New York Law School

Art Leonard Observations

Posts Tagged ‘same-sex spouses of birth mothers’

Federal Judge Orders Indiana to List Two Moms on Birth Certificates

Posted on: July 1st, 2016 by Art Leonard No Comments

U.S. District Judge Tanya Walton Pratt ruled on June 30 that Indiana was failing to comply with the Supreme Court’s mandate for marriage equality in Obergefell v. Hodges, decided last June 26, when the state refused to list the same-sex spouses of birth mothers on their children’s birth certificates.  Ruling on cases brought by several same-sex couples who were married before their children were born, Judge Pratt found that the mandate to afford equal marriage rights to same-sex couples included a requirement that the “parental presumption” applied to husbands of women who give birth should also be applied to their wives.  Henderson v. Adams, 2016 U.S. Dist. LEXIS 84916 (S.D. Ind.).

Judge Pratt explained that the usual procedure in Indiana for issuing birth certificates starts when hospital staff “work with the birth mother to complete the State of Indiana’s ‘Certificate of Live Birth Worksheet,’” which was created by the state as part of its Birth Registration System.  “Staff at the hospital upload the information provided on the Indiana Birth Worksheet to a State database.  The county health department then receives notification that birth information has been added to the database.  A notification letter to the birth mother is generated on a form provided by the State, which indicates that information has been received by the county health department and requests that the mother notify the county health department if there is an error with respect to the child’s identifying information.”  If the mother wants a birth certificate, she has to request one, which will then be generated out of the database.

One of the questions on the Worksheet is whether the birth mother is married.  If she answers “no,” she is asked whether a paternity affidavit has been completed for the child, in which case the person identified as the father will go into the database and be listed on the birth certificate.  If there has been no affidavit, then the space is left blank, even if the mother knows the identity of the child’s biological father, and the birth certificate will list only the mother.  If the answer is “yes,” the husband’s name will go into the database, and ultimately will be listed on the birth certificate.  Even if the child of a married couple is conceived with donated sperm, there is a presumption that the husband is the father, unless the mother takes steps during this initial information-gathering process to make clear that her husband is not the biological father.

Even though all of the plaintiff couples in this case are married, the state refused to accept same-sex spouses into the database or to list them on the birth certificate.  The state’s position was that the database and the birth certificates generated from it are supposed to create a true record of the biological parentage of the child, and that because a same-sex spouse of a birth mother is not biologically related to the child, listing her in the database and on the birth certificate would create a false record.  The state took the position that a same-sex spouse could only be listed in the database and the birth certificate if she adopted the child with the permission of the birth mother, a process involving expenses and delay, during which time the child would have only one legal parent.

Judge Pratt accepted the plaintiffs’ argument that “Indiana’s refusal to grant the status of parenthood to female spouses of artificially-inseminated birth mothers while granting the status of parenthood to male spouses of artificially-inseminated birth mother violates the Equal Protection Clause,” because it was sex discrimination, pure and simple.

Furthermore, sex discrimination requires heightened scrutiny, putting the burden on the state to justify its policy and show that it advances an important state interest.  Because the state presumes, without proof, that the husbands of birth mothers are the parents of their children, the policy does not, in fact, advance the state’s asserted interest of creating a “true” record of the child’s biological parents.  The state argued that it was the duty of the married birth mother to advise hospital staff while completing the Worksheet if her child was conceived through donor sperm so that her husband’s name would be excluded from the database, but this was clearly a spurious argument, since the Worksheet does not prompt hospital staff members to ask this question.

“The State Defendant’s argument that the birth mother should acknowledge that she is not married to the father of her child when she has been artificially inseminated or else she is committing fraud when she has been artificially inseminated is not consistent with the Indiana Birth Worksheet, Indiana law, or common sense,” wrote Judge Pratt.  “The Indiana Birth Worksheet asks, ‘are you married to the father of your child,’ yet it does not define ‘father.’  This term can mean different things to different women.  Common sense says that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception, and who intends to treat the child as his own, would indicate that she is married to the father of her child.  Why would she indicate otherwise?”

Judge Pratt pointed out that the Worksheet, devised by the state, made no attempt to elicit the information that the State deemed to be so important, and, furthermore, “there is no warning of fraud or criminal liability.”  She pointed out that some other states had enacted specific statutory language to deal with the use of donor insemination by married couples and the issuance of appropriate birth certificates, but Indiana has failed to do so.  She pointed out, however, that in one such state, Wisconsin, litigation is pending because that state has also been refusing to list same-sex spouses on birth certificates.

Ultimately, she pointed out, the Worksheet process as set up by the state did not achieve its articulated purpose of creating a “true” record of biological parents, and was administered in a way that clearly discriminated against same-sex couples.  Rejecting the state’s argument that employing a parental presumption was not required under Obergefell’s mandate of equal marriage benefits, she pointed out, “the state created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child’s birth certificate even when the husband is not the biological father.  Because of Baskin [the 7th Circuit’s marriage equality ruling] and Obergefell, this benefit –which is directly tied to marriage – must now be afforded to women married to women.”

In addition to finding an equal protection violation, Judge Pratt found a Due Process violation because in Obergefell the Supreme Court referred to both clauses of the 14th Amendment as a source of the freedom to marry.  Since the Supreme Court identified that freedom as a fundamental right, strict scrutiny would apply, and the state’s rationale for its position of this case was obviously insufficient to meet the “compelling interest” test, and Judge Pratt so found.  The judge concluded: “Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana Legislature has stated the purpose of Title 31 is to protect, promote, and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment for female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers.  As other district courts have noted, the holding of Obergefell will inevitably require ‘sweeping change’ by extending to same-sex married couples all benefits afforded to opposite-sex married couples.  Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this action.”