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Unanimous Federal Appeals Court Rules Indiana Must List Lesbian Mothers on Birth Certificates

Posted on: January 20th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children.  Judge Frank Easterbrook wrote the opinion for the court.

The timing of this appeal made the outcome unsurprising.  In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates.  See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016).  Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples.  Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.

In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit.  But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date.  Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.

Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate.  Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.”  Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.

Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook.  “In its view, birth certificates in Indiana follow biology rather than marital status.  The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”

By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor.  Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.

That the argument is complete nonsense certainly did not help the state’s case.  Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement.  “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote.  “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing.  Others may name their husbands for social reasons, no matter what the form tells them to do.  Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.”  This is the presumption that the husband of a married woman who gives birth is the father of her child.  “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot.  Nothing about the birth worksheet changes that rule.”

The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate.  Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage.  But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?

The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold.  Yet again, the state’s insistence on perpetuating the former legal regime was rejected.

Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers?  Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother.  One set of plaintiffs in this suit shows this.  Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor.  Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother.  There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”

“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.”  Because the current statute does that, he continued, “its operation was properly enjoined.”

However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.”  For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.”  Easterbrook asserted that neither of these provisions violated the constitution.  “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.

“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded.  “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”

Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum.  The third judge on the panel, Diane Sykes, was appointed by George W. Bush.  Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents.  The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage.  After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.

Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms.  Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.

Second N.Y. Appellate Division Court Reaffirms Parental Rights of Married Lesbians

Posted on: February 21st, 2018 by Art Leonard No Comments

Following a precedent set on January 25 by the Albany-based N.Y. 3rd Department Appellate Division, the Brooklyn-based N.Y. 2nd Department Appellate Division issued a unanimous decision on February 21 ordering the dismissal of a sperm donor’s attempt to establish parentage and get legal visitation with a child born to a married lesbian couple.

As in the earlier case, Christopher YY v. Jessica ZZ & Nichole ZZ, 2018 WL 541768, 2018 N.Y. App. Div. LEXIS 489 (3rd Dept.), the sperm donor in this case, Joseph O. v. Danielle B. & Joynell B., 2018 WL 988920 (2nd Dept.), was not seeking custody but wanted legal acknowledgment of his biological parentage of the child and the legal right to visitation with the child.  Following the earlier ruling, and overruling Orange County Family Court Judge Victoria B. Campbell, the 2nd Department panel found that the principal of “equitable estoppel” barred Joseph O.’s lawsuit, even though the parties did not comply with a provision of the Domestic Relations Law, Section 73, which that would have created an “irrebuttable presumption” that the married couple, Danielle V. and Joynell B., are the only legal parents of the child.

The Domestic Relations Law provision was adopted years ago in response to the growing practice of donor insemination, for the purpose of assuring that when a married different-sex couple has a child using donated sperm, there will be no question that the mother’s husband is the parent of the child, who will be considered the legitimate offspring of their marriage. It provides that when the procedure is done by “a person duly authorized to practice medicine,” there is an “irrebuttable presumption of legitimacy” of the child, barring the sperm donor from any attempt to establish legal parentage or seek custody or visitation.

Unfortunately, the legislature has not revised the statute to reflect the existence of same-sex marriages, and many lesbian couples using donor insemination to conceive children don’t involve doctors in the procedure, which can be easily accomplished by the couple at home without professional assistance. In this case, Danielle and Joynell married in Connecticut in 2009 and used the Internet to find Joseph O., a sperm donor who was willing to agree in writing that he would have no parental rights or responsibilities.  They had a three-party written agreement to that effect.

The child was born in April 2012. According to the mothers, they had only sporadic contact with Joseph, who saw the child a few times each year since her birth, including some birthdays, but who was not treated as a father and not recognized as such by the child.  The two women were identified as the child’s parents on her birth certificate.

