For several years (time does fly) I’ve been following an Iowa case challenging the state’s refusal to issue a birth certificate listing the names of both married women when one woman gives birth. As you’ll see if you read through the posts I just linked to, the case is something of a follow-on to the Iowa litigation that resulted in access to marriage for same-sex couples in Iowa.
The Iowa Supreme Court has now issued its decision. It determined that the state must issue the birth certificate listing both women’s names. Of course this brings up the whole birth certificate debate and the reasoning of the court is interesting in that larger context, too. (If you look under the tag you’ll find a lot of posts about birth certificates and what they should or do say and mean.)
For those who don’t want to read through the opinion and/or the earlier string of posts, it’s worth noting a couple of key features here that are really woven into the facts of the case. First, Iowa allows adoption, including what is called “second-parent adoption.” This means that when Heather and Melissa Gartner (the plaintiff couple in the case) had their first child, born before Iowa allowed them to marry, Melissa could adopt the child that Heather gave birth to. At the end of the day they were both legal parents of that child. (FWIW, the child was conceived using sperm from an anonymous provider.) Once the adoption was complete, the state issued a new birth certificate for the child–one that listed both women as parents.
I know that to some people listing adoptive parents on a birth certificate strikes many people as bizarre and fraudulent. After all, they didn’t give birth. But it’s standard practice throughout the US. As I’ve said many times, birth certificates are strange documents and the designation of “parent” on a birth certificate is not a statement of historical fact. (Other things, like time of birth, are.) Instead, designation as “parent” on a birth certificate is often used as proof that the person is in fact a legal parent. So for instance, to prove that I am the person who has the right to enroll my child in school or in soccer, I produce the birth certificate where I am listed as “parent.”
This could be changed. Maybe it should be changed. Maybe we should all have “legal parentage certificates.” But for the moment, we use birth certificates to prove legal parentage. This is the way things are and you just need to go with it to understand the rest of the opinion and the rest of this post.
Anyway, the Gartners had a second child a few years later. Heather also gave birth to this child, who was also conceived with sperm from an anonymous provider. By the time the second child was born, Heather and Melissa Gartner were married. And this brings me to my second key feature.
Iowa has a presumption of parentage that applies to married couples. This is discussed starting on page 11 in the opinion. Handily enough, footnote 1 (also beginning on page 11) catalogs similar state statutes from dozens of other states, sorting them into three categories. (I have not counted and it may be that not all fifty states have statutes, but I’m not aware of any state that doesn’t have some version of the presumption.) In its traditional form the presumption provides that when a married woman gives birth to a child, her husband is presumed to be the legal father of the child. This means, among other things, he is automatically listed on the birth certificate. He doesn’t have to adopt the child. And that’s the way the Iowa statute worked. As the very extensive footnote makes clear, some versions of the statutes are gender neutral, but Iowa’s is not.
There’s lots to say (and lots that been said) about this presumption and how it operates. Professor Nancy Polikoff has an excellent discussion of this case on her blog. But I’m going to go on ahead here.
The Gartners sought to employ the presumption so that Melissa would not have to adopt the second child to get listed on the birth certificate. The Department of Public Health refused to do so and the litigation followed.
It seems to me that the Department had a very weak position from the beginning. It was agreed that if a heterosexual couple used sperm from an anonymous provider the husband could employ the presumption. Thus, the presumption isn’t about genetic connection. As the Iowa Court notes on page 15
The presumption counteracts the stigma by protecting the integrity of the marital family, even when a biological connection is not present.
How, then, does the state justify treating a man married to a woman differently from a woman married to a woman? It’s not surprising to me that the Iowa Court concludes that the differential treatment cannot be justified.
Starting on page 24 you can find the discussion of the three rationales offered by the state. It’s not hard to see what’s wrong with the reasons offered. For instance, the Department suggests it has an interest in “accurate birth records”–by which I think they mean records that actually identify the genetic parents of the child. It’s a bit hard, however, to make this claim when they’d issue a birth certificate to the very same people if they just went through a formal adoption proceeding. Or to a couple where the non-birthing spouse happened to be male. As the court observes, this doesn’t make the birth certificate any more “accurate.”
I think the opinion is worth taking the time to read because it is clearly written and covers several topics that come up with some regularity here. It’s also, to my mind, an opinion that reaches the right result. No matter what you think about what we ought to put on birth certificates, it seems only fair that the Gartners’ entitlement is the same as any other married couple in Iowa.
