For several years (time does fly) I’ve been following an Iowa case challenging the state’s refusal to issue a birth certificate listing the names of both married women when one woman gives birth. As you’ll see if you read through the posts I just linked to, the case is something of a follow-on to the Iowa litigation that resulted in access to marriage for same-sex couples in Iowa.
The Iowa Supreme Court has now issued its decision. It determined that the state must issue the birth certificate listing both women’s names. Of course this brings up the whole birth certificate debate and the reasoning of the court is interesting in that larger context, too. (If you look under the tag you’ll find a lot of posts about birth certificates and what they should or do say and mean.)
For those who don’t want to read through the opinion and/or the earlier string of posts, it’s worth noting a couple of key features here that are really woven into the facts of the case. First, Iowa allows adoption, including what is called “second-parent adoption.” This means that when Heather and Melissa Gartner (the plaintiff couple in the case) had their first child, born before Iowa allowed them to marry, Melissa could adopt the child that Heather gave birth to. At the end of the day they were both legal parents of that child. (FWIW, the child was conceived using sperm from an anonymous provider.) Once the adoption was complete, the state issued a new birth certificate for the child–one that listed both women as parents.
I know that to some people listing adoptive parents on a birth certificate strikes many people as bizarre and fraudulent. After all, they didn’t give birth. But it’s standard practice throughout the US. As I’ve said many times, birth certificates are strange documents and the designation of “parent” on a birth certificate is not a statement of historical fact. (Other things, like time of birth, are.) Instead, designation as “parent” on a birth certificate is often used as proof that the person is in fact a legal parent. So for instance, to prove that I am the person who has the right to enroll my child in school or in soccer, I produce the birth certificate where I am listed as “parent.”
This could be changed. Maybe it should be changed. Maybe we should all have “legal parentage certificates.” But for the moment, we use birth certificates to prove legal parentage. This is the way things are and you just need to go with it to understand the rest of the opinion and the rest of this post.
Anyway, the Gartners had a second child a few years later. Heather also gave birth to this child, who was also conceived with sperm from an anonymous provider. By the time the second child was born, Heather and Melissa Gartner were married. And this brings me to my second key feature.
Iowa has a presumption of parentage that applies to married couples. This is discussed starting on page 11 in the opinion. Handily enough, footnote 1 (also beginning on page 11) catalogs similar state statutes from dozens of other states, sorting them into three categories. (I have not counted and it may be that not all fifty states have statutes, but I’m not aware of any state that doesn’t have some version of the presumption.) In its traditional form the presumption provides that when a married woman gives birth to a child, her husband is presumed to be the legal father of the child. This means, among other things, he is automatically listed on the birth certificate. He doesn’t have to adopt the child. And that’s the way the Iowa statute worked. As the very extensive footnote makes clear, some versions of the statutes are gender neutral, but Iowa’s is not.
There’s lots to say (and lots that been said) about this presumption and how it operates. Professor Nancy Polikoff has an excellent discussion of this case on her blog. But I’m going to go on ahead here.
The Gartners sought to employ the presumption so that Melissa would not have to adopt the second child to get listed on the birth certificate. The Department of Public Health refused to do so and the litigation followed.
It seems to me that the Department had a very weak position from the beginning. It was agreed that if a heterosexual couple used sperm from an anonymous provider the husband could employ the presumption. Thus, the presumption isn’t about genetic connection. As the Iowa Court notes on page 15
The presumption counteracts the stigma by protecting the integrity of the marital family, even when a biological connection is not present.
How, then, does the state justify treating a man married to a woman differently from a woman married to a woman? It’s not surprising to me that the Iowa Court concludes that the differential treatment cannot be justified.
Starting on page 24 you can find the discussion of the three rationales offered by the state. It’s not hard to see what’s wrong with the reasons offered. For instance, the Department suggests it has an interest in “accurate birth records”–by which I think they mean records that actually identify the genetic parents of the child. It’s a bit hard, however, to make this claim when they’d issue a birth certificate to the very same people if they just went through a formal adoption proceeding. Or to a couple where the non-birthing spouse happened to be male. As the court observes, this doesn’t make the birth certificate any more “accurate.”
I think the opinion is worth taking the time to read because it is clearly written and covers several topics that come up with some regularity here. It’s also, to my mind, an opinion that reaches the right result. No matter what you think about what we ought to put on birth certificates, it seems only fair that the Gartners’ entitlement is the same as any other married couple in Iowa.