Iowa Birth Certificates: When Not All Marriages Are Equal

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?


25 responses to “Iowa Birth Certificates: When Not All Marriages Are Equal

  1. Interesting. Here in the UK, our laws were explicitly updated last year to ensure that same sex partners are treated in the same way as heterosexual partners in assisted reproduction situations. Essentially, a female same sex partner becomes the second legal ‘parent’ of a child after her partner’s artificial insemination (either through a licensed clinic or, if the couple are ‘married’, through artificial insemination at a clinic or at home). The reasoning consistently given by the government was to ensure elimination of discrimination on the grounds of sex and sexual orientation. Perhaps a useful precedent for those grappling with similar issues in the US.

    • I am afraid I made an assumption in writing this post which proved to be false. I assumed Iowa had a statute to cover ART conceptions. I now believe that it does not. I’ll write a bit about this momentarily, but if nothing else it illustrates that the law in the US is in a bit of a shambles, with no law in some states and varying laws in others. (I’m using “law” here to include both statutory law and case law.) I do think I’m correct in saying that most states that grant legal recognition to same sex couples have ended up treating same sex couples as they treat different sex couples. But YMMV, as they say.

  2. The key to understanding the law might be the notion of ‘presumed to be the father of the child’ – ie generally, society would assume because he is married to the woman giving birth, he is the father of the child. However, there can be no presumption that if a child is born to a lesbian couple that the spouse is the father of the child. No member of society even including toddlers would assume something so bizarre. Hence, this ancient law despite its ‘discrimatory’ outcome is sound. But if you don’t like its outcome, the better idea might be to abolish the presumption altogether rather than extend it, and introduce genetic testing at birth, and only list those who test out as genetic parents on the birth certificate. It would be a much more honest approach!

    • Language can be quite slippery. I think it is quite possible that when one member of a lesbian couple gives birth, many people assume the non-birthing partner is also a parent of the child. That’s not because they think about the biology, particularly. It’s because they see the family right there in front of them–a kid and two parents.

      So it depends what you mean by “presumed to be the father [or parent] of the child.” If you think it means “presume he provided the genetic material” then it would not make much sense to extend it to a woman. If you think it means “presume he will occupy the role of parent” then it does make sense to extend it. Since it has been the general practice to extend the presumption to men whose wives have become pregnant with third-party sperm, I think it has come to mean the latter.

    • marilynn huff

      Genetic testing at birth I believe should occur at every birth these days as a mater of course in the certification of the facts surrounding the birth of a child. The information collected and put on the birth certificate is the same information used by the department of public health and center for disease control to control the spread of disease in the general population. The false information recorded on birth certificates on the argument of what constitutes a parent ultimately makes it appear that people have reproduced when they have not and conversely makes it look like people who have reproduced have not or at least not to the extent that they actually have. People are tracked in the wrong family groups away from their siblings and other relatives. Since millions and millions of people have been conceived thru art, millions and millions of birth records drom a scientific standpoint from a department of public health and disease control standpoint are WRONG – LIES – FALSIFIED.

  3. I have already stated my opposition to routine DNA testing.

    I support upholding the presumption but allowing for it to be challenged by DNA testing upon request. This is, in fact, the law in many states.

    In the case of a same sex couple I would consider it a prima facie challenge to the presumption and thefore abandon the presumption.

    The husband of a married woman who is not the biological father of her child, whether due to adultery, sperm bank or for any other reason, should only be considered the father if he was aware of his legal right to challenge the presumption but chose not to.

    There is an interesting contradiction here in the law as it stands now (I think- please correct me if I am mistaken) in some locales the marital presumption only applies if the couple was married at the time of birth, not at the time of conception, whereas in ART, the husband must consent at the time of conception. Is that a fair difference?

    • I think the presumption is usually (but not always) extended to ART where the couple embark on the project together. I don’t know whether you find that satisfactory, but practically thinking it’s good to have the parentage problem worked out from the get-go. If the parties willingly participates in a process using third party sperm, then neither of them can complain later that there’s no genetic relationship. (I’ll actually write about this shortly.) If the wife goes without the husband’s knowledge, then the presumption can be rebutted.

      In terms of timing, it’s typically been key to be married at the time of birth. Historically, given the stigma attached to being born out of wedlock, it made sense to provide a way for people to legitimize a child after conception. (How many movies have we seen with that as a plot premise?)

