED PROCEEDINGS

No other case is directly related to the case in this

Court within the meaning of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 2

B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. District Court. . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. Idaho Supreme Court . . . . . . . . . . . . . . . . . . . 8

C. Idaho’s Common Law and Statutory Scheme for

Determining a Child’s Parents. . . . . . . . . . . . . . 10

REASONS FOR DENYING THE PETITION. . . . . 13

A. The Idaho Supreme Court’s Decision Correctly

Interprets Applicable Law . . . . . . . . . . . . . . . . . 13

B. The Idaho Supreme Court’s Decision Does Not

Conflict with this Court’s Equal Protection

Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

C. The Idaho Supreme Court’s Decision Does Not

Conflict with this Court’s Due Process Cases. . . . 18

D. The Idaho Supreme Court’s Decision Does Not

Conflict with the Decisions of Other State

Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. The Opinion Below Will Have a Limited Impact

and a Proposed Remedy Is Not Readily Apparent

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

v

TABLE OF AUTHORITIES

CASES

Alber v. Alber,

472 P.3d 321 (Idaho 1970) . . . . . . . . . . . . 8, 11, 20

Boseman v. Jarrell,

704 S.E.3d 494 (N.C. 2010) . . . . . . . . . . . . . 25, 26

Brooke S.B. v. Elizabeth A.C.C.,

61 N.E. 3d 488 (N.Y. 2016) . . . . . . . . . . . . . . 26, 27

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . . . 16

Custody of H.S.H.-K.,

533 N.W.2d 419 (Wis. 1995) . . . . . . . . . . . . . . . . 23

D.M.T. v. T.M.H.,

129 So.3d 320 (Fla. 2013) . . . . . . . . . . . . . . . 28, 29

Doe v. Doe,

395 P.3d 1287 (Idaho 2017) . . . . . . . . . . . . . . . . 31

Eldredge v. Taylor,

339 P.3d 888 (Okla. 2014) . . . . . . . . . . . . . . . . . 27

Eller v. Idaho State Police,

443 P.3d 161 (Idaho 2019) . . . . . . . . . . . . . . . . . 13

Gomez v. Crookham Co.,

457 P.3d 901 (Idaho 2020) . . . . . . . . . . . . . . . . . 14

In Re Parentage of L.B.,

122 P.3d 161 (Wash. 2005) . . . . . . . . . . . . . . . . . 21

In re Parentage of M.F.,

475 P.3d 642 (Kan. 2020) . . . . . . . . . . . . . . . 24, 25

vi

Jones v. State Bd of Medicine,

555 P.2d 399 (Idaho 1976) . . . . . . . . . . . . . . . . . 13

Kulstad v. Maniaci,

220 P.3d 595 (Mt. 2009) . . . . . . . . . . . . . . . . 23, 24

Latta v. Otter,

771 F.3d 456 (9th Cir. 2014). . . . . . . . . . . . . . . . 12

Leavitt v. Craven,

302 P.3d 1 (Idaho 2012) . . . . . . . . . . . . . . . . 13, 14

Matter of Alison D. v. Virginia M.,

572 N.E.2d 27 (N.Y. 1991) . . . . . . . . . . . . . . . . . 26

Meyer v. Nebraska,

262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . 18

Michael H. v. Gerald D.,

491 U.S. 110 (1989). . . . . . . . . . . . . . . . . . . . . . . 20

Moore v. Assente,

110 S.W.3d 336 (Ky. 2003) . . . . . . . . . . . . . . . . . 28

Mullins v. Picklesimer,

317 S.W.3d 569 (Ky. 2010) . . . . . . . . . . . . . . . . . 28

Obergefell v. Hodges,

576 U.S. 644 (2015). . . . . . . . . . . . . . . . . . . . 13, 15

Olsen v. J.A. Freeman Co.,

791 P.2d 1285 (Idaho 1990) . . . . . . . . . . . . . . . . 13

Pavan v. Smith,

137 S. Ct. 2075 (2017). . . . . . . . . . . . . . . . . . . . . 15

Rosemarie P. v. Kelly B.,

2021 WL 4697719 (Alaska Oct. 8, 2021) . . . 22, 23

vii

Smith v. Gordon,

968 A.2d 1 (Del. 2009) . . . . . . . . . . . . . . . . . 21, 22

Smith v. Guest,

16 A.3d 920 (Del. 2011) . . . . . . . . . . . . . . . . 21, 22

Stockwell v. Stockwell,

775 P.2d 611 (Idaho 1989) . . . . . . . 5, 6, 7, 8, 9, 30

V.C. v. M.J.B.,

748 A.2d 539 (N.J. 2000),

cert. denied, 631 U.S. 926 (2000) . . . . . . . . . . . . 23

Valiant Idaho, LLC v. JV L.L.C.,

429 P.3d 168 (Idaho 2018) . . . . . . . . . . . . . . . . . 13

Verska v. Saint Alphonsus Regional Med. Ctr.,

265 P.3d 502 (Idaho 2011) . . . . . . . . . . . . . . . . . 14

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. XIV, § 1 . . . . . . . . . . . . . . . . . . 19

STATUTES

28 U.S.C. 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Idaho Code § 7-1101 et seq. . . . . . . . . . . . . . . . . . . . 11

Idaho Code § 7-1106 . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Idaho Code § 16-1501 et seq. . . . . . . . . . . . . . . . . 5, 11

Idaho Code § 32-717 . . . . . . . . . . . . . . . . . . . . . . . 6, 32

Idaho Code § 32-1701 et seq. . . . . . . . . . . . . . . . . . . 24

Idaho Code § 39-255(e)(1) . . . . . . . . . . . . . . . . . . . . 10

Idaho Code § 39-274 . . . . . . . . . . . . . . . . . . . . . . . . . 11

viii

Idaho Code § 39-5401 et seq. . . . . . . . . . . . . . . . . . . 11

Idaho Code § 39-5402 . . . . . . . . . . . . . . . . . . 11, 14, 16

Idaho Code § 39-5403 . . . . . . . . . . . . . . . . . . . . . . 5, 12

Idaho Code § 39-5403(1). . . . . . . . . . . . . . . . . . . . . . 10

Idaho Code § 39-5404 . . . . . . . . . . . . . . . . . . . . . 12, 14

Idaho Code § 39-5405 . . . . . . . . . . . . . . . . . . . . . . . . 12

Idaho Code § 39-5405(3). . . . . . . . . . . . . . . . . 9, 10, 16

Idaho Code § 39-5406 . . . . . . . . . . . . . . . . . . . . . . . . 11

Idaho Code § 39-5408 . . . . . . . . . . . . . . . . . . . . . 12, 15

Idaho Code § 73-114 . . . . . . . . . . . . . . . . . . . . . . . . . 12

Idaho Code § 73-114(1)(b) . . . . . . . 7, 9, 13, 14, 15, 25

1

RESPONSE TO PETITION FOR A

WRIT OF CERTIORARI

Respondent respectfully requests that this Court

deny the petition for a writ of certiorari.

