Iowa Judge Upholds Marriage Equality in Birth Certificate Dispute

Finding that the Iowa Supreme Court's marriage equality mandate in Varnum v. Brien was intended to extend to all aspects of state law, Judge Eliza J. Ovrom of the Iowa 5th Judicial District Court (Polk County), ruled on January 4, 2012, that the same-sex spouse of a woman who had given birth to a child conceived through donor insemination was entitled to be listed as one of the child's parents on the child's birth certificate, with no need to adopt the child.  The ruling in Gartner v. Iowa Department of Public Health, No. CE 67807, ordered that "the Iowa Department of Public Health shall issue a birth certificate naming Melissa Gartner as a parent for the child Mackenzie Jean Gartner."

Heather and Melissa have been in a committed relationship since 2003, according to Judge Ovrom's opinion, and they held a commitment ceremony before family and friends in 2006.  Heather bore a son conceived through donor insemination in 2007, and Melissa adopted him in a second-parent adoption proceeding.  Soon after the Iowa Supreme Court's Varnum decision, Heather and Melissa legally married on June 13, 2009.  Heather was pregnant at the time, and gave birth to their daughter, Mackenzie, on September 19, 2009.  The mothers filled out the form to obtain a birth certificate, listing themselves as the parents of Mackenzie, but the Department of Public Health issued a certificate listing only Heather, leaving blank the other parent space on the form, and informing Melissa that she would have to adopt Mackenzie if she wanted to be listed on the girl's birth certificate.  Melissa sued the Department, represented by Lambda Legal.

The Department's position contradicts the well-established presumption that a child born to a married woman is also the child of her legal spouse.  Melissa is the "stay-at-home" mom while Heather is out working to support the family, and lacking a birth certificate listing her as a mother is a disadvantage in various ways enumerated by Judge Ovrom.  While Melissa could seek to adopt Mackenzie with Heather's consent, the question is whether they have to submit to a costly and time-consuming procedure and subject themselves to a judge's scrutiny of her suitability as an adoptive parent, when in fact she was married to Heather when the child was born and is regarded by Heather as an equal parent of their child.  (Judge Ovrom points out that this case is not about whether this child will be raised by a same-sex couple, but rather about the legal status of the relationship between the child and her second mother.)

The state's argument boils down to a literalistic reading of the statute, Section 144.13(2), which states that the Department shall place the "husband's" name on a child's birth certificate, unless "paternity" has been established otherwise.  The state argued that the court should defer to the Department's interpretation of the statute, which requires that any parent other than the birth mother's husband cannot be listed on the birth certificate other than through a judicial adoption proceeding. 

The Gartners argued, contrarily, that a gender-neutral construction of the statute is required pursuant to the Varnum decision.  Agreeing with them, Judge Ovrom wrote, "Varnum states that language in the Code of Iowa will have to be interpreted and applied to carry out the legality of same-sex marriage. 'Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.'" (emphasis in quoting from Varnum is supplied by Judge Ovrom). 

She pointed out various other sections of Iowa law that will also have to be given gender-neutral interpretations, such as the provisions concerning parental support obligations and presumptions of legitimacy.  "The Supreme Court in Varnum cited legitimacy of children born to married parents under Section 252A.3(4) as one of the benefits that was withheld from same-sex couples who could not legally be married," she continued.  "This is a strong indication that the Supreme Court intended married same-sex couples to have legal recognition that their children are legitimate and entitled to the support of both parents.  The Department's refusal to place Melissa's name on the birth certificate frustrates the purpose of the law to recognize the legitimacy of a child born to a marriage, and to establish the parents' obligation to support the child, as recognized in the Varnum decision."  And she pointed out that the same legal presumption of parenthood that has been applied in Iowa in the past when the mother's husband was "away at war and could not possibly have fathered the wife's child" should, by analogy, be approved in this case where it is clear that Melissa is not the genetic parent of the child.

This interpretation is required in order to accord gay people "full access to the institution of civil marriage," as commanded in Varnum.  "One important incident of the institution of civil marriage is a presumption that a child born during the marriage is the legal child of both parties to the marriage – regardless whether there is a biological connection to the other parent," thus Varnum requires that the same-sex spouse's name be placed on the birth certificate.  Judge Ovrom found that this conclusion is supported by the policy reasons underlying the presumption of parental status, and rejected the state's argument that the presumption is founded solely on the belief that the birth mother's husband is the child's genetic father.

She added, "An important fact in this case is that the child was conceived by use of in vitro fertilization with an anonymous sperm donor.  The Department's stated goal of naming the biological father of the child cannot be met, as there is no identified man who could be named as the father.  Paternity cannot be established here.  In addition, the Department argues that biological fathers could challenge its decision to omit them from birth certificates, thus leading to administrative inefficiencies.  Again, this cannot happen in this case, where the sperm is from an anonymous donor.  The court's holding is limited to the facts of this case."

The court's concluding comments are unfortunate, since they suggest that where there is a known sperm donor the court might have reached a different conclusion, although all of its analysis leading up to this point in the opinion would support a broader holding.  Presumably, however, where there is an agreement by which a known donor contracts to waive any parental rights, this should not be a problem.  Of course, a trial court ruling is not a binding precedent, but merely a disposition of the dispute as between the parties.  If the state seeks to appeal this ruling, it would be helpful for a binding appellate ruling to clarify this issue.

One suspects that this controversy over the birth certificate has its roots in the politics surrounding same-sex marriage in Iowa.  After the Varnum ruling, there was a political backlash in the state.  The subsequent election of a Republican governor who is hostile to same-sex marriage has incentivized state agencies to take the kind of position that the Department of Public Health took in this case.  There is a sense that a "holding action" is going on with respect to marriage, since the Republicans in the legislature, who control only one of the houses and are one vote short in the other, would like to put a measure on the ballot to amend the state constitution to overrule Varnum.  The trial court's opinion is largely true to the mandate of Varnum, a courageous position for an Iowa judge to take in light of the electoral blowback that unseated three of the Supreme Court justices who ruled in that Varnum (which was a unanimous decision) in their subsequent retention elections.

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