      ART introduces new wrinkles. As I said, it’s much tidier if everyone agrees at the beginning and then it’s a done deal. But I would guess that if a wife underwent ART without her husband’s knowledge and then, before the birth of the child, he decided it was fine with him, the presumption of legitimacy might attach from the fact of marriage at time of birth.

  4. Just because a law allows for some mistakes to slip by in a wink wink lets look the other way fashion (which is how I see it) does not mean we must make the occasional mistake mainstream.

  5. (Looking to ART for the traditional application of the law doesn’t really make sense, as ART is not very traditional…)

  6. If the presumption of paternity is supposed to protect the child from the stigma of illegitimacy, or the mother’s husband from the stigma of cuckoldry, then it’s true that it’s irrelevant for a same-sex couple.

    If, however, it’s designed to efficiently grant a child 2 legal parents, then the IDPH decision is contrary to the intent of the law as well as discriminatory. I don’t know if the Iowa birth certificate actually grants parental rights — but if not, then it’s just a public-health record, and in that case IDPH has to defend why it makes a deliberate “mistake” in writing in a man who is not (in some cases, could not possibly be) the biological father, but won’t write in a woman in the same position.

    It seems to me that we ask too much of birth certificates — a record of a birth, proof of identity, and a kind of shorthand for legal parentage, even if it’s not portable across states. The ability to go back and change birth certificates adds another layer of confusion. There should perhaps be one document for a child’s genetic heritage and another, simple, portable (legally and physically) document listing his/her legal parents.

    • That’s a fair point about birth certificates. Is there any real effort out there to switch to something like you describe? Or is that the practice in other countries?

      I don’t believe being listed on a birth certificate necessarily grants you legal rights, but (as has been discussed elsewhere) the grant of legal rights (say by adoption) may entitle you to be listed on the birth certificate.

      • Unfortunately, I don’t know how other countries handle birth and parentage records.

        If a birth certificate doesn’t grant any legal rights (and that’s what our local attorney told us too), then why do people still choose to change the certificate when they complete an adoption? Possibly because that is the one document consistently used by authorities (school registration, Social Security, etc.) and it is in fact used in practice to identify a child’s parents. I discovered this when applying for a child’s passport — both parents listed on the birth certificate have to appear with the child.

        Given this prevailing usage of the birth certificate, of course it’s essential that non-bio. parents can be listed. But the conflation of a birth record and an identity paper encourages the false idea that when non-bio parents ask for recognition as full legal parents, we want to obscure or somehow invalidate a child’s genetic background.

        I don’t know what kids do who have legal guardians — maybe the guardians travel with a portfolio of papers like many same-sex parents do.

        • What you’ve written is an accurate description of what happens. The birth certificate doesn’t, in and of itself, grant any rights. A person can be listed on the birth certificate and have no legal status as a parent. Yet a wide array of authorities strong prefer (if not insist on) production of the birth certificate for various reasons. You can sometimes persuade authorities to go with the portfolio of papers, but that won’t always work with the individual ICE agent you may meet at some border, say. Hence, new birth certificates are generally issued when legal parents change.

          No doubt some people use take advantage of this to conceal the manner in which they became parents. I’m not troubled when people conceal this from ICE agents or football coaches. But I’d say that concealing this sort of information from the children involved is a different matter.

          That said, I think parents probably ought to have leeway about exactly how and when they provide information to their kids. I’m not going to mandate that you must tell your child when she is three or five or nine. Surely this will vary. I think if it is clear that the child has some right to know at some point–say when the child turns 18, just to pick an arbitrary age–it would strongly encourage parents to figure out a way to tell kids on their own before that time.

          There’s been a lot of discussion about this on the blog (you can use the tag that says “birth certificates” to find some of it.) I think my views on this have evolved over time, but you might find some of the earlier posts interesting.

  7. The presumption of paternity dates from a time before paternity tests and before widespread adultery and artificial insemination. These days it is one of the main reasons for the marriage strike by men, along with alimony. Even in states where it is rebutable, men often take too long to rebut it and wind up on the hook for 20 years, just because they foolishly married instead of shacked up.

    Birth Certificates should not be legal guardian certificates. They should accurately reflect the genetic parents, birth date, birth sex, and birth place. The genetic parents should verified with mandatory DNA testing now that it is available and relatively cheap, we should no longer accept untruths on a legal document now that we can prevent it.

