This is still in the nature of catching up on various topics. About a month ago I wrote about an Iowa case where a court ordered the state to provide a birth certificate with two married mothers’ names on it. You can read the earlier story and follow some of the links there to get a sense of context. It’s part of a larger discussion of birth certificates as well as a larger story about same-sex couples and marriage.
Anyway, now comes this story saying that the state will appeal that ruling. This isn’t terribly surprising–losing parties often appeal. The reasons given for the appeal, however, seems a little unusual.
The case at hand involved two women who were married. One of the women gave birth to a child conceived with sperm from an anonymous provider. Under these circumstances, the court said the legal presumption which would have placed a male spouse’s name on the birth certificate meant that the female spouse’s name be there, too. Because these are the facts presented in this case, this is the only circumstance addressed by the court.
That’s pretty standard. One of the common (and basic) requirements in an adversary system (which is what we have in the US) is that there be at least two parties to a case–plaintiff and defendant–and that they disagree about something that is real for them. I, for example, probably couldn’t go start a case in Iowa saying that Iowa should issue birth certificates to various people. I don’t have any concrete interest at stake (although I might care a lot) and so we worry that I might not really litigate it properly and then the court might not have a good basis for making a decision.
It seems that the state of Iowa wants to know what to do about birth certificates for married lesbian and gay couples who conceive in other ways, and that’s why it says they appealed. I infer from this (perhaps wrongly) that they are not objecting to issuing the birth certificate in the case at hand, but rather seeking advice from the Iowa Supreme Court on how to manage other circumstances.
I’m not sure what other circumstances they want the court to address. If a married woman becomes pregnant via an affair with a man? If she becomes pregnant suing sperm from an identified sperm provider? Those are two that come to mind. And the application of the marital presumption for men has always sketchy–it’s just not flipped round the other way. (Try to work out what it would say as a thought experiment and you may see the problem.)
Apart from that, I cannot quite figure out how the Iowa court is supposed to prepare itself to give this advice. Does anyone brief the case for them? There’s no real reason the women who brought the case should, but who else will? There’s no “client” to decide what the position argued is, either.
It all seems a little odd to me, but I’ll keep an eye on it.