OPINIONS BELOW

The opinion of the Idaho Supreme Court (Pet. App.

1a-47a) is reported at 495 P.3d 996. The opinions of the

district court (Pet. App. 93a-134a) and the magistrate

division of the district court (Pet. App. 59a-92a) are

unreported.

JURISDICTION

The Idaho Supreme Court entered its judgment on

September 24, 2021. On December 16, 2021, Justice

Kagan extended the time within which to file a petition

for a writ of certiorari to and including February 7,

2022. Petitioner timely filed a petition for a writ of

certiorari on February 7, 2022, which was docketed on

March 7, 2022. This Court has jurisdiction under 28

U.S.C. 1257(a).

INTRODUCTION

This case presents a question of vital interest to the

parties, the State of Idaho and those Idaho residents

who may need to use artificial insemination to conceive

a child. In 1982, Idaho enacted its Artificial

Insemination Act (“AIA”) to provide a path to confirm

the legal parental status of the non-biological spouse to

a woman who undergoes artificial insemination. Kylee

and Linsay, a same-sex married couple, conceived a

child through artificial insemination without complying

2

with the AIA. The court below applied the AIA in a

sexual-orientation-neutral, gender-neutral fashion. Pet.

App. 11a. The court below affirmed the ruling of the

district court that Linsay could not obtain parental

rights to the child under the AIA because she did not

comply with all the requirements of the law. Pet. App.

15a. The court went on to affirm, based upon a bestinterests-of-the-child analysis under Idaho law, that it

was not in the child’s best interest for Linsay to have

custody or visitation, and Kylee was awarded sole

custody. Pet. App. 23a.

Contrary to Petitioner’s argument, the decision

below does not conflict with this Court’s equal

protection or due process rulings, nor does it conflict

with the state court decisions Petitioner cites. The

decision construes an Idaho statute in a genderneutral, sexual-orientation-neutral manner and makes

clear that the statute applies equally to same-sex and

opposite-sex couples.

STATEMENT OF THE CASE

A. Factual Background

Kylee and Linsay were married on June 23, 2015.

Pet. App. 60a. Both of them had previously been

married, and Linsay was a mother to two children. The

magistrate court found that, “The parties’ marriage

hinged on Kylee having a child of her own.” Pet. App.

60a-61a.

The couple did not seek the aid of a physician to

become pregnant but instead enlisted the help of a

friend, TW, who agreed to donate sperm. Pet. App. 61a.

Kylee, Linsay and TW entered into an agreement that

3

Linsay found online (the “Sperm Donor Agreement”).

Pet. App. 2a. Under the Sperm Donor Agreement, TW

agreed to donate his sperm for the purpose of artificial

insemination and agreed not to pursue his right to

establish paternity or seek guardianship, custody, or

visitation of any resulting child. Id. The Sperm Donor

Agreement does not specify whether Kylee or Linsay is

to be inseminated, nor does it contain language by

which either Kylee or Linsay “requests” or “consents”

that she be artificially inseminated. Pet. App. 14a. The

Sperm Donor Agreement does not contain language by

which either Kylee or Linsay accepts the rights and

responsibilities of parenthood of any child produced by

artificial insemination. Id. Petitioner’s assertions to the

contrary at Pet. 3 are inaccurate. Rec. 125-127.1

Kylee was inseminated with TW’s sperm using

syringes, a cup and other medical supplies purchased

online. Pet. App. 61a. The insemination was eventually

successful, and Kylee gave birth to the child on October

29, 2016. Id. Both Kylee and Linsay were identified as

mothers on the child’s birth certificate. Pet. App. 62a.

From her birth until July 3, 2017, Kylee was the child’s

primary caregiver. Id.

On July 3, 2017, at a time when both had been

consuming alcohol, Kylee and Linsay had a fight. Pet.

App. 68a. Kylee attempted to hug Linsay and was

pushed away, following which a pushing match ensued.

Kylee pushed Linsay out of bed and Linsay punched

Kylee in the nose, breaking it. Pet. App. 68a-69a.

1

“Rec.” refers to the Clerk’s Record on Appeal in Idaho Supreme

Court Case No. 47710 (filed Aug.23, 2017).

4

Linsay called the police, who arrested Kylee. Id.

Attempting to quickly accept responsibility and return

to being the child’s primary caregiver, Kylee accepted

a plea bargain and pled guilty to misdemeanor

domestic violence. Id. Kylee was placed on probation

and granted a withheld judgment. Pet. App. 69a. The

court issued a no-contact order preventing Kylee from

contact with the child. The no-contact order was in

effect from July 3, 2017 until December 27, 2017, and

during this time Linsay was the child’s primary

caregiver. Pet. App. 63a. While Linsay was the child’s

primary caregiver, she placed her needs before the

child’s, including by leaving the child overnight with a

caregiver for 31 nights. Pet. App. 64a.

Linsay filed for divorce on August 29, 2017 (Pet.

App. 69a) and the case was heard at a three-day trial

in July and August of 2018. Pet. App. 59a. The trial

court issued Findings of Fact and Conclusions of Law

on November 15, 2018. Pet. App. 59a. An Amended

Judgment and Decree of Divorce was entered on

November 19, 2018. Pet. App. 93a.

B. Proceedings Below

1. Trial Court

At trial, the magistrate determined that under

Idaho’s common-law marital presumption, a rebuttable

presumption existed that Linsay was the child’s parent

due to Linsay being married to Kylee when the child

was born. Pet. App. 78a. The magistrate also found

that the presumption had been rebutted by clear and

convincing evidence that Kylee and TW were the child’s

biological parents. Pet. App. 79a. Thus, Linsay was not

5

the child’s parent by means of the marital presumption.

Id.

The magistrate also held that Linsay had not

pursued the other avenues available to her to become

the child’s legal parent:

Linsay did not sign or properly file a

voluntary acknowledgment of paternity affidavit

pursuant to Idaho Code § 7-1106. Had Linsay

done so, she would have been declared a legal

parent. Linsay did not adopt [the child]

pursuant to Idaho Code § 16-1501 et seq. Had

Linsay done so, she would have been a legal

parent. Linsay did not comply with the Artificial

Insemination Act and cannot receive the benefit.

