Yesterday’s post about the Iowa Department of Public Health’s (IDPH) refusal to issue birth certificates bearing the names of both members of a lesbian married couple sparked a lively discussion. I wanted to pick up on some of that. It will be easier to understand this post if you read the other one first.
Iowa has a statutory rebuttable presumption that a man married to a woman who gives birth is the father of the child. The question raised in Iowa is whether the presumption should be applied to a woman married to a woman as well as to a man married to a woman. Any time you propose to treat a man and a woman who are similarly situated (both married to a woman) differently, there’s a possible claim of sex discrimination.
Clearly IDPH is treating men married to women differently from women married to women. In order to determine whether their conduct is acceptable you need to think about why we have the presumption in the first place. Once you figure that out, you can decide if the differential treatment is warranted.
I’ve talked about the presumption on this blog a number of times before, but I’m going to summarize a few key points here.
The presumption is quite old and it seems fairly clear that it was originally designed to minimize the number of illegitimate children. Remember that illegitimacy was a terrible burden for a child in the not-so-very-distant past. And of course, we didn’t have any sure fire ways of figuring out whether the husband was actually genetically related to the child or not. So unless there was certainty that the husband was not genetically related (he was out of the country for ten months, for instance), he was conclusively presumed to be the father. The common use of the presumption was to assign the child to the father, whether the father wanted the child or not.
But now, of course, we have DNA testing and we can know with certainty whether the husband is genetically related to the child or not. You might expect that the modern trend is to step away from the presumption and go with the facts obtained from a simple DNA test.
And yet no state has done that. Instead, the presumption continues to be used but in a weaker form: It can, under articulated circumstances, be rebutted. So, for example, in most places a husband can produce DNA test to show that he is not genetically related to the child and thus avoid legal parentage. Similarly, a wife (usually acting with another man) may be able to introduce genetic tests to show that her husband is not genetically related.
But this is not the same as saying that the presumption is just a best guess about the genetics, so that genetic reality always controls. Just a month ago I wrote about a California case that demonstrates this powerfully. If the husband and the wife are united in their desire to claim parentage for the child, no one can introduce the genetic tests to challenge that result. Put slightly differently, the united stance of the married couple trumps genetics.
This, it seems to me, shows that the presumption is not actually based on genetics or our optimistic hopes about genetics. Rather, it is based on some sort of respect for the integrity of the married couple. If a child is born into the marriage, they are entitled to claim it as their own.
Viewed in this light, it’s hard for me to see how IDPH can defend against a claim of sex discrimination. Remember that in Iowa two women can marry. If their marriage is to be treated equally, then they must have the same right to claim the child born into the marriage. And if they have that right, then I don’t quite see why IDPH thinks it can withhold the birth certificate.
There’s another way of coming at the same conclusion, too, though I cannot point you to support for this in Iowa law. Suppose a male/female married couple in Iowa use ART with third-party gametes. There is not statute covering this (that I can find) but I have to believe that a child born to woman as a result of this procedure is also the child of the husband. Further, I would be very surprised if either of the parties could challenge the presumption with genetic testing under these circumstances. As I say, I cannot cite you law, but if the husband’s paternity were so readily rebuttable, then ART would be an entirely unappealing avenue for married couples in Iowa.
Generally speaking, for couples who use ART, we don’t go by genetics. The joint project of engaging ART to conceive the child is seen to bind both parents to the child. You can see some instances of that here. If that rule applies to different sex married couples, it must also apply to same sex married couples.