In the past there have been long and heated discussions of birth certificates here. It’s with some trepidation that I return to the subject, but there is an interesting (and possibly important) new case that throws light on the topic. Meantime, you can use the tag to see some of what has gone before.
Let me begin by saying briefly that birth certificates (and here I mean the short certificates issued by some sort of state vital records office that parent are asked to produce for school registration and the like) are curious documents. Given their name, you might think that they certify something about birth. Perhaps the most obvious idea would be they certify who gave birth to a child.
But generally speaking, this isn’t what they do (in the US, at least). Birth certificates generally reflect legal parentage. This means do not necessarily reflect genetic parentage and they don’t need to list the person who gives birth. (Of course, it is perfectly possible that a genetic parent gave birth to you and is a legal parent, too, so then her name will be there. But not because she gave birth and not because she’s the genetic parent.)
If you are a legal parent, you are usually entitled to have your name on the birth certificate. So at the end of an adoption, a new birth certificate is typically issued. And then you can use that birth certificate to show the school or the soccer coach that you are the legal parent.
But it doesn’t work the other way around. What I mean is that if you manage to get your name on the birth certificate without taking whatever steps might be required to be a legal parent, being on the birth certificate won’t change your status. It is evidence of the status, but it doesn’t create the status.
That may be a lot to think through, but it is all necessary background.
Now on to Florida. Two women in Florida are married. And Florida has to recognize that marriage. One of the women gives birth to a child who was conceived using ART. Both women consented to the use of ART.
First thing to note is that when child is born, both women are legal parents. There are two reasons for this. First, like Utah, Florida has a special statute for married couples using ART. Look at Section 742.11.1 There is an irrebuttable presumption that the husband is a parent. As with Utah, there’s every reason to think this must extend to a wife.
Second, Florida’s more general marital presumption (which exists by case law, not statute) does not appear to rest on genetics. This case discusses the presumption, though in a confusing context. If you read the discussion of the presumption of legitimacy, it appears that once the spouse claims the benefit of the presumption, rebuttal is not permitted.
We can talk about this far, but to move on I will assume that both women are legal parents. But maybe that’s even background. Here’s Florida’s birth certificate statute. Look at Section 382.013(2)(a). It says:
If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction
So the only exception is if a court has already determined someone else to be the legal father. Which isn’t the case here.
Now you’d think that faced with this statute, even if you doubt legal parentage, you have to issue a birth certificate with the husband’s name on it. It’s not for the records office to make any judgments. They look, see if married, see if there’s some other court order, and then they’re done.
But–and you probably saw this coming–the two married women cannot get the wife’s name on the birth certificate. State won’t do it. And so now, there’s a lawsuit.
I’m not sure I see a defense for the state in this one. But it will be interesting to watch. And in working on this post I learned that most state’s have similar laws about birth certificates: If woman is married, put spouses name on certificate. Remember–that’s not what makes the spouse a legal parent, but rather reflects the fact that generally spouses are legal parents simply by operation of law.