Linsay did not sign or file a consent form

pursuant to Idaho Code § 39-5403. Had Linsay

done so, she would have been a legal parent.

Linsay does not get the benefit of the law that

she did not invoke and follow. Pet. App. 79a.

Although the magistrate held that there was no

statutory authority granting Linsay permission to seek

custody of or visitation with the child, the magistrate

then applied Idaho Supreme Court precedents that

recognize situations where custody of a child may be

awarded to a person not related to the child by blood or

existing marriage. Pet. App. 79a-80a; see Stockwell v.

Stockwell, 116 Idaho 297, 775 P.2d 611 (Idaho 1989).

The magistrate held that under Stockwell and its

progeny, Linsay could not meet the standard to seek

custody of the child because she could not prove, by

clear and convincing evidence, that Linsay had custody

6

of the child for an “appreciable period of time.” Pet.

App. 79a-88a.

Despite holding that Linsay lacked standing under

Stockwell to seek custody of the child, the magistrate

went on to analyze Linsay’s rights to custody and

visitation assuming, for the sake of argument, that

Linsay did have standing. Pet. App. 88a-91a. In this

analysis, the magistrate applied the court’s discretion

in awarding custody of minor children and the “best

interests of the child” standard, including the factors

set out in Idaho Code § 32-717. Id. The magistrate

concluded that Linsay had not proven by clear and

convincing evidence that it was in the child’s best

interest to have visitation with Linsay. Pet. App. 91a.

The court noted among other factors the toxic and

unhealthy relationship between Kylee and Linsay,

which would subject the child to ongoing conflict and

suffering. Pet. App. 90a. The court granted Kylee sole

legal and physical custody of the child. Pet. App. 91a.

2. District Court

The district court upheld the magistrate court’s

determination that the marital presumption applied

but had been rebutted by clear and convincing

evidence. Pet. App. 101a-103a. The district court also

upheld the magistrate’s determination that Linsay had

not proved parentage by (i) adopting, (ii) signing and

filing a voluntary affidavit of paternity pursuant to

Idaho’s Paternity Act or (iii) complying with the AIA.

Pet. App. 104a-108a. Linsay had argued that she was

unable to comply with the Paternity Act or the AIA

because those statutes use gendered terms such as

“father” and “husband” which do not apply to her. Pet.

7

App. 104a, 107a. The district court rejected this

interpretation, noting that Idaho Code § 73-114(1)(b)

provides where, as in the Paternity Act and AIA, terms

such as “husband” are not defined, a gender-neutral

use is implied (“Words used in the masculine gender,

include the feminine and neuter[.]”) Id. This

interpretation, the district court found, affords samesex couples the same rights as opposite-sex couples.

Pet. App. 107a.

The district court also upheld the magistrate’s

conclusion that Linsay had not complied with the AIA

because the artificial insemination was not performed

by a physician, as required by the statute to ensure the

health of the prospective child and mother. Pet. App.

106a. Nor did Linsay sign or file a “prior written

request and consent” as required by the statute. Pet.

App. 105a. The district court found that, had Linsay

“sought the protections of the act it is certain in this

[c]ourt’s analysis and inherent in the magistrate’s

decision that she would have been entitled to the

statutory benefits, regardless of the reference to

‘husband.’ A gender neutral analysis would be

applicable.” Pet. App. 107a. Accordingly, Linsay’s

failure to pursue the process outlined in the AIA

precluded her from reaping the benefits provided by

the act. Id.

With respect to the third-party standing analysis

under Stockwell, the district court held that the

magistrate did not abuse her discretion by determining

that the amount of time Linsay had spent as the child’s

primary caregiver did not constitute an “appreciable

period of time” sufficient to satisfy Stockwell. Pet. App.

8

115a. Even if the magistrate had abused her discretion

by not finding standing under Stockwell, any error had

been cured because the magistrate went on to apply the

best-interests-of-the-child analysis that would have

been required under Stockwell. Pet. App. 115a-116a.

And the district court refused to disturb the bestinterests-of-the-child analysis conducted by the

magistrate in her discretion. Pet. App. 129a-130a. In

conclusion, the district court found:

The decisions of the magistrate were not based

on a differential treatment of same sex

marriages from heterosexual marriages. The

appellant has shown no application of the law to

the same sex marriage and custody

determination than would be applicable in

heterosexual marriage. She had the same

avenues to pursue and obtain parental rights as

a non-biological related male spouse. No abuse

of discretion has been shown. Pet. App. 134a.

3. Idaho Supreme Court

The four-justice majority of the court below first

ruled that the common-law marital presumption and

the Idaho Paternity Act were inapplicable to the case.

Pet. App. 9a. Because the AIA was enacted after the

decision in Alber v. Alber, 472 P.3d 321 (Idaho 1970)

(which established that the common-law marital

presumption is rebuttable) and after the adoption of

the Idaho Paternity Act, and because the AIA was

enacted to address issues specific to artificial

insemination, the court below held that the AIA and

the AIA alone controlled the resolution of the case. Pet.

App. 8a-9a.

9

The court affirmed the district court’s reliance on

Idaho Code § 73-114(1)(b) to interpret the AIA in a

gender-neutral manner and found that, as thereby

interpreted, the AIA was applicable and available to

Linsay to secure parental rights over the child. Pet.

App. 11a-12a. However, the court upheld the lower

courts’ findings that Linsay did not comply with the

AIA because (i) she did not sign a written request and

consent as contemplated by the AIA, (ii) a licensed

physician did not perform the artificial insemination

and sign the written request and consent and (iii) the

written request and consent was not filed with the

state registrar of vital statistics. Pet. App. 12a-15a.

Using longstanding principles of statutory

construction, the court declined to read section 395405(3) of the AIA in isolation, as Linsay urged, and

ruled instead that all provisions of the statute must be

complied with in order to receive its benefit. Pet. App.

16a-19a. The court found that the record fully

supported the lower courts’ conclusion that Linsay had

not complied with the AIA and thus was not entitled to

legal parenthood pursuant to its provisions. Pet. App.

16a-22a.

The court did not address whether Linsay had

third-party standing to seek custody under Stockwell,

agreeing with the district court that any error in the

standing analysis was cured because the magistrate

fully addressed whether giving Linsay custody would

be in the best interests of the child. Pet. App. 23a-30a.

