Appellate Court Hears Argument in Louisiana Birth Certificate Case

A while back I commented on a Louisiana case in which two adoptive gay parents sought a new birth certificate for their son.   I’ll do a brief summary of the case, but I just wanted to note that the case was argued today. (I just updated to add a later version of the story.)  I cannot find much detail about the argument, but it does remind me that it is out there.   It’s worth paying attention to because it might tell us something about the portability of parenthood or perhaps legal significance of birth certificates.    

So here’s the summary:  Oren Adar and Mickey Ray Smith both adopted the child, I think in New York, which permits gay couples to jointly adopt.    The child was born in Louisiana, which does not permit two unmarried people to adopt.    Since the child was born in Louisiana, the child has a Louisiana birth certificate.   Adar and Smith sought to have a new birth certificate issues–one that reflected their status as parents.  

The Wrong Embryo, II: An Afterthought

This picks up from yesterday’s post–read that first.  

Consider the position of the hospital when Carolyn Savage gives birth.   The hospital is obliged to prepare a certificate of live birth.   Suppose there is a blank for “mother” on the birth certificate.  What name should go in that blank?    

I am fairly sure that the ordinary practice is to fill in the name of the woman who just gave birth.   If  the Savages want to put some other name on the certificate (like the name of the woman whose egg was used and who will parent the child), should the hospital let them do that?   Should it require them to produce some sort of document instructing it (the hospital) to do so or should it just take any name they offered?   

News in Brief: Lesbian Mothers Gain Further Recognition in the UK

The UK has adopted regulations that allow the lesbian partner of a woman who gives birth following ART to be recognized as a parent from the time of birth.  This is quite similar to the standard enacted by statute in DC and by case law in Oregon.  

The general idea in all these instances is the same.   If a married heterosexual couple used ART in order for the woman to become pregnant, the husband would be legally recognized as a parent of the resulting child.   This is not because we would assume that he was genetically related to the child.   Given the use of ART, it’s quite likely that would not be true.   (There is a presumption that when any married woman gives birth her husband is the father, but this can typically be overcome by DNA testing.)  

Anyway, as I discussed last week the ART presumption is more specialized. 

A Recent Louisiana Case and the Power of Adoption

There’s a case–not such a recent case, but one just came to light thanks to Professor Art Leonard’s watchful eyes–out of Louisiana that confirms an important point about the portability of adoption.    Professor Leonard’s post includes a good summary of the facts.  You can also read the full opinion.   It’s quite long.  

After being together as a couple for 17 years, June Mire and Angela Palazzolo decided to have a child.   When Palazzolo did not become pregnant via assisted insemination, Mire did.   She gave birth to a daughter, IP,  in January 1997.

While the couple had met in Louisiana and the eventual case is a Louisiana case, at the time of the insemination and birth, the couple lived in California.   Consistent with California law, Palazzolo completed a second-parent adoption in 1997.

DC Lesbian Mother Law Enacted

A new law has taken effect in our nation’s capitol–one which establishes  lesbian motherhood in a way analogous to that in the recent Oregon case I’ve discussedat some length.   The law is noteworthy as it is the first of it’s kind.  It’s the result of long labor by a wide-range of people and organizations, among them the inimitable Professor Nancy Polikoff and the National Center for Lesbian Rights.  Unsurprisingly, you can find a useful discussion of the new law on Professor Polikoff’s blog.  

The new law accomplishes by legislation what the Oregon case did by judicial reasoning:   The law provides that when a person (note gender neutrality as this is critical) consents to the insemination of a woman, with the intention of being a parent to the resulting child, the person is a legal parent of that child.   Put more concretely, when a lesbian couple plans to have a child using assisted insemination, the child that results will be recognized in law as the child of both women.  

Louisiana Birth Certificate Update

The process of legislation is indeed long, but the Louisiana birth certificate legislation I’ve been following is nearing the end of that road.   a brief recap, to bring you up to speed. 

This story begins when a gay male couple adopted a child who happened to have been born in Louisiana.   Oren Adar and Mickey Ray Smith completed their adoption in New York, which permits two men to adopt a child.  Having finished the procedure they were, in the eyes of the law, the legal parents of their son.   Because of the Full Faith and Credit Clause, that status–gained via a court order–must be recognized by other states.   (A recent opinion from Florida confirms this.) 

