Iowa Must Issue Two Mother Birth Certificate

Quite some time back I wrote about a ruling by the Iowa attorney general regarding birth certificates issued to same-sex couples.   Same-sex couples in Iowa are permitted to marry and Heather and Melissa Gartner did just that.   They  had a child and sought to have a birth certificate issued that would list them both as parents.    This is precisely what would have happened had they been a different-sex couple, no questions asked. But the Iowa Department of Public Health (IDPH) refused to issue them a certificate.

Now I understand from long experience here that birth certificates are a touchy subject.   Several regular commenters would have a birth certificate list the genetic parents of the child–the man and woman who provided the gametes.   But I’m going to ask you to accept–just for this discussion–that while you might like things to be that way, it is not an accurate description of the way things actually are.  

A birth certificate is a document that reflect the legal parentage of the child and legal parentage is not always grounded in biology.   Thus, when a child is adoptive the adoptive parents get a new birth certificate with their names on it.   (You can read tons of posts on birth certificates under the appropriate tag.)   Similarly, when a married woman gives birth to a child, the husband’s name goes on the birth certificate even if it is perfectly clear that he is not genetically related to the child.

With all this in mind, the question presented here is actually pretty simple:  Is there any justification for treating a same-sex married couple differently than a different-sex married couple?   For all that access to marriage for same-sex couples is about equal treatment, does some unequal treatment survive?

The answer, according to the court that ruled this week, is “no.”     Iowa must issue birth certificates for same-sex married couples just as it would for different sex married couples, without regard for biology.

Note that this is a district court (that means a trial court) decision and thus could be appealed.   We’ll just have to wait and see.

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14 responses to “Iowa Must Issue Two Mother Birth Certificate

  1. Most of the people who voted on behalf of same sex marriage (including legislators) had no idea this is what it meant.

    • Iowa is a state where the law changed because of the courts and not the legislature, but you raise an interesting question. What do people think allowing access to marriage means? I suspect it does include having families and all that. I don’t mean that people think specifically about birth certificates, but then people don’t really consider the fine details in many situations. SO I’m not sure which way this cuts. People must know there’s a ton of stuff that goes with marriage even if they do not know what it is, don’t you think?

  2. I have a gay nephew, young divorced might marry again, and a whole gang of gay friends but can see no justification for the legal fiction that is the birth certificate model you propose.

    • It’s not a birth certificate model that I propose–it’s the way birth certificates work. Everywhere in the country the husband’s name goes on the birth certificate automatically–no genetic tests required. And that is true even where everyone knows that the husband isn’t genetically related because the couple used sperm from a different man.

      This is because we understand/assume that the married couple is planning to raise this child together and a birth certificate is an important document for people raising kids together. I’ll repeat myself–you might wish to change the way things operate–I know many people find the status quo objectionable. But it is the status quo and as long as the privilege is extended to married different sex couples I do not see any basis for withholding it from married same sex couples.

  3. I wrote a response but it did not post. Hmf.
    I believe in equal rights above all else.
    There is no excuse for issuing a genetically inaccurate birth certificate.

    Nobody should be named as a parent on the birth certificate of a person who is not their own genetic offspring.

    There are instances where it is currently legal to commit this type of fraud against the person named on the certificate: adoption is one instance and the allowance for quasi-marital children to be treated as if they were the biological child of an unrelated spouse. If an unrelated male spouse has a legal right to be named as father of his wife’s child there is no reason why an unrelated female spouse should not have that same right. Only problem is that both of them are big fat liars and neither one of them should have that right. In fairness though I don’t think we can deny the unrelated female spouse that right too. The right thing to do is take away the unrelated male spouse’s right to be named as father so the unrelated female spouse has nothing to whine about.

    • I understand your general objections re: the birth certificate. The point here, though, is what you mention at the end–the fairness of giving the birth certificate in the case of the unrelated male spouse but not the unrelated female spouse.

      • Yup that is the point. I think the decision was justified given the current realities of the law for male spouses.