The court affirmed the lower courts’ ruling that giving

Linsay custody would not be in the best interests of the

child. Pet. App. 30a.

10

One of the five justices of the court dissented,

arguing that section 39-3405(3) of the AIA could be

read in isolation from the rest of the statute to grant

Linsay parental rights. Pet. App. 32a-37a. The

dissenting justice further argued that Linsay’s actions

and intentions sufficed to evidence the written request

and consent required by the AIA, ignoring section 395403(1) of the act. Pet. App. 37a-41a. To the dissenting

justice, Idaho public policy favoring legitimacy and

support for the family unit should have trumped a

strict reading of the AIA and insistence on compliance

with all of the AIA’s terms. Pet. App. 37a. The

dissenting justice also believed that the majority failed

to consider the consequences of its decision, which he

argued would jeopardize legal protections for people

whose spouses undergo artificial insemination. Pet.

App. 32a.

C. Idaho’s Common Law and Statutory Scheme

for Determining a Child’s Parents

1. Petitioner lists Idaho Code § 39-255(e)(1),

regarding birth certificates, as part of Idaho’s statutory

scheme for recognizing a child’s parents. Pet. 5. This is

inaccurate and misleading. This statute does not confer

legal parental status; it simply governs records of

events and information concerning those events which

have been reported. This statute is part of the Idaho

Vital Statistics Act, which is a comprehensive system

by which the state tracks vital statistics such as

deaths, births, marriages, divorces, annulments,

adoptions, abortions and stillbirths. The act governs

the events to be tracked, the information to be

obtained, and the forms, rules and procedures to be

11

utilized. The act also prescribes forms, rules and

procedures for altering the information contained in

the vital records. While the act provides that any

certificate or copy of vital records certified by the state

registrar is prima facie evidence of the facts recited in

the certificate (Idaho Code § 39-274), it is evidence

which can be overcome by proof of contrary facts.

2. Idaho’s common law has long presumed that a

child conceived during marriage is the child of the birth

mother and her spouse. Alber, 472 P.3d 321 at 324

(Idaho 1970). That presumption is rebuttable and may

be overcome by clear and convincing evidence. Id. at

326-370.

3. Idaho law also provides an avenue to legal

parenthood through compliance with the Idaho

Paternity Act or adoption. Idaho Code §§ 7-1101-71126; Idaho Code §§ 16-1501-16-1515.

4. In 1982, Idaho enacted the AIA to govern the

process of a married couple conceiving a child through

artificial insemination. Idaho Code §§ 39-5401-39-5408;

Pet. App. 51a-53a. Prior to the adoption of the AIA, no

laws, statutes or rules governed the process of artificial

insemination in Idaho. The AIA is a comprehensive act

designed to advance substantial and important state

interests surrounding the process of artificial

insemination. The AIA is applicable to all persons

conceived as a result of artificial insemination on or

after the effective date of the act (Idaho Code § 395406); provides only physicians or persons under their

supervision may select semen donors or perform

artificial insemination (Idaho Code § 39-5402);

prohibits donation of semen by a person who has a

12

disease or defect transmissible by genes or who knows

he has a venereal disease (Idaho Code § 39-5404);

requires that semen donation facilities use all

reasonable means to detect if a donor has an antibody

of HTLV-III in his blood, and prohibits the use of such

donors for artificial insemination (Idaho Code § 395408); and requires that no artificial insemination be

performed on a woman without her prior written

consent and the prior written consent of her husband,

and that such consents be filed with the State

Registrar of Vital Statistics by the physician who

performs the insemination (Idaho Code § 39-5403). If

the requirements of the AIA are fulfilled: (i) the donor

has no right, obligation or interest with respect to the

child born through artificial insemination; (ii) the child

has no right, obligation or interest with respect to the

donor; and (iii) the relationship, rights and obligation

between the child and the mother’s husband are the

same for all legal intents and purposes as if the child

had been naturally and legitimately conceived, if the

husband consented to the performance of artificial

insemination. (Idaho Code § 39-5405); Pet App. 51a53a.

At the time the AIA was enacted, same-sex

marriage was not legal in Idaho. Marriage as it then

existed was only between a man and a woman, so the

AIA uses the terms “husband” and “wife.” Same-sex

marriage became legal in Idaho when the Ninth Circuit

announced its decision in Latta v. Otter, 771 F.3d 456

(9th Cir. 2014). The Idaho legislature has not

specifically updated its Family Law Code, but it has

otherwise addressed gendered language in Idaho

statutes. Idaho Code § 73-114 is a general provision of

13

Idaho law which relates to the construction of statutes.

It provides: “Unless otherwise defined for purposes of

a specific statute: (b) Words used in the masculine

gender, include the feminine and neuter;” Pet. App.

11a. The term “husband” is not defined in the AIA, and

the court below found that the use and application of

§ 73-114(1)(b), as intended by the Idaho legislature,

permits the AIA to be read and applied in a genderneutral, sexual-orientation-neutral fashion. Pet. App.

11a-12a.

REASONS FOR DENYING THE PETITION

A. The Idaho Supreme Court’s Decision

Correctly Interprets Applicable Law

1. The court below correctly determined that the

AIA is the controlling statute in this case, recognizing

that “the legislature clearly has the power to abolish or

modify common law rights and remedies.” Olsen v. J.A.

Freeman Co.,791 P.2d 1285, 1296 (Idaho 1990) (citing

Jones v. State Bd of Medicine, 555 P.2d 399 (Idaho

1976). Where two statutes conflict, courts should apply

the more recent and more specifically applicable

statute. Eller v. Idaho State Police, 443 P.3d 161, 168

(Idaho 2019) (citing Valiant Idaho, LLC v. JV L.L.C.,

429 P.3d 168, 177 (Idaho 2018); Pet. App. 8a-9a.

2. The court below recognized that this Court’s

decision in Obergefell v. Hodges, 576 U.S. 644 (2015),

requires the AIA to be read in a gender-neutral manner

and to apply equally to opposite-sex couples and samesex couples. Pet. App. 11a. The court also recognized

that statutes must be interpreted in a manner that

upholds their constitutionality whenever possible.

14

Leavitt v. Craven, 302 P.3d 1, 5 (Idaho 2012); id. The

court below correctly applied the provisions of Idaho

Code § 73-114(1)(b) to read the AIA in a gender-neutral

manner. Id.

3. The court below correctly applied standard rules

of statutory interpretation and construction. The court

applied the doctrine of in pari materia, requiring the

AIA to be read and construed as one system, with the

objective of giving effect to the intent of the legislature.