Adar and Smith want a new birth certificate for their child, one that reflects their status as legal parents.   This is an ordinary post-adoption request.  Since the child was born in Louisiana, the new birth certificate would have to be issued in Louisiana.   Louisiana undoubtedly does this routinely in most cases. 

But while Louisiana is obliged to recognize the adoption, it would not itself permit two men to adopt. 

Louisiana Birth Certificate Bill Passes State House

For some time now I’ve been following the progress of one particular piece of legislation in Louisiana.    I’ll give a short version here, or you can follow the links.

The bill in question was spurred by a case involving two men–a gay male couple–who had adopted a child together.   They completed their adoption in NY, but the child was born in Louisiana and therefore has a Louisiana birth certificate.

The couple asked Louisiana to issue a new birth certificate with both their names on it.  (This is standard procedure in cases of adoption.)   Louisiana refused, asserting that it would not recognize an adoption by an unmarried couple.  (Unmarried couples are not allowed to adopt in Louisiana.)   The couple sued.  They won in the district court, but that victory has been stayed pending appeal.

This is the point at which the legislature decided to get into the act.   HR 60 provides that Louisiana will not issue birth certificates in cases of adoption unless the adoption itself would be lawful in Louisiana.  Since unmarried couples cannot adopt in Louisiana, the legislation prevents issuance of a birth certificate.

It’s not at all clear to me that the legislation adds anything to the state’s case.  But for the record, it passed the Louisiana House of Representatives today.   (It’s noted about half-way down the page I linked to.)  The Florida case decided earlier today does strongly suggest that the Louisiana will have to give full faith and credit to an adoption properly completed in another state.

More on Louisiana Birth Certificate

As I discussed yesterday, the Louisiana legislature is considering a bill (HB 60) that would prohibit Louisiana from issuing a birth certificate listing anyone not qualified to adopt in Louisiana as a parent.   The impetus for this effort is a law suit by two gay men who have jointly adopted a child in New York State.

The adoption is perfectly proper under New York law, but the child in question was born in Louisiana.  Therefore, the new parents sought a new birth certificate from Louisiana listing their names.

The thing is, in Louisiana only a married couple or a single person can adopt.  No unmarried couples.  And no same-sex couples can be married, in the view of Louisiana.  (The Constitution of the state restricts marriage to one man/one woman and out of state marriages that do not comport with this arrangement are not recognized.)  Hence, the two men are not qualified under Louisiana law to adopt as a couple.

Lots that’s interesting here and much of it I’ve already discussed.  I remain fascinated by a scheme that allows single people (including lesbians and gay men) to adopt, but prohibits couples from adopting unless they are married.

Louisiana Birth Certificate Update

There’s a Louisiana case I’ve been following in which two gay men who had properly adopted a child in New York wanted a birth certificate that listed both of their names.   The problem is that the child was born in Louisiana and Louisiana would not have allowed the two men to adopt.   Since the child was born in Louisiana, only Louisiana could issue a birth certificate.

As that earlier post recounts, the men have had success in court, although the order in their favor was stayed.   The lawyer for the state suggested at that time that he’d seek legislation on the matter.

Well, here’s the legislation.   It’s HB 60 and it had a committee hearing in the Louisiana legislature today.   (I cannot tell what happened at the hearing–perhaps it isn’t posted yet.)   The bill provides that the state will not issue a birth certificate to an adoptive couple unless the couple would have qualified for adoption in Louisiana.

Gay Father Entitled to Social Security for Kids

This is one of those cases that really shouldn’t be a case at all.   It’s also an instance where being legally recognized as a parent is critical.   Plus it shows something about the current situation of lesbian and gay parents.  All reason to note it here.   The case was litigated by Lambda Legal Defense and Education Fund and you can find both a press release and the actual complaint on Lambda’s website.

Gary Day has two children.   There’s a boy (identified as “CDG”) born in 2000 and a girl (“EDG”) born in 2003.   The most critical fact is actually lurking in the first sentence of this paragraph, though you could certainly miss it.   Day is unquestionably the legal parent of both of these children.

Note that I wrote “Day has two children.”    That’s actually a tad ambiguous, even though it is a common enough usage.   The thing is, common usage doesn’t tell you legal status.   What does it mean to “have” children.  Sometimes we mean a person gave birth to a child.  Sometimes we mean that the person occupies the role of parent in the child’s life.  In this case, Day doesn’t simply occupy the role.  He has legal recognition as a parent of these children.