Quick Update: Louisiana to Appeal Birth Certificate Case

A few days ago I wrote about a case I’ve been following for a while now–one in which two gay men adopted a child who had been born in Louisiana and then sought a new birth certificate with both their names on it.   (Louisiana would not have permitted such an adoption, but New York did.)   As I noted, the Fifth Circuit released a unanimous opinion, concluding that Louisiana had to issue the birth certificate. 

According to this report, the state plans to appeal.   The initial effort will be to seek rehearing before the entire Fifth Circuit rather than simply a three judge panel.  It seems to me fairly unlikely to succeed, but of course, we’ll have to wait and see.

15 responses to “Quick Update: Louisiana to Appeal Birth Certificate Case

  1. Hmmm, federal intervention in family matters does seem fundamentally wrong. I know that it’s in the absolutely sacred cause of gay rights – but even considering the hallowed nature of the cause, I do think Louisiana has a big point. This is not about full faith and credit – they’re not reversing the adoption merely saying that they will not change an accurate record of birth. I wish all states insisted on accurate records of birth.

    • Louisiana could generally refuse to issue new birth certificates upon completion of adoptions with no problems. It has chosen, however, to issue new birth certificates. That said, what it cannot do is treat people who complete their adoptions in a sister state differently from people who complete their adoptions inside Louisiana.

      All the Full Faith and Credit Clause guarantees is that level of even-handed treatment. You can understand this as striking a balance between allowing states their independence but also recognizing that each state is part of a single country.

      So this does not address the underlying question of what sorts of records ought to be kept.

  2. If the adoption took place in New York , why can’t New York issue a new birth certificate? It doesn’t make sense that the place of birth is less alterable that the persons.

    • I totally see your point, but it just doesn’t work that way.

      The place of birth is treated as a historical fact and cannot be changed. A new state cannot issue the new birth certificate. (I suppose New York could devise some new “certificate of adoption” and issue that.) Similarly the time of birth cannot be changed, although I suppose mistakes can be corrected.

      The identity of the parents, however, is typically subject to revision. The usual expectation is that the birth certificate will show the legal parents of the child, which changes upon completion of an adoption.

      I realize this will make many folks unhappy, and I’m not defending the choices that have been made that lead to this curious state of affairs. I’m just describing it.

      If the entire birth certificate were understood to document historical fact, I suppose it would include the name of the woman who gave birth and only her name.

  3. Good point Kisarita, I’m forecasting in the near future that a person will have a birth certificate stating that a girl was born to Joan and Robert in San Diego when in fact a boy was born to Nicola and William in Kansas City. I’m seeing it clearly in my crystal ball, the she is a trans-sexual male who was adopted interstate.

    • Unlikely, if only because there’s no prospect of changing the location of the birth. The rest happens now.

      (The birth gender question is a whole other issue, by the way, worthy of discussion, but not here, not now.)

  4. Why can’t the location of the birth be changed? If that is where the new parents were located at the time of the birth, surely it makes most sense to change the location because if they are to be presumed to have given birth to the child, the location of the birth of the child needs to be consistent with the fiction.

    • No state I know of will alter place of birth or date/time of birth or birth weight. Some states will alter the sex listed on the birth certificate and some will not. And most, perhaps all, states will issue a new birth certificate for a child upon completion of an adoption.

      Perhaps this is because time/place and weight are viewed as unchanging truths–this child was born at a particular time and in a particular place. For some, sex is in that category, too, and so it cannot be changed. Others see sex as more malleable and so it follows that it can be changed.

      To the extent the birth certificate is used to show the legal parents of the child, this is changeable–that’s what adoption does–it changes legal parents. And so the birth certificate is changed accordingly.

      I understand the view that the birth certificate should show the woman who gave birth–that, like the date and place, is a past fact that never changes. Any state that was so inclined could redefine birth certificates that way, and then they wouldn’t be issuing new ones following adoptions. Instead, they’d make up some new certificate–a certificate of legal parentage of some sort–and they’d issue a new one of those. I’m not aware of any state (or any place outside the US) that has done this.

  5. “No state I know of will alter place of birth or date/time of birth or birth weight. Some states will alter the sex listed on the birth certificate and some will not.”

    This is truly absurd. It seems the more irrelevant the details, the more the state wishes to protect them! How much does birth weight really matter? A few months later it’s nothing but an interesting little factoid. Ditto for the exact minute of birth (even if you could count on the nurses to always record it accurately, which you actually can’t…).
    But the actual historical fract of the mother? the sex? THOSE are what the state treats as dispensable?

    • I can see relating to the identity of the woman who gave birth as an actual fact, akin to date/place/weight. But “mother” isn’t a fact in the same way. For example, in some states, a woman who gives birth to a child not genetically related to her (as gestational surrogate) is NOT the mother. I see that hospitals recording data probably shouldn’t worry about their ability to correctly analyze the legal status of the people they are dealing with.

      And even if you say they should just always list the name of the woman who gives birth, all the certificates I’ve ever seen have a blank on it for a second parent–often the father. That really is typically a legal construct–the husband of a married woman giving birth. There is no analogous “fact” for father. There’s only a rule of law (the father is the man with the specified connection to the child or the mother) and again, perhaps it makes sense for the hospital not to be worrying about that.

      You could say sex is a historical fact on a par with weight, but what you really mean is that a visual examiniation of the genitals of the newborn conform to some standard. I’m not sure why this “fact” needs to be recorded at all. The problem is that, as with legal parentage, a lot of places want a birth certificate as proof of CURRENT (rather than historical) sex.

      • I disagree that sex could possibly be considered an irrelevant fact. Sex is the most basic fact of identity, even more than who are parents are. Even in a relatively gender role flexible society such as ours, we can barely communicate for 5 minutes with another person without feeling the need to know (and/or) imagining their gender.

  6. (In case people got the wrong impression from my earlier comment, let me state for the record that practically speaking I do NOT support changing the place of birth on the birth certificate… I was just trying to point out the irony…
    In fact, I believe the place of birth does have some importance to a person’s identity- years later many adults still feel a sense of connection to the place they were born. The ground can provide a small sense of groundedness…

  7. I’m curious to know what it means to say that the birth certificate is “changed.” Does the state agency that issues birth certificates discard the original and issue a new one or does it actually make changes to the original — like cross out and write in something new? Sorry for my ignorance on this.

    • I’m not sure this is universal, but most places prepare a new birth certificate and then seal the original record. Anyone seeking that person’s birth certificate would receive the new one. And there is no way to tell that it is a second birth certificate. The original is not discarded–it’s just very difficult to get to it and you wouldn’t even know for which folks there was an earlier one.

  8. A friend of mine was born in Vermont in 1966.

    Apparently there was a practice where expectant mothers would go to a private facility and give birth to children who were often adopted the same day.

    At birth, one birth certificate was issued, à la Jane Smith, born to Felicity Smith at 11:35 AM on 11/15/1966.

    When the child was adopted, there would be a new birth certificate. Such as, Martha Williams, born to Sam and Jonie Williams on 11/15/1966.

    The birth time was omitted, because the time could be used with other records to establish the identity of the immediate maternal ancestor.

    My friend was adopted in such a situation, and because of the privacy laws of Vermont, hasn’t been able to track down her birth mother, although she has tried several times.

    There is no birth certificate available to her showing which woman gave birth to her or even the specific time.

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