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except that only one case involves asking us to presume the impossible.
I think you are assuming that the presumption is that the spouse is the genetic parent. But that’s not what the presumption is–the presumption is that the spouse is the LEGAL parent. And that’s not impossible.
Now I think you can ask about whether the underlying basis for the presumption about legal parentage lies in genetics. I think this might be discussed in the opinion, but do not have it to look at right now. But I don’t think it is about the genetics–that’s why we allow the presumption even when we know with certainty that the genetic link isn’t there–as where there is third-party sperm.
I do understand that in one case everyone looking at the couple knows that there is no genetic linkage while in the other case they don’t necessarily know. Maybe that means one case requires us to actually understand that legal parentage is often assigned without regard to genetics while the other case allows us to continue to believe otherwise. But I’m not sure that is an argument that justifies different treatment of the two families.
Julie said: “As I’ve said many times, birth certificates are strange documents and the designation of “parent” on a birth certificate is not a statement of historical fact. (Other things, like time of birth, are.) Instead, designation as “parent” on a birth certificate is often used as proof that the person is in fact a legal parent. So for instance, to prove that I am the person who has the right to enroll my child in school or in soccer, I produce the birth certificate where I am listed as “parent.””
You know my stance on this so I won’t go there again.
I do want to challenge your statement that the birth certificate proves your legal parent status. What happens when a marriage breaks up and one party sues the other for full custody and wins? Is the child’s orginal birth certificate sealed and a new amended version created leaving the non-custodial parents name off? I wouldn’t think so – instead would they just not provide custody papers to the school, doctor, dentist, etc that wants proof that they are the only legal parent allowed to make parenting decisions on behalf of the child?
If my above scenario is correct – then the entire concept of the argument for amending the birth certificate in adoption because it is really a legal parent document fails. So does the concept of an adoptive families privacy having to use adoption paperwork is an invasion of privacy that other families don’t have to deal with.
Adoption is a choice made. Divorce is a choice made. Suing for full custody is a choice made. All those choices come with benefits and costs.
I view a birth certificate as a form of legal ID, which contributes to the question of legal parentage but isn’t the sole determinant.
A birth certificate is supposed to answer the question “who is this child”?
Birth certificates actually do lots of different things. they tell us how old a person is. they tell us where a person was born. But I’m not sure they tell us “who” the child is. I’m actually not sure what it means to know “who” a child is.
Same way as an adult, your drivers license answers the question tells who you are and can therefore be used as an ID. It provides your name and and physical description. A baby does not have a social identity or a name when it is born. It’s name is inadequate as an identity unless we specify which baby is hereforth to be called by that name. We identify the baby by its kinship and details of the birth. An emended birth certificate can serve this purpose, because the whole institution of adoption is supposed to create legal kinship, but the state always retains the original to let us know exactly which child was adopted by who and re named.
My position is that the original is the property of the person named in it, not just of the state, and it must be an accurate historical record to the extent possible. The emended birth certificate for the neighbors can say whatever, I guess, only it seems a little silly to me because no one is actually going to believe that 2 women gave birth to the kid.
I think what you are describing is a way one might choose to organize things rather than the way we have actually chosen (for better or worse) to organize things. Birth certificates COULD be historical records all the way through. In that case it seems to me that they would list the name of the woman who gives birth and stop there. They could be records of genetic lineage. In that case we’d have to do genetic testing before issuing them. Or they could be (and actually are) records of legal status as a parent. If they latter then they need to be changed when legal parentage changes.
I am not saying that we have the best possible system in place and I think you raise important questions about whether there’s a better way. But IF they are records of legal parentage, THEN the result in this case seems to me to be right. The women are both legal parents. There’s no reason to treat them differently from a married different sex couple.
A non-custodial parent is still a legal parent. Birth certificates do not reflect custody in any way. And custody is not the same as legal parenthood.
It’s also somewhat more complicated than I made it sound. I might convince someone at the hospital to put a particular person’s name on the birth certificate. That’s evidence of something, but it doesn’t make the person whose name appears there into a legal parent. SO merely being on a BC doesn’t make you a legal parent. But generally, proving you are a legal parent gives you a right to be on the BC. And in most institutional settings, the BC is in fact accepted as proof of legal parentage–so in schools and little leagues and doctor’s offices.