    Separate documents should record who the guardians are. The genetic parents have the primary responsibility and right to raise their child, but of course if they can’t or don’t, then the state should step in and find new legal guardians. But it should never lie on the birth certificate or other legal documents.

    • I regret to say that I’m not sure widespread adultery is a particularly modern phenomenon, though I’m not sure that is either here nor there. It’s certainly true that the marital presumption of paternity predates genetic testing. And it’s interesting that we continue to use it to this day.

      There’s a lot of discussion on birth certificates and what they do (and what they should) show elsewhere on the blog. You might want to go read some of it–try the tag that says “birth certificates.” You’re not the first person to suggest that perhaps we need dual certificates–one that records historical facts of birth and another that records who is legally recognized as a parent. In my view, if you went that route, only the name of the woman would appear on the historical birth certificate–after all, she’s the one who gave birth. You could, of course, list others in attendance. Then you might also want something like a pedigree and list the providers of the genetic material (who might or might not be present at the birth.) That could give you a third certificate.

      I think these are interesting ideas and you can learn a lot by thinking them through. But I’m not aware of any serious effort to move away from birth cerfiticates as the one piece of paper that does several jobs.

      Finally, I think it is quite possible to adopt and not lie to a child.

      • Adultery used to be very rare, and certainly never countenanced or tolerated like it is now. It is a capital crime in many countries to this day, and should be a punishable crime here too (I’m a moderate, I don’t advocate hanging adulterers, only jail.)

        I think surrogacy and egg donation should be banned, but as long as women give birth to people who are not their genetic offspring, I think they should not be listed on the birth certificate, only the genetic mother and father should be listed on the birth certificate, and the womb provider should not be recorded at all. Of course that’d be impossible to do, and we’re stuck with birth mothers being recorded as the mother and whatever name they provide recorded as the father. But now that DNA testing is cheap and easy, we should positively identify the mother and father on the birth certificate, or list “unknown” if no DNA match is found.

        • I think this is really a tangent but as I understand it, in regency England, adultery was quite common among the upper classes. Because of the marital presumption, many men were legally fathers to children they had no genetic relationship with. I think it was most important that the husband have a high degree of confidence as to the genetic paternity of the first son because of primogenitor.

          It’s actually not impossible to do what you propose. In a number of states the birth certificate for a child born to a surrogate does not necessarily list the surrogate.

          It’s interesting to me that you rely heavily on genetics to identify the true parents of the child and yet I think said elsewhere that you would presume the genetic parents unfit in the event they weren’t married. There’s something about this that seems askew to me.

          • I think we should use genetics to identify the parents on the birth certificate. I don’t think that the genetic parents should be considered fit parents if they intentionally conceived out of wedlock, and the child should be raised by wolves rather than with the criminals who were involved in the conception. OK, that’s going to the extreme obviously, I don’t imagine that would become the policy after more practical considerations were taken into account.

            • marilynn huff

              what would be the practicle considerations? Maybe a change of heart by the genetic parents? Would that be ok, if they thought better of their actions?

  8. But I’m not aware of any serious effort to move away from birth cerfiticates as the one piece of paper that does several jobs.

    Huh? Move away from???? Altering birth certificates is NEW, is wasn’t done 50 years ago, it wasn’t done 20 years ago. I don’t even think it used to be done in cases of adoption, which iteslf is only 100 years old. There have been legal guardians since pre-history, way before birth certificates, and birth certificates never were confused with legal guardianship.

    • John your philosophy proposes that thousands of more children be raised away from their genetic parents. And your view of criminalizing adultery is nothing short of chilling. You must realize that you seriously lack credibility on your other prescriptions.

      I am glad you are a fringe, otherwise freedom in America would be severely at risk.

  9. Well put on a sweater. There wouldn’t be many couples that would still intentionally conceive out of wedlock after we started taking their kids away, and we wouldn’t do it retroactively, we’d wait 9 months before starting to enforce that law.

    I think people who try to appear moderate have no credibility.

    • john what if a baby was accidentally conceived out of wedlock and the mother and father don’t want to get married but share custody of their child amicably?

  10. UGH. This is still America. You might try Saudi Arabia, where government controls over personal liberties might be more to your liking.

  11. BTW John I wonder if you realize that your position actually supports the position that genetic parents are not parents, because of your associating it with gross violation of civil rights.
    You are really no help to our side of the debate at all!

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