Here’s a recent story from Iowa that a reader posted in an earlier comment. There’s some other coverage out there as well. It fits in with the discussion about the marital presumption as well as an earlier thread about birth certificates.
A bit of background. Last year the Supreme Court of Iowa determined that depriving same sex couples of access to marriage violated the Iowa state constitution. As a consequence, Iowa is one of the states where same sex couples can marry.
Now generally, in Iowa if a married woman gives birth to a child her husband is presumed to be the father of the child. (That’s the ancient marital presumption mentioned above.) And as far as I know, that’s true even where a heterosexual couple used sperm provided by a third party in order to conceive. In other words, for a heterosexual married couple, the birth certificate is not necessarily a statement about genetic lineage.
So now that same sex couples can marry in Iowa, they’d like the same treatment extended to them. In particular, Heather and Melissa Gartner, who are married, sought a birth certificate with both of their names on it after the birth of their daughter. The Iowa Department of Public Health (IDPH) declined to issue such a certificate.
The refusal of IDPH is unusual. While there are certainly states that won’t issue birth certificates that list two women or two men, all of the other states that permit same sex couples to marry have extended to marital presumption (and issued birth certificates) to women married to women as well as women married to me. Indeed, a number of states that do not permit same sex couples to marry but do have strong domestic partnership statutes (the everything-but-the-name sort of statutes) extend the presumption as well.
Although I’m reading between the lines here, it strikes me that IDPH’s refusal to issue the certificate is essentially a rear-guard action motivated by resistance to the marriage decision. Tom Newton, who is the director of the office, asserted that the refusal was proper since it was biologically impossible for both women to be parents to the child. This, of course, assumes a purely biological definition of parenthood. And it’s clear that this is not the definition of parenthood used in Iowa. If it were, the husband whose wife was inseminated with third-party gametes would not be the father, either.
In fact, what IDPH is doing looks to me like fairly blatant sex discrimination. Suppose A, a married woman gives birth following assisted insemination with sperm provided by a person not her spouse. Is B, the spouse of A, a parent to the child? The answer is “yes” if B is male and “no” if B is female. What justification for this differential treatment can be offered?
That IDPH’s position is based on a false premise (that birth certificates are supposed to reflect genetic lineage) is readily apparent. Consider this:
“The state also acknowledges that there may be instances in which the presumption of paternity may result in the wrong male being listed on the birth certificate — such as in cases of artificial insemination or marital infidelity.”
This suggests that it is a mistake when the husband as a parent on the birth certificate when the wife underwent insemination with third-party sperm. But it isn’t a mistake–it’s the way the law is supposed to work. It isn’t just that the husband is listed on the birth certificate. The husband is, as a matter of law, a parent of the child.
I know there’s controversy about what should be on birth certificates, but can there be any justification for treating men and women differently here?