I know it is tricky. And I know there is much that many find objectionable.
Love Tao
It’s absurd. But equal until we stop looking the other way at maternity and paternity fraud broadly and make it illegal to represent yourself as the parent of someone else’s offspring. You should have to go through a formal legal process to become the adoptive parent of someone else’s offspring clearly deliniated from being a parent. It must be that way in order to always ensure that the child is protected from being traded or gifted or sold out of their own family and into another one. It must be that way to prevent black market adoption. Gamete donation requires abandonment of a person’s offspring and never being recorded as that offspring’s parent allowing for the traditional black market adoption record keeping of naming non parents on origina birth records. Tragic
So here is where we pretty dramatically part company, partly on philosophical grounds and partly on more narrowly descriptive grounds. Let’s suppose a man and his wife use sperm from a third-party and the wife gets pregnant and gives birth. When the child is born the husband will be the legal father of the child. Presenting himself to the world as the legal father isn’t any kind of fraud at all–it’s the truth. He is legally the father of the child. This is just descriptive.
Now you don’t like that–I understand. And lots of people may also assume he is the genetic father of the child and that isn’t true. Does he have an obligation to tell everyone he interacts with–at the playground, in the grocery store–that he is not the genetic father of the child? If he just goes around and lives his life is that a fraud? I don’t think it is, though you may. It sounds like you think that merely letting people assume he is genetically related is wrong–that he has an affirmative duty to correct that impression? I just don’t think his genetic connection to that child is anyone else’s business. (Or at least, not in the settings I’ve given here–I agree he should tell medical people, say, in situations where medical history matters.)
As I understand your position, you’d like to change the law so that it was illegal to present yourself in a way that others might assume that you were a genetic parent when in fact you were not. I just don’t quite understand how this would work. If I went somewhere with my child, my legal child who is legal not be virtue of adoption but by operation of law, how do I know who is assuming we are genetically related and who is not assuming that?
Actually, now I think of it I think what you really want is probably to make it impossible for me to be a legal parent save by adoption or genetic connection, right. I think your underlying problem is that I can become a legal parent without adoption and without genetic connection. It’s certainly possible to imagine changing this–but it isn’t one that any one that any state I’m aware of actually uses. And it is not what we have done historically. Just to be clear.
What about situations where the wife is cheating and the husband doesn’t know the child she gave birth to isn’t his? If one can only become a legal parent by adoption or genetic connection, doesn’t that mean that DNA testing would have to be ordered at the birth of every child to determine if the husband is the father?
DNA tests can be ordered upon request. Otherwise, it is presumed. Mandatory DNA testing would be an unnacceptable governmental violation of privacy in my opinion.
I am not opposed to the presumption. Marilynn is.
Right. I think this is something worth thinking about. If we didn’t have the marital presumption then one obvious course would be to genetically test all newborns and the men who purport to be their fathers, including husbands of married women who give birth. Now, would this be a good or a bad thing? Some men would discover unhappy truths. Maybe it is better to learn them sooner rather than later? I can see the argument that this is so. Yet I think in general there is very little support for universal DNA testing of newborns. Why is that? Are we happier not knowing? People talk about privacy, but what exactly is the privacy issue?
Maybe the default should be genetic testing buy husbands should be allowed to decline if they agree that they will assume parenthood no matter what the test would have shown?
There are other ways to establish parenthood without the marital presumption, I think. You could have people sign off on a joint project (as is done in Quebec, I believe). But that’s generally reserved, I think, for ART.
Any lesbian couple relying merely on state law to document parentage are fools. It’s imperative they complete a second parent adoption so that their legal rights are fully documented in case it needs to be recognized in other states. As we’ve seen time and time conservative bigots have no problems stealing children from their gay and lesbian parents. This couple is playing a dangerous game by not having a second parent adoption.
Sadly, I must agree. Adoption alone will ensure legal parentage as they travel to other less hostile states. It is prudent. But it may also be prohibitively expensive.
But wait til the infant grows up and wants to trace their roots. People who discuss gay parenting have the option to meet their biological (some would say real) family, so why the bias against the children that they claim to love? Don’t they have a right to that option too?