Gomez v. Crookham Co., 457 P.3d 901, 906 (Idaho

2020); Pet. App. 16a-17a. The court read the provisions

of the AIA not in isolation but considered in context

and as a whole. Pet. App. 16a. The court gave effect to

all the words and provisions of the AIA so that none

were void, superfluous or redundant. Id. The court

recognized that, “The public policy of legislative

enactments cannot be questioned by the courts and

avoided simply because the courts might not agree with

the public policy so announced.” Verska v. Saint

Alphonsus Reg’l Med. Ctr., 265 P.3d 502, 509 (Idaho

2011); Pet. App. 19a.

4. Based on the evidence presented in the case, and

applying the provisions of the AIA, the court below

concluded that Linsay had not complied with the

requirements of the AIA and thus could not obtain the

benefit of legal parenthood provided by the statute. Pet.

App. 15a. The semen donor was not selected and the

artificial insemination was not performed by a

physician, as required by Idaho Code § 39-5402. Id. The

semen donor was not questioned about diseases or

genetic defects, nor about whether he had or might

have a venereal disease, as required by Idaho Code

15

§ 39-5404. Pet. App.18a. The donor’s blood was not

checked for HTLV-III antibodies, as required by Idaho

Code § 39-5408. Id. Neither Linsay, Kylee nor a

physician signed a written request and consent, and no

request and consent was filed. Pet. App. 13a-18a.

B. The Idaho Supreme Court’s Decision Does Not

Conflict with this Court’s Equal Protection

Decisions

1. The Idaho Supreme Court’s decision in this case

does not conflict with this Court’s holdings in

Obergefell v. Hodges, 576 U.S. 644 (2015), and Pavan v.

Smith, 137 S. Ct. 2075 (2017). Unlike in Pavan, the

couple in this case applied for and received a birth

certificate listing each of them as the child’s “mother.”

However, the legal significance of the birth certificate

is limited, as explained above; it does not constitute

conclusive evidence of legal parenthood in an Idaho

court. The court below acknowledged that Obergefell

required it to read the AIA in a gender-neutral manner.

Pet. App. 11a. It applied Idaho Code § 73-114(1)(b) to

do so, and found there was no equal protection concern

because the AIA applied to opposite-sex couples and

same-sex couples in the exact same manner. Id.

2. Petitioner argues that she has had burdens

generally inapplicable to opposite-sex couples placed on

her. Pet. 2. For example, she argues that “married,

opposite-sex couples are not generally required to allow

physicians to select biological fathers of their children.”

Pet. 11. Of course, the AIA does not apply to oppositesex couples who do not use artificial insemination. It

applies no burdens to such couples and affords them no

benefits. But the plain language of the AIA and the

16

opinion of the court below make clear that a married,

opposite-sex couple is required to comply with the

provisions of section 39-5402 concerning donor

selection and physician performance of artificial

insemination, along with all of the other requirements

of the AIA, in order for the husband to obtain the result

provided in section 39-5405(3). In fact, when it was

enacted in 1982, the AIA could only have applied to

opposite-sex couples because same-sex marriage was

not then recognized.

Petitioner has failed to adduce evidence of any

married opposite-sex couple where the father was

determined to be a legal parent of a child conceived by

artificial insemination using donor sperm when that

couple had not complied with the AIA. This is

Petitioner’s burden in an equal protection challenge

and she has failed to meet it. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). She has

also not established evidence of discriminatory intent,

as the trial court, the district court and the court below

all agreed that the AIA must be applied similarly to

same-sex and opposite-sex couples. Pet. App. 11a, 99a.

3. Petitioner’s argument that the AIA “prevents

half of the same sex-couples (those with two men) from

obtaining parental rights via artificial insemination”

(Pet. 26) is irrelevant, since Linsay was not in a samesex male relationship. While a male same-sex couple

has the ingredient which is typically donated in an

artificial insemination—the semen—they lack an egg

and a uterus. What they require is gestational

surrogacy, which is a reproductive procedure not

governed or covered by the AIA.

17

4. Petitioner’s argument at Part 3 at Pet. 15-18

misses the point. As the court below held, the AIA was

enacted by the legislature to provide stability, certainty

and defined relationships and consequences among the

participants in the artificial insemination process. If

the statutory scheme is properly followed, the donor

and resulting child have no legal rights or obligations

between them, and the spouse is determined to be the

legal parent of the child. The AIA was also designed to

avoid the transmission of acquired immunodeficiency

disease and to ensure that semen donors do not have

venereal or other diseases or genetically transmitted

defects. It was designed to ensure that a medical

procedure is performed only by qualified persons in a

safe manner. The legislative purpose was to expand

and solidify parental rights in a previously uncertain

area, not to strip away the rights of anyone seeking to

conceive a child by artificial insemination. The price of

those benefits is compliance with the requirements of

the AIA.

5. Petitioner argues that this Court’s review is

warranted based upon the statements made by one

justice in dissent. Pet. 34-35. But the dissent’s

comments were not shared by the four-member

majority of the court below, all of whom joined in the

opinion. The dissent’s analysis and predictions of the

consequences of this decision may prove to be

inaccurate. And the dire consequences predicted by the

dissenting justice only occur when parties to an

artificial insemination do not follow the provisions of

the AIA. After 42 years, this is the first and only case

to reach the court below on that issue. The point made

by the majority is this: It is the province of the

18

legislature to make law, and it is the province of the

court to interpret and apply the law as written.

6. Petitioner’s argument that review is appropriate

based upon the alleged choice facing a parent in an

abusive same-sex marriage—stay in the marriage or

end the relationship and risk forfeiting all rights to

your child—is a false dichotomy. Same-sex and

opposite-sex couples are equally capable of both

complying with the AIA and seeking the protections of

Idaho’s divorce and domestic violence laws when

appropriate.

C. The Idaho Supreme Court’s Decision Does Not

Conflict with this Court’s Due Process Cases

While the Court’s substantive due process cases

afford great weight to the protection of the family and

the upbringing of children, Meyer v. Nebraska, 262 U.S.

390 (1923), at its core this case presents a different

question: Who is a parent and how is parenthood

determined? None of the Court’s precedents establishes

a constitutional right to a prescribed method of

determining parenthood.

In fact, Petitioner seems confused about the method

of determining parenthood she would ask the Court to

adopt. Petitioner describes the question presented as

whether same-sex married couples have a right to

participate in the care, custody and control of children

they “agree” to conceive and raise from birth. Pet. i.