Claiming that his main purpose was to assure that he would have a continued right to visit with the child, Joseph filed suit in Orange County Family Court in September 2015, naming Danielle, the birth mother, as respondent. This lawsuit was dismissed on the ground that Joynelle should have been named as a “necessary” party, since she is also a legal parent of the child.  Joseph filed a new lawsuit in June 2016, naming both mothers as respondents, and seeking two things: legal visitation rights, and a declaration that he is the father of the child.  Joseph claimed that he had an established relationship with the child and that it would be in the child’s best interest for him to have visitation rights.

Danielle and Joynell moved to dismiss the case, claiming that there is a presumption of legitimacy of the child, both under New York common (non-statutory) law and under the Domestic Relations Law provision governing donor insemination. They also raise the argument of “equitable estoppel,” claiming that Joseph had no meaningful relationship with the child and, in any event, had waited too long to assert parental rights – more than three years since the child’s birth.

Family Court Judge Campbell appointed an attorney to represent the child’s interest, Kelley M. Enderley of Poughkeepsie, who sided with the mothers, affirming that “the child recognized only the respondents as her parents.” In an affidavit they filed in support of their motion to dismiss Joseph’s case, the mothers emphasized the limited contact they and their daughter had with Joseph, that he had seen the child only “sporadically,” and that the child did not recognize him as “anything other than an acquaintance of the family.”

Nonetheless, Judge Campbell denied their motion to dismiss, finding based on Joseph’s allegations of biological parenthood that the burden was on the mothers to show it was not in the child’s best interest to have a paternity test ordered to confirm that Joseph is her biological father or to have an “order of filiation” establishing his legal parental status. According to Judge Campbell, by allowing Joseph to have contact with the child over the time since her birth, the mothers had lost entitlement to the “presumption of legitimacy” of the child, and the question of equitable estoppel required a trial.

The Appellate Division found these rulings to be erroneous. Although the parties had not complied with the donor insemination statute, the court followed the earlier 3rd Department ruling holding that the statute was “not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”  More importantly, the court reaffirmed the emerging consensus among New York courts that married lesbian couples who have children through donor insemination are entitled to enjoy the presumption – codified elsewhere in the state’s Domestic Relations Law and in the Family Court Act – that the child is the legitimate child of the birth mother and her wife.

Although that presumption is not irrebuttable, an attempt by the sperm donor to rebut it may be blocked under the doctrine of equitable estoppel to “preserve that status of legitimacy for the child” under the circumstances presented in this case, in order to “protect a child’s established relationship with another who has assumed the parental role” – that is, Joynell, the wife of the child’s birth mother.

Here, all the facts came together to support dismissing Joseph’s case. He agreed when he donated his sperm that he would not seek any parental rights, he was not named on the birth certificate, and although he was certainly aware of the child’s birth, he did nothing to assert his legal claim for more than three years.  “During that time,” wrote the court, “the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her.”

By contrast, although Joseph has had occasional contact, he can’t claim to have developed a parental relationship with the child, and he “acknowledges that he does not actually seek a parental role,” he is just interested in making sure that he has a legal right to continue seeing the child, in case her mothers decide to deny him access.

“Under the particular circumstances presented here,” wrote the court, “it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner to take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure.”

Thus, the Family Court should have granted the mothers’ motion to dismiss both of Joseph’s requests – for an order of filiation and for visitation rights – since “it has long been the rule in this State that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child,” and Joseph is not a legal parent. This last quotation is from the state’s highest court, the Court of Appeals, in its important ruling, Brooke B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), recognizing the parental rights of same-sex couples.

The Appellate Division Justices on the panel that decided this case are Reinaldo E. Rivera, L. Priscilla Hall, Betsy Barros, and Valerie Brathwaite Nelson.

The mothers are represented by The Kurland Group (Yetta G. Kurland and Erica T. Kagan) and the LGBT Bar Association of Greater New York through its Legal Director, Brett Figlewski.  The American Academy of Assisted Reproductive Technology Attorneys filed an amicus brief written by attorneys from Seyfarth Shaw LLP and Rumbold & Seidelman LLP.  Joseph O. is represented by Paul N. Weber of Cornwall, New York.