If it didn’t confer legal status and were simply a record of biological parentage, I’d happily have the biological father’s (a sperm donor) name on the birth certificate of the child I’m trying to conceive, or even just known to the child and everyone else without being on the certificate. Since I am single, neither of those options is legally possible where I live. If a woman is married or has an unmarried partner who legally adopted the child, she can use a known sperm donor, and in fact the known donor can be quite involved in the child’s life if all parties agree, without any legal status in the eyes of the state. But there’s simply no legal framework for that if the woman is single. It is what it is, so I chose a donor who agreed to be contacted by the child at age 18.
Do you mean to raise the question of known vs. anonymous sources for gametes here? This is a question independent of whether or not lesbians and gay men should get to be legal parents or should be given birth certificates, of course. Not that this means it is an unimportant question–I do think it is important and it is frequently discussed here. But I don’t see how it bears on the birth certificate question.
I wish there had to be a birth certificate with the accurate biological information listed on it, rather than just who will be raising the child, so that’s how it relates to birth certificates for me. If my sperm donor procedure next month works, I wish my child could have the biological father’s name on the birth certificate, but knowing the name will have to wait til 18, that’s just how it is unfortunately (I chose a donor who agreed to contact at age 18). With the current legal system in my state, it would have been impossible to have a known from birth donor without him being the legal father unless I were married.
It’s easy to imagine a system with different documentation–one set of genetic lineage documents and another set of legal parentage documents. I don’t think there’s any really serious effort to move towards this in the US though.
Rebecca
It sounds like you are thinking logically. Let me run this by you..did you just say you believe that it is appropriate for your child’s birth record a medical record, his medical record – to be complete and accurate with regard to the identities? Forgetting custody and financial responsibility and all that for a minute but just medical truth in recording the facts – it can be known and therefore there is no reason for it not to be known – except your state will not allow it until he’s 18.
Your thinking pretty rationally.
So can he add his father’s name to his birth record at 18 so that all his family members have a right to his birth record and he, in turn will have a right to theirs? I mean will he be legal kin when he can learn his father’s name?
Yes, I believe that the birth record should be biologically accurate and wish it were legally possible at birth. I am not sure what rules there are about altering a birth certificate after a child turns 18. Hmm that actually leads me to another thing to wonder about – if an adult is legally adopted, which happens from time to time, do they get a new “birth certificate”? That would be pretty weird.
That’s a good question about the legal relationship and I haven’t the faintest idea. In my state, the laws about sperm donation, seem to be:
If the woman is married, the husband is the legal father if he consented to the procedure, whether the donor is known or unknown
However, legal parenthood is NOT written out of the law when the woman isn’t married. The statute mentions married women only. Now, obviously if the donor’s identity is not currently known to anyone, and the donor doesn’t know the child’s identity yet, neither the state, the donor, or the mother can do anything. If the woman has an unmarried partner, the known donor could sign a TPR if he wishes and the partner could adopt the child. If that never takes place, then the father could be legally recognized as the father if he requests, or alternatively, if something happens and government assistance is required, the state could go after him even if he wants to just have visits without fully acting as a parent (similar to the Kansas case, though I’ve never heard of it actually happening here).
If the woman is single, I don’t believe the known donor’s rights can be terminated by any means unless he’s found unfit, even if he wanted to, the whole “State wants two parents when possible” rule. So then I guess that leads to your question – if the donor becomes known at a later time, and the child never gained a second legal parent, does the donor automatically become the second legal parent, or can he be made the second legal parent? And you know, I have no answer to that, it’s probably a really obscure legal question.
Since the known at adulthood donor is probably a fairly new thing maybe the closest alternative legal situation would be a case where the bio father disappears after a sexual relationship before a child is born, then reappears when the child is an adult. Is he considered the legal father if no one else took the role? maybe someone with more legal expertise would know…
And I suppose it might be further complicated by the fact that the donor donated in state A (where he may or may not live), I am having my procedure in state B, but live in and will give birth in state C.
Oh one more thing, all legal relatives can NOT access birth records in my state. You can access the birth record of a child or a grandchild. An adult child can access the records of their parents and grandparents. Records of siblings, aunts, uncles, nieces, nephews, and cousins can be be accessed.
But what is important to me is that my child knows who the biological father is, and gets the chance to contact him, talk to him, and they can decide from there whether to take that relationship further.