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Same-sex couple sues state for right to appear on daughter’s birth certificate
The State of Iowa has no right to prevent a child, born in wedlock, from having the benefit of both parents being named on her birth certificate. That’s the crux of a lawsuit filed in Polk County District Court by a Des Moines couple on behalf of their infant daughter.
Heather and Melissa Gartner, who filed the lawsuit, have been in a committed relationship since 2003. Prior to an Iowa Supreme Court ruling that struck down the state’s ban on same-sex marriage, the women had jointly parented a son. In order to legally establish her parental rights at that time, the non-birth mother went through the process of legally adopting the boy. A subsequent child, a daughter, was born last fall after the couple had entered into a legal, civil marriage in Iowa.
Although the women filed the appropriate hospital paperwork at the time of the birth, and indicated that they both should be listed as parents on the child’s birth certificate, the state refused and listed only the mom who actually birthed the child, leaving the other parental line blank.
“Iowa stands alone in this,” said Camilla B. Taylor, an attorney with Lambda Legal who was one of three attorneys to file the lawsuit on behalf of the Gartners and their daughter. “I think this is just an error that will be cleared up shortly. Every other state that has allowed same-sex couples to marry or enter into civil unions has applied the spousal presumption of parentage equally to the children of same-sex couples. So, to my knowledge, this has never happened before.”
According to the Code of Iowa, a child or children born to parents who have taken part in a religious or civil marriage ceremony — or even to couples who have only lived as if they were married in a common-law situation — is “deemed the legitimate child or children of both parents.” In fact, the Iowa Attorney General has opinions dating back as far as the World War II era that establish a spouse as the appropriate name to be placed on a child’s birth certificate, even during circumstances where the spouse’s absence precluded an ability to have provided biologically to the creation of the child — a situation known legally as spousal presumption of parentage or presumption of legitimacy.
The nation’s first state to permit same-sex couples to marry was Massachusetts under then-Gov. Mitt Romney. The state immediately applied the spousal presumption of parentage to children born to married same-sex couples. There has also never been a lawsuit or issue with respect to children born to married same-sex couples in Connecticut or Vermont. Even the high court in New York, a state that has not legalized same-sex marriage, recently granted “legal parent” status to a woman who was one party in a civil union that had been established in a different state.
Upon receiving a birth certificate that did not contain both of their names, the Gartners requested that the state agency responsible make necessary corrections. On March 10, the couple received correspondence from the state denying the request. The state said it would not place the “name of a non-birthing lesbian spouse” on a birth certificate as the child’s second parent unless she first adopted the child.
According to the correspondence, the state based its refusal on its belief that “[t]he system for registration of births in Iowa currently recognizes the biological and ‘gendered’ roles of ‘mother’ and ‘father,’ grounded in the biological fact that a child has one biological mother and one biological father.”
The state also claimed that Iowa’s birth certificate statutes “expressly recognize the biological reality that women and men each place a distinct but equally necessary role in human reproduction and having corresponding rights, duties and obligations to their child,” and that such gendered “rights, duties, and obligations” are constitutionally permissible under Iowa law because they reflect “real differences” between men and women.
The lawsuit was filed specifically against Tom Newton, director of the Iowa Department of Public Health, and Jill France, bureau chief of vital records and health statistics at the Iowa Department of Public Health. A decision in the case, however, won’t just impact the Gartners.
“[W]e have been approached by numerous couples,” said Taylor, who could not offer an exact number of legally married Iowa couples who had been unable to secure a birth certificate with the names of both spouses from the department.
“Varnum makes it clear that children of same-sex couples are entitled to birth certificates naming both spouses as their parents — just as children of different-sex couples are entitled to those birth certificates,” Taylor said in reference to the landmark Iowa Supreme Court decision from April 2009. “The purpose of spousal presumption of legitimacy — and Iowa’s birth certificate which reflects the presumption — has always been to protect children from the historic stigma of what was termed ‘illegitimacy’ or ‘bastardy.’ It is a child-centered rule and the State of Iowa on a number of occasions has made clear in opinions by the Attorney General — dating all the way back to World War II — that Iowa’s birth certificate rules are not about determining genetic parentage, but are about protecting children and their relationships to two people — the spouses, who are most likely to be the people the child considers to be parents.”
In determining Varnum, the Iowa Supreme Court noted that that the then-existing ban on same-sex marriage “certainly … causes numerous government benefits … to be withheld from plaintiffs.” A footnote directly following that sentence adds that more than 200 Iowa statutes had been impacted by civil-marriage status, pointing to “children of married parents legitimate” specifically.
“They have branded [the Gartners' daughter] as a child of unwed parents on her birth certificate,” Taylor said. “Iowa law makes it clear that when a birth certificate names only one parent that the child is, quote, illegitmate under Iowa law.”
Counsel for Newton and France have not yet responded to the lawsuit, and still have several days in which to do so.