Elsewhere Petitioner says she seeks to vindicate the

constitutional rights of married same-sex couples who

“resolve” to have children and raise those children

together. Pet. 1. Still elsewhere Petitioner speaks of the

19

fundamental right of spouses in same-sex marriages to

have custody of children “conceived and raised” during

the marriage (Pet. 3) or “conceived and born” during

the marriage (Pet. 11).

If the Court were to find that the liberty interests

protected by the due process clause include the right of

a spouse who is not biologically related to a child to be

deemed a legal parent, it would also fall to the Court to

determine the contours of that liberty interest. Is this

fundamental right of parenthood secured simply by

virtue of being married to the birth mother? If so,

when? At the time of conception, birth or both? Such a

rule would merely return us to the days when the

common-law marital presumption was conclusive. This

would foreclose the rights of biological fathers who are

not married to their children’s birth mothers but wish

to assume the rights and responsibilities of parenthood,

even when the child is born into an intact marriage.

Such a rule would also force non-biologically related

spouses into assuming the burdens of parenthood,

whether or not they consented to their wives’ decisions

to become pregnant.

So such a liberty interest—if it exists—must depend

on the consent of the non-biologically related spouse to

the pregnancy. But this only begs further questions:

When must consent be given—before conception, before

birth, or some time afterward? Must consent be

written, or can it be evidenced by actions? May consent

be implied? May it be withdrawn? More importantly,

who is to answer these questions—the unelected

justices of this Court or the legislative bodies of the

various states? With respect, Respondent believes that

20

the answers to these questions are not found in the

Constitution because the claimed liberty interest does

not exist.

As a case in point, Petitioner cites to Michael H. v.

Gerald D., 491 U.S. 110 (1989), where a biological

father claimed that his genetic relationship entitled

him to displace the mother’s husband as the “father” of

the child. The Court rejected this claim, upholding a

California statute stating that a child born to a married

woman living with her husband is presumed, with

limited exceptions, to be a child of the marriage. The

Court said, “It is a question of legislative policy, and

not constitutional law, whether California will allow

the presumed parenthood of a couple desiring to retain

a child conceived within and born into their marriage

to be rebutted.” Id. at 129. Thus, California’s nearconclusive presumption of paternity was upheld, but

not as a matter of constitutional law. These are areas

where states differ, and Idaho’s stance does, in fact,

differ. Idaho’s common-law marital presumption is

rebuttable by clear and convincing evidence. Alber, 472

P.3d 321 at 326-327 (Idaho 1970). As the Court said in

Michael H., this is a matter of legislative policy and not

constitutional law. The methods set out by the Idaho

legislature for determining parenthood are

constitutionally sound and must be respected.

D. The Idaho Supreme Court’s Decision Does Not

Conflict with the Decisions of Other State

Courts

The Idaho Supreme Court’s decision in this case

does not conflict with the decisions of other state courts

cited in the Petition. Pet. 29-33.

21

1. Contrary to Petitioner’s claim, the Washington

Supreme Court in In Re Parentage of L.B., 122 P.3d

161, 177 (Wash. 2005), did not recognize that a

biological mother’s former partner stood as a de facto

parent to the child (Pet. 29) and that both the biological

and non-biological parent had a fundamental liberty

interest in the care, custody and control of the child

(Pet. 30). It simply remanded the case to allow the

claimant the opportunity to establish her status as a de

facto parent. Id. at 163. The Washington court found

that its common law recognized de facto parents, holds

them in legal parity with biological and adoptive

parents, and authorizes a court to award parental

rights to de facto parents if it is in the best interests of

the child. Id. at 177. The case did not involve the

application of Washington’s Uniform Parenting Act

(“UPA”), since the trial court found the domestic

partner did not have standing to assert a claim under

the UPA, id. at 165-166, just as the court below found

that Petitioner did not have standing under the AIA

since she had not complied with the requirements of

the AIA.

2. In Smith v. Guest, 16 A.3d 920 (Del. 2011)

(“Smith II”), a non-adoptive partner in a same-sex

couple petitioned for custody as a de facto parent under

the Delaware Uniform Parenting Act (“DUPA”). She

had previously been denied custody, since a de facto

parent was not included in the definition of “parent” in

the statute. Smith v. Gordon, 968 A.2d 1 (Del. 2009)

(“Smith I”). Following Smith I, the General Assembly

amended DUPA to include a de facto parent within the

definition of “parent,” providing that the amendment

would apply retroactively. Smith II at 923-924. In

22

Smith II, the trial court granted custody to the nonadoptive partner based upon the amendment of DUPA,

a decision that was affirmed by the Delaware Supreme

Court. Id. at 923-924. In both Smith I and Smith II, the

Delaware Supreme Court was required to construe and

apply statutes enacted by the legislature, as did the

court below with respect to the AIA. Both the Delaware

and Idaho courts determined that where the legislature

has enacted a comprehensive statutory scheme that

reflects an unambiguous public policy, the judiciary’s

role is to give full meaning and effect to the statutes so

enacted. Id. at 924, 936; Pet. App. 16a, 19a.

3. In Rosemarie P. v. Kelly B., 2021 WL 4697719

(Alaska Oct. 8, 2021), the Alaska Supreme Court

affirmed the decision of the trial court declaring the

non-biologically related partner in a same-sex couple to

be a psychological parent of the child and awarding the

psychological parent joint legal and physical custody.

Id. at *4. The court held that in light of a biologically

related parent’s constitutional right to custody, a

person seeking standing as a psychological parent must

prove by clear and convincing evidence “either ‘that the

parent is unfit or that the welfare of the child requires

the child to be in the custody of the [third party].” Id.

(Citation omitted). To prove that third-party custody is

required, there must be a showing that the child would

suffer clear detriment if placed in the sole custody of

the parent. Id. If the necessary showings are made, the

psychological parent is entitled to a trial, with custody

determined based on the best interests of the child. Id.

at *3. The Alaska court noted that the trial court

analyzed the statutory best-interests-of-the-child

23

factors and made detailed, well-supported factual

findings related to each factor. Id.

4. In V.C. v. M.J.B.,748 A.2d 539 (N.J. 2000), cert.

denied, 631 U.S. 926 (2000), the New Jersey Supreme

Court interpreted N.J.S.A. 9:2-13(f), which provides

that “[t]he word ‘parent,’ when not otherwise described

by the context, means a natural parent or parent by

previous adoption,” id. at 547, as giving it jurisdiction

to consider whether persons other than natural or

adoptive parents might qualify to have custody or

visitation with a child. Id. at 548. The court went on to

decide that the non-biological, non-adoptive claimant

had standing to maintain an action for custody and

visitation separate and apart from the statute based on

her claim to be a psychological parent, id. at 550,

adopting a four-part test set out in Custody of H.S.H.K., 533 N.W. 2d 419, 421 (Wis. 1995). Id. at 551-552.

