New Florida Birth Certificate Litigation Begins

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.

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14 responses to “New Florida Birth Certificate Litigation Begins

  1. Interesting. Julie, I’m very curious, what are your thoughts about this?:
    “Biology and Birth Certificates: Our Right to Accuracy”
    https://www.donorsiblingregistry.com/blog/?p=618

    • Thanks for that link. There’s a lot I agree with there, but I do think the issues are quite tangled up. I noticed, for instance, that the women in Florida are demanding an “accurate” birth certificate. So it all depends on what we mean by accuracy and what it is we want various documents to do.

      It seems to me that, if you were starting from scratch, you might have three documents.

      One would record who gave birth to you. There would be one and only one name on it. It would be a historical record of who gave birth (and presumably who was pregnant.) For some research purposes this would be important to know and some individuals would undoubtedly like to have the information. I’d make a copy of this document available to the person who was born (when and how being other questions) but I don’t see why anyone else would have a general right to ask to see it. So for example, school district doesn’t need to see this. Doesn’t tell them anything they get to know. (except maybe birthday/age?)

      A second document might record genetic parents. Some questions here. If there were an egg donor or a sperm donor, are they listed by name or just noted as “unknown provider.” One female/one male here, though as I say they might not be known or identified by name. And as above–would make this available to person concerned but not to others. Soccer coach does not need to know genetic lineage. But this one could be of relevance for medical care, etc.

      A third document would record legal parents. And this one could change. (The other two couldn’t change, once you got the right info on them.) And this one is what the school or the soccer coach gets.

      Need I say that I would not call all three of these a birth certificate? Indeed, really only the first one seems like it should be called birth certificate.

      But this is theory or fantasy. It’s not what we do right now. And so one could have a different (and strategic) discussion about how to move from where we are.

      But notice I don’t dispute that at least some people will want some or all of of this information.

      • I like your theory/idea and agree it is a fantasy. As is the theory/idea that I linked to. I suspect what will happen is that ‘birth’ certificates will be reformed in FL in a similar way as CA. Listing only Parent 1 and Parent 2. Parenthood will be defined by intent within the marital presumption. But I think a case could at least be made to discontinue calling these documents ‘birth’ certificates. But rather parent/legal guardianship certificates.

  2. I think what you are saying is that a “birth” certificates, isn’t necessarily about genetics, but is rather a legal document issued by the state to help determine social and financial responsibilities of a dependent. But even if both genetic parents are listed it doesn’t necessarily mean that both have legal responsibility. In other words, it’s merely a formality that doesn’t involve necessarily genetics or legal guardianship …as far as the state is concerned. It’s pretty much meaningless. So isn’t it time for birth certificate reform? The adoption and ‘donor’ conceived community have been saying this for years…this isn’t Wendy Kramer’s original idea. https://www.donorsiblingregistry.com/blog/?p=618

    • I’m certainly saying that birth certificates are legal documents and not necessarily about genetics. Beyond that, I’m not sure I’m saying what you say. The fact that you are listed on a birth certificate doesn’t establish conclusively that you are a legal parent. You could have gotten there by mistake or trick or whatever. But presumably that isn’t common and so most people take a birth certificate at face value as proof that you are a legal parent. And, in general, same-sex parents not withstanding, if you ARE a legal parent you are entitled to have the birth certificate reflect that. If genetics has anything to do with it, it is because definitions of legal parent may turn on genetics.

      I know there are lots of suggestions/demands for birth certificate reform. I’m not sure many have gone very far. Perhaps the only other point I’d make is I wonder if it wouldn’t be most productive to move away from the term “birth certificate” towards some new and less loaded terminology–like certificate of genetic lineage or certificate of legal parentage? Otherwise you get these heated, but to my mind not terribly productive, arguments about who should be on the “birth certificate” and whether the “birth certificate” is accurate.

  3. Funny, I just made the same suggestion as you before reading this response – “Perhaps the only other point I’d make is I wonder if it wouldn’t be most productive to move away from the term “birth certificate” towards some new and less loaded terminology–like certificate of genetic lineage or certificate of legal parentage? “

    • The only hesitation that I have about all of this is that although society shapes laws, so do laws shape society. The underlying message may be (to some/many) that genetic mothers and more concerning, genetic father’s don’t matter. Only intent to parent matters. On the surface it sounds like this supports and promotes procreation and responsibility, but in practice, it promotes only intent to parent, not taking responsibility for our own sperm /egg when combined to create a new life. In combination with many other societal changes, I suspect that there will be an increase demand for “sperm donors”, “egg donors”, “surrogates” and an increase in social “fatherlessness”. But it is what it is.

      • I think we agree here–on two points. First, surely law shapes society even as society shapes law. The underlying messages do matter. particularly in the US, law has a lot of social power.

        Beyond that, I am also leery of a purely intent based system, though perhaps for different reasons. Intent is all too often a shifting thing. How many times have I intended to do something but failed to suit actions to that intent. Intent sometimes leads us to focus on some single magic moment, because intent changes over time sometimes. A couple may intend to coparent but then intent changes. Which intent controls? Why?

        In general if intent matches action, then I can be comfortable with it. But if the expressed intent is different from what people have actually done, I’d rather go with that.

        • Why not require adoption for unrelated spouses of bio parents ALL THE TIME rather than just some times? Well actually it is required all the time, they just get away with being named as parents some times. Quasi marital children is the term right? Not truly the children of the couple but just written down that way erroneously deliberate or not.

          • As a general matter, adoption is a process that makes someone who is not a legal parent into a legal parent. This means if you are a legal parent, you don’t usually have to adopt your child. (there is an important caveat for same-sex couples which isn’t relevant to this comment but MUST be borne in mind.) Unsurprisingly, it’s the law that defines who is/is not a legal parent. It may or may not have anything to do with genetics.

            Under most circumstances, a woman who gives birth is a legal parent. Thus, she does not need to adopt the child. In many states and under most circumstances, the spouse of a woman who gives birth is, by virtue of status as a spouse, a legal parent. Therefore no adoption is required. That’s what is going on in some of the cases we have talked about recently.

            No one is “getting away” with anything.

  4. “But if the expressed intent is different from what people have actually done, I’d rather go with that.” As you said, intent often changes over time. So an intent based ‘birth’ certificate system or rather a legal guardianship certificate system, should be a temporary document, that can change with intent? In other words, if one legal guardian fails at responsibility, they should be able to be replaced by another who might do a better job? This ultimately means nothing to the dependent, other than a legal document that proves authority over them.

  5. I don’t see how Florida can win this case, or why they’re even fighting it.

  6. I’m an advocate for a two page birth certificate where the first page lists the genetic parents and the second page lists the legal parents. In most cases the same two people will be listed on both pages. In the cases of adoption and third party reproduction the names will be different on the second page.

    The second page would be universally recognized as a document that can be used by itself for the child to be enrolled in school and other activities. Unlike with an Adoption Decree where in most cases additional paperwork is required.

    To me that system would provide the child and family with all of the information they need. Plus with it being universal everyone would be held to the same standard.

  7. My OBC only lists my mother because according to the laws of Wisconsin at the time of my birth father’s were not listed unless you married them!

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