  4. With regard to adoption, it really doesn’t bother me so much as long as it is understood that it is a replacement certificate, the original is not destroyed and is made accessible upon the request of the involved parties.
    With regard to heterosexual couples, the only way the government could bar a male from being listed as the child’s father; would be to institute massive DNA testing which we’ve already disagreed about but i think most citizens would view it as unnacceptable. Therefore the situation is not comparable to a woman partner.

    • Look K don’t go all overboard here. Lets say there was no mandatory DNA testing at birth, but the law in every state was tweeked to say that the State is not in a position to grant people their biological relationships paternity is either true or its false scientifically. If it is scientifically impossible for the state to presume paterntity exists such as it would be with a person who is obviously not male, then the state cannot presume it to be true. It is too invasive to ask men if they are potent or sterile, so it is reasonable for the state to presume that a husband is the father only the law should say that its fraud to lie and the presumption is based on the belief that paternity actually exists if it does not the false presumption invalidates the legality of that person as the child’s father. He may however still end up on the hook taking care of the child if he participated in the fraud and was not a victim of it and there is no real father in the wings ready to proove he is the real deal. We can alter the law to clarify that false presumption invalidates the person’s father or motherhood. We can say that if someone demonstrates that the state’s records are not correct biologically they will be corrected to match reality. That is clearly a step in the right direction and it gives all children equal rights to true records. Right now the way it is some people can have records that are plain old lies.

    • I’m inclined to try to separate out two questions, but I’m not sure if this will advance the conversation.

      First, the spouse of the woman who gives birth is a legal parent of the child, be that person male or female. This I think was and is clear.

      The second question, the one at issue here, is whether the couple is entitled to a birth certificate that reflects legal parentage. Again, I ask you to just accept for the moment that Iowa birth certificates reflect legal rather than genetic parentage. I’m not saying this hypothetically–that is what they actually do. And I fully appreciate you could want to change this, but that’s not at issue in this case. That’s a different case, a different discussion.

      So is there any justification for some legal parents (male ones) getting to be on the birth certificates while other legal parents (female ones) don’t? This seems to me to be exactly the kind of unfair treatment we ought to worry about. You just make life for the female/female couple difficult. And for what end?

      • What if a man gave birth to the child. Would he then be the mother? Like a guy provided the sperm the woman the egg but she could not carry the baby so he did it for her – he has a womb he’s an oddball. C-section pretty baby though. Then is he the mother and she the father? Just thinking out loud

        • I think this is actually sort of an interesting speculation. Much of family law has tacked towards a gender neutral formulation, but some of the issues around parentage remain locked into gendered roles. The presumption about the spouse of a woman who gives birth is generally sex specific. What I mean is that the spouse of a man who is known to be the father of the child (whatever that means) isn’t automatically a parent. And though it is a little hard to frame the hypothetical, I’m inclined to think that if a man did give birth he’d be a parent for sure. Would we call him a mother? Harder to say.

          • Julie I have a feeling that they can probably grow a baby soup to nuts in an incubator now they just have not (that they’ve told us about). Again thinking out loud would the parents of the baby be who ever intends to raise the baby? What if they were just made by lab techs for a company on speculation, would the parents be whoever then wanted to raise them/brought them home? Would a baby that nobody wanted to raise be thought to have no parents? Is it all in the wanting of the child?

            • I don’t think this can be done (yet) but that doesn’t mean it isn’t a good question. ART brought us the concept of the intended parent–the person who put the whole thing in motion resulting in the creation of a child. An intended parent might be a genetic parent and they might be the person who gets pregnant, but they need not be. In some states and in some contexts, the intended parent is the legal parent. But I think the idea is entirely restricted to ART cases. This is something I’ve written about and something I’m not wild about. It seems odd to me that we have an entirely different set of legal rules that come into play based on the manner of the child’s conception.

              All that said, the standard answer to your question is probably that the people who put the whole thing in motion would be the parents whether they want the child or not. I do not say this because I like that answer, but I don’t know that I have my own answer just at the moment.

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