The court affirmed the appellate division holding that

the non-biological, non-adoptive parent had met the

burden to establish her status as a psychological

parent. The court did not award her joint legal or

physical custody, but did award her continued

visitation with the children. Id. at 555.

5. In Kulstad v. Maniaci, 220 P.3d 595 (Mt. 2009),

the Montana Supreme Court utilized Montana’s

nonparental statutory framework to uphold a trial

court award of a parental interest to someone who was

not related to the children biologically or through

adoption, against the wishes of the adoptive parent. Id.

at 530-534. The court held that Montana’s nonparental

statutory framework requires the nonparent to

establish, by clear and convincing evidence, that the

24

natural or adoptive parent has engaged in conduct

contrary to the parent-child relationship and that the

nonparent has established a child-parent relationship

as defined in the statute. Section 40-4-228(2)(a)-(b); id.

at 606. If this burden is met, the court proceeds to

determine whether or not it is in the child’s best

interests to continue that relationship. Section 40-4228(2)(a)-(b); id. at 530. Although Idaho has its own

nonparental statutory framework, The De Facto

Custodian Act, Idaho Code §§ 32-1701-1705, the

Petitioner did not meet the statutory criteria, which

require the applicant to be related to a child within the

third degree of consanguinity. Of particular note in this

case is the comprehensive analysis of Montana’s

nonparental statutory framework in light of the

constitutional challenges to the statute by the adoptive

parent. The court recognized that it was a legislative

policy choice to enact a comprehensive nonparental

statutory framework, and that it was the duty of the

court to uphold and apply the statute, as written and

as a whole, giving effect to all its provisions, unless the

adoptive parent proved that the challenged statutes

unconstitutionally infringed on her right to parent her

children. Id. at 602-609. This is the same process used

by the court below in this case in its analysis of Idaho’s

AIA. Pet. App. 8a-22a.

6. In re Parentage of M.F., 475 P.3d 642 (Kan.

2020), is a case brought under the Kansas Parenting

Act (“KPA”) by the non-biologically related parent to

seek custody of a child born during a same-sex

relationship. Petitioner mischaracterizes the holding of

the Kansas Supreme Court. Pet. 32. Section 232208(a)(4) of the Kansas Statutes Annotated provides

25

a presumption of paternity (maternity) where a man

(woman) “notoriously or in writing recognizes paternity

of the child . . .” so it is clear the court was focused on

the activities of the non-biological partner, not the

biological mother. Id. at 659-660. The court did not hold

that such proof established parental rights in the nonbiological partner; it simply provided standing to

proceed with her claim for custody. Id. at 659-660. The

court ultimately held that the trial court erred by

failing to apply the correct legal standards and

remanded the case for further proceedings. Id. at 662.

Significantly, the Kansas Supreme Court used

K.S.A. 23-2220 to apply the Kansas statutory

presumptions of paternity—which speak of a “man”

who is presumed to be the “father”—equally to mothers

and maternity. Id. at 651. This is the same type of

statutory construction used by the court below when it

applied Idaho Code § 73-114(1)(b) to read Idaho’s AIA

in a gender-neutral manner.

7. In Boseman v. Jarrell, 704 S.E.3d 494 (N.C.

2010), a same-sex female couple conceived a child

through artificial insemination. The non-biological

partner attempted to adopt the child; however, the

adoption decree did not comply with the statutory

requirement that an adoption decree sever the

relationship of parent and child between the individual

adopted and that individual’s biological or previous

adoptive parents. N.C.G.S. § 48-1-106(c); id. at 539-540.

After the parties’ breakup, the adoptive parent sought

custody of the child, and the biological mother

responded that the adoptive parent did not have

standing to seek custody because the adoption decree

26

was void. Id. at 498. The trial court concluded that it

did not have authority to void the adoption decree,

found that the adoptive parent was a legal parent, and

awarded biological mother and adoptive mother joint

legal custody under the best-interests-of-the-child

standard. On appeal, the North Carolina Supreme

Court determined that the adoption decree was void.

Id. at 547. In doing so, the court applied substantially

the same statutory analysis as the court below in this

case applied to its review and analysis of the Idaho

AIA. Pet. App. 8a-22a. The North Carolina court found

the adoption statute to be clear and unambiguous as

written and gave the statute its plain and ordinary

meaning without interpolating or superimposing

provisions or limitations not contained in the statute,

noting that this is especially important in the context

of adoptions, which are purely a creation of statute. Id.

at 545. The court ultimately upheld the trial court’s

alternative analysis that adoptive parent had thirdparty standing to assert her custody claims, and

affirmed the trial court’s decision to award the parties

joint custody of the child based on the best-interests-ofthe-child standard. Id. at 549-553.

8. In Brooke S.B. v. Elizabeth A.C.C., 61 N.E. 3d

488 (N.Y. 2016), the New York Court of Appeals

overturned its prior ruling in Matter of Alison D. v.

Virginia M., 572 N.E.2d 27 (N.Y. 1991), which had held

that, in an unmarried couple, a partner without a

biological or adoptive relation to the child is not a

child’s parent for purposes of standing to seek custody

or visitation under New York’s Domestic Relations Law

§70(a). Id. at 490. The statute itself does not define the

term “parent.” In Brooke S.B., the Court of Appeals

27

held that petitioners’ claims that the parties had

entered into a pre-conception agreement to conceive

and raise a child together, if proven by clear and

convincing evidence, would be sufficient to give

standing to pursue a claim for custody or visitation. Id.

at 500. The court stressed that its decision addressed

only the ability of a person to establish standing as a

parent to petition for custody and visitation, and

cautioned that “the ultimate determination of whether

those rights shall be granted rests in the sound

discretion of the court, which will determine the best

interests of the child.” Id. at 501.

9. In Eldredge v. Taylor, 339 P.3d 888 (Okla. 2014),

the Oklahoma Supreme Court held that written coparenting agreements entered into between a biological

mother and her domestic partner with respect to

children born during the relationship did not violate

Oklahoma law or public policy and were legal and

enforceable. Id. at 893. The court did not consider

biological mother’s contentions that the agreements

violated Oklahoma’s parentage and artificial

insemination acts because biological mother did not

cite to specific provisions of those laws or submit

supporting authority to the court. The court found that

the public policy of Oklahoma requires a trial court to

consider the best interests of the children before they

lose one of their only two parents, and reversed the

decision of the district court granting the motion to

dismiss. In so doing, the court limited its holding to the

unique and compelling facts before the court. Id. at

895.

