Once Again–On Birth Certificates

In the past, the question of birth certificates (what they say/do not say) has been extremely controversial here.  I suppose what this means is that it is controversial out there in the world.    I didn’t really plan to address this topic quite yet, but as it is in the news, here goes.

Today The New York Times reports an important decision from a judge in Texas.  In some ways the topic may seem far afield as this is really an immigration issue.    It seems that Texas decided to require very specific documents in order for women giving birth there to get a birth certificate.    This mean that those who did not have proper documentation of legal entry into the country couldn’t get birth certificates.   Forms of identification that had been accepted were being rejected.   (So you had been able to get a birth certificate with a passport, but then it changed so that you could only use a passport if it had a valid US visa.)

The point of this policy was to make it difficult (if not impossible) to get birth certificates for the children being born in the US.   These children are US citizens,  because the US law says that anyone born the US is a US citizen.   (Not all countries have this law, but the US does.   This is NOT a topic I’m planning to discuss here.  It’s just what US law is and has been.  Nothing new about it.)

So if I’m not writing about immigration (and I’m not) why does this warrant note here?   Because of this sentence, taken from the middle of the article:

Parents said they could not obtain the required documents. They had not been able to baptize their children, enroll them in school or sign them up for public health programs so they could be vaccinated. With no legal document proving the babies were their children, parents feared that if they were deported, their families might be separated or that the children might not able to return to the only country where they were citizens.

Now I have to say, this is rather poorly written?   What are the “required documents” in the first sentence?  Fairly read it might be the forms of identification that Texas now requires to get the birth certificate.   But I think it really means that parents couldn’t get birth certificates for their children.   That does seems to be the whole point of the decision, after all.

And again–why recite all this here?  Because it shows why birth certificates matter.  Without a birth certificate, parents couldn’t enroll their children in school or sign them up for public health programs or prove that the children had been born in the US.

For better or for worse, we (in the US and in Texas) use birth certificates for a lot of different things.   And so parents need to have them and need to be listed on them.

And here is what has made them controversial in the world of ART as well as adoption.  Birth certificates show legal parentage.  They identify the person who can sign the child up for school or authorize vaccines.   That means new birth certificates are issued upon adoption.   And birth certificates do not list genetic parents who are not legal parents–those who provide gametes for ART, say.

I understand that for many people this means that birth certificates lie.   They do not tell the truth of your birth.   (Though come to that, it seems to me the “truthful birth certificate” would only list the name of the woman who gives birth.)

It wouldn’t be impossible to change things around so that birth certificates listed genetic parenthood (which never changes) and that some other official document listed legal parents. Perhaps it would be better.   But the thing to understand is that it would be a big change.   Right now we use birth certificates for many different purposes, and for some of them, they have to show legal parentage.  And legal parentage can and does change.

By the way, without meaning to open another large topic, there’s also a debate about the maker for sex/gender on a birth certificate.   Many states allow transpeople to change the marker as they transition.   Many other states do not.   As with listings for parents, the question is really about what those markers mean–what they tell us.  And again, until you think about how birth certificates are used, you cannot think about whether they should be altered.

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6 responses to “Once Again–On Birth Certificates

  1. Well we have the option of guardianship, but guardianship ends upon death of the adult caring for the child. Instead adoption that requires an emended/change in the birth certificate. With guardianship there is no change of the birth certificate. This creates legal difficulties. Because it may not be in the best interest for the child to be immediately go back his/her parents. This is why DCF tries not to use guardianship as an option. We strive for permanency at a certain point.

    I am not an ultra liberal when comes to undocumented individuals within the United States, but my BIGGEST concern isn’t a birth certificate for school and such rather without any form of documentation for a child, the child more or less doesn’t exist (off the grid) and such children could be easily be exploited! Living in a community with a significant population of undocumented/not properly documented individuals that come here legally and over stay (to work, not cause trouble) I do fear for their well being.

    That’s scary.

  2. About guardianship: There are certainly ways legal parentage can be established without a birth certificate–guardianship papers being one of them. But the generally expected document in our world is a birth certificate. There are some much earlier posts here about how you could create a series of documents–one might be a document showing legal parentage, a second might be a certificate of genetic lineage and a third might be a document stating who gave birth to you. Each document would have its own uses and only the first would ever need to be changed.

    But that is not what we do and I’ve never seen any serious suggestion that we have something like pedigree papers for children. As long as birth certificates are the primary document used for a variety of purposes, we’re going to end up with an odd set of rules about things that change/things that do not change.

    • Agree Julie that the issue is that the birth certificate is recognized as the universal standard as a single document.

      On Guardianship I thought the relationship terminates once the child turns 18 and that there is never a legal familial relationship but rather one that states who is the legal caregiver for that person. Am I wrong?

  3. In Massachusetts we still have the assumption of paternity, based solely on marriage. And this is where things got well strange, and logical at the same time when applying the law. I could be carrying another man’s baby, and my husband is on the birth certificate withOUT question. So if I was married to a woman, and gave birth she would be on the certificate withOUT question.

    Now if the child was conceived by the conjugal act (by default sex with a man), the court can do something to correct the birth certificate whether I was married to a man or woman.

    Rather then changing birth certificates, we could remove the assumption that marriage equals legal parent instead. Married or not, fathers need to sign the Affidavit of Paternity. I guess a woman could sign the affidavit, and be the putative parent. But at least the affidavit can be challenged it is a document that is on file, unlike sperm donation used by a married couple(straight or gay) or single person nothing is on file.

    With surrogacy a private company is holding identifying information with no obligation to safe guard or preserve that information, to the person who has right to it because that person (the adult child) was not the beneficiary or party of the contract. The child is the product of the contract.

    But with donation and surrogacy, there nothing the court can do. Even with private adoption, there is a at least one court appearance. But with third party procreation there is none. The couple that can pay to contract our sperm, eggs, and a woman to carry a child, walks away with baby and no legal questions are asked about the rights of the child.

    Amazing what money can do.

    • Ah–the marital presumption. That’s been a huge topic here. Major issues all around. On the go right now but more on this, soon.

    • Yes and no. The presumption is of paternity not matrimony. The state presumes that a woman’s husband is the father of her child born during marriage because he is a male that has access to her body 9 months prior to the birth since they hold joint property. Her husband can contest the presumption with proof to the contrary like a doctors note saying that he’s sterile or with proof he was out of the country on business when she got pregnant. So the truth is supposed to matter here. Sure he could be in on the lie, like when a woman has a baby with a sperm donor, but the state can’t do anything about the lie unless someone draws their attention to the lie.

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