28

10. In Mullins v. Picklesimer, 317 S.W. 3d 569 (Ky.

2010), the Kentucky Supreme Court concluded that a

biological mother’s former same-sex partner did not

qualify as a de facto custodian under Kentucky’s

statute, because the statute required a person to be the

primary caregiver and financial supporter of a child for

the statutory period of time. Id. at 574. However, the

court went on to apply a line of cases which provided

that a non-parent who could not qualify as a de facto

custodian could pursue a custody claim upon

proving—by clear and convincing evidence—one of two

exceptions to the parent’s superior right to custody: (i)

that the parent is an unfit custodian; or (ii) that the

parent has waived his or her superior right to custody.

Id. at 578, citing Moore v. Assente, 110 S.W.3d 336, 359

(Ky. 2003). Finding that a waiver had occurred, the

court reinstated the decision of the trial court granting

the parties joint custody of the child. Id. at 579.

11. D.M.T. v. T.M.H., 129 So.3d 320 (Fla. 2013),

involved the donation of an egg which was fertilized in

vitro and implanted in the egg donor’s same-sex

partner, who then gave birth to the child. A Florida

statutory scheme regulates such proceedings. Id. at

329-330. After the parties’ relationship ended, the egg

donor filed for custody of the child, which the trial

court denied because Florida’s statutory scheme

automatically terminates an egg donor’s potential

parental rights at the time of the donation. Id. at 330.

The Florida Supreme Court invalidated the statutes as

violations of due process under both the Florida and

United States Constitution, as well as Florida’s

constitutional privacy rights, because they deprive a

biological mother of parental rights where she was an

29

intended parent and actually established a relationship

with the child. Id. at 347. The court also invalidated

the statutes as equal protection violations under the

Florida and United States Constitutions in providing

exceptions for relinquishment of parental rights for egg

and sperm donors who are part of an opposite-sex

couple, but not for those who are part of a same-sex

couple. Id. at 347. This issue is irrelevant to the case at

bar. Petitioner is not a biological parent of the child

born during her marriage. And the court’s equal

protection analysis is based upon provisions of the

Florida statute relating to semen, egg and oocyte

donation which are not found in the Idaho AIA or any

Idaho statute. Moreover, the court below construed and

applied Idaho’s AIA in a gender-neutral, sexualorientation-neutral fashion, so the improper

classification problem does not exist in this case.

None of these cases involves the application and

interpretation of an artificial insemination statute. The

cases show state courts applying varied statutory

schemes and common-law principles—such as de facto

parent, psychological parent and third-party

standing—to unique, individualized fact patterns.

Where a statute is involved, the state courts uniformly

apply the canons of statutory interpretation applied by

the court below to Idaho’s AIA: considering the statute

as a whole and not reading provisions in isolation;

giving words their plain, usual and ordinary meanings;

giving effect to all words and provisions of a statute so

that none will be void, superfluous or redundant; and

interpreting statutes so as to uphold their

constitutionality whenever possible. Pet. App. 16a-17a.

Where common-law principles are involved, the cases

30

generally allow persons who are not biologically related

to a child the chance to obtain legal parenthood by

making a required showing (e.g., that the natural

parent is unfit, that the welfare of the child requires

third-party custody or that the natural parent has

engaged in conduct contrary to the parent-child

relationship) and proving in trial that such is in the

best interests of the child. This is exactly what the

magistrate court did in the case below. She applied

Idaho’s common-law Stockwell standard, which

requires a showing that the child has been in the

custody of a third party for an “appreciable period of

time.” Pet. App. 79a-88a. Even though the magistrate

ruled that the showing had not been made, she

proceeded to apply the best-interests-of-the-child

analysis and determined on the basis of evidence

presented in a three-day trial that it was not in the

child’s best interest for Petitioner to have custody of

her. Pet. App. 88a-91a.

The fact that child custody may have been decided

differently in this case than in some of the cases cited

above does not create a conflict which warrants this

Court’s intervention. And the fact that states are using

different paths to analyze and decide these cases shows

that they are not capable of being resolved by a simple,

bright-line rule imposed by this Court.

E. The Opinion Below Will Have a Limited

Impact and a Proposed Remedy Is Not Readily

Apparent

1. As the court below noted in its opinion, the

Petitioner raised legal issues that were a matter of first

impression in Idaho. Pet. App. 30a. In point of fact,

31

since the AIA was enacted in 1982, there have only

been two reported decisions concerning the act: this

case; and the case of Doe v. Doe, 395 P.3d 1287 (Idaho

2017). In Doe, the Idaho Supreme Court affirmed the

lower court’s dismissal of petitioner’s claims of

parentage based upon the AIA, holding that the plain

language of the statute does not address a child

conceived by artificial insemination to an unmarried

couple. Id. at 1291. The decision below has not been

cited in any reported cases since it was handed down.

2. Idaho’s AIA is different from the artificial

insemination statutes in other states. Therefore, the

decision of the court below is unlikely to affect the

interpretation or application of artificial insemination

statutes in other states.

3. Idaho’s AIA affects only those who use artificial

insemination in Idaho. Idaho is a sparsely populated

state with fewer than 2 million inhabitants.2 It is likely

that only a small percentage of that population uses

artificial insemination.

4. If the Court reviews this case, and the decision

of the court below is reversed, it is unclear that there is

a remedy for the Petitioner. Petitioner fully

participated in a three-day trial in the magistrate

court, and was provided the opportunity to submit

evidence supporting her claims to child custody.

Despite finding that Petitioner lacked standing to

pursue a custody claim under all legal theories raised,

2

As of July 1, 2021, Idaho’s estimated population is 1,900,923

according to the United States Census Bureau.

32

the trial court nevertheless engaged in a

comprehensive best- interests-of-the-child analysis and

found, based upon the factors set forth in Idaho Code

§ 32-717, that it was not in the child’s best interest for

Petitioner to have legal custody, physical custody or

visitation with the child.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

MICHAEL J. DOOLITTLE

Counsel of Record

MICHAEL DOOLITTLE PC

2312 N. Cole Road, Suite E

Boise, Idaho 83704

(208) 639-1845

michael@michaeldoolittlepc.com

Counsel for Respondent

April 5, 2022