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IDPH intends to fight birth certificate court battle
In a statement released late yesterday, the director of the Iowa Department of Public Health said he would defend in court his agency’s decision not to issue a birth certificate to a Des Moines same-sex married couple that listed both spouses as parents.
“Based on guidance of the Attorney General’s Office, and our reading of both the Varnum decision and other Iowa statutes, the Iowa Department of Public Health will resist this lawsuit and continue to decline to issue a new birth certificate to the plaintiffs in this lawsuit,” Newton said, referencing the landmark 2009 Iowa Supreme Court case that struck down a state ban on same-sex marriage.
The lawsuit was filed Friday in Polk County District Court by Heather and Melissa Gartner on behalf of their infant daughter. The child was born last fall after the women entered into a legal, civil marriage. When their daughter was born, the women filed paperwork that listed them both as parents of the child, but the state provided a birth certificate that listed only the spouse who birthed the child. In order for the “non-birthing lesbian spouse” to appear on the birth certificate, according to the state, the woman would need to undertake a legal adoption proceeding.
In his statement, Newton notes that staff at the Iowa Department of Public Health have made changes in order to provide same-sex couples “full access to the institution of marriage” in the wake of the Varnum decision, but staff and legal counsel don’t believe current law requires or necessitates a change to the way birth certificates are issued.
“Iowa law currently provides that if a mother is married at the time of birth the name of her ‘husband’ shall be entered as the ‘father’ on the child’s birth certificate. This presumption of paternity is a long-standing statutory presumption recognizing that in most cases a woman’s husband is the biological father of the child and that birth certificates should reflect that relationship unless paternity has been otherwise determined by a court,” Newton said.
“It is a biological impossibility for a woman to be a biological father of a child, yet Plaintiffs contend that in all cases of children born to lesbian couples the non-birthing spouse should be entered on the birth certificate as the father with no notice provided to the biological father. While these Plaintiffs may have conceived using an anonymous sperm donor, clearly not all lesbian couples conceive in that manner, and the legal rights and duties of these biological fathers and their children remain in limbo unless an adoption has occurred.”
Despite the Varnum decision specifically referencing that “children of married parents [are considered] legitimate” as one of the government benefits withheld from same-sex couples in Iowa as a part of the ban, Newton and his agency do “not believe Varnum dictates that biological realities must be ignored or that the presumption of paternity must be stricken from the Iowa Code.”
Critics of the agency’s decision, however, are quick to point to instances where a woman undergoes artificial insemination due to her spouse, a male, being infertile. In those instances the state does not launch an investigation as to the true biological creation of the child in question, but automatically applies the presumption of paternity to the woman’s spouse.
“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,” Camilla Taylor, an attorney with Lambda Legal and a member of counsel for the Des Moines couple bringing the suit, told The Iowa Independent Wednesday for the exclusive article that broke this story.
“The purpose of spousal presumption of legitimacy — and Iowa’s birth certificate which 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.”
According to a letter sent via counsel to the Gartners by IDPH on March 17, the state is unwilling to interpret or view the obviously gendered writing of the existing Iowa Code on the issuance of birth certificates in a gender-neutral way:
Iowa’s vital records statute — chapter 144 — is replete with the “gendered” terms “mother” and “father”: the terms are utilized a collective 23 times in this chapter alone. Indeed there are over one hundred references in the Iowa Code to “mother” and “father” in various statutes which expressly recognize the biological reality that women and men each play a distinct but equally necessary role in human reproduction and have corresponding rights, duties and obligations to their child in absence of a termination of those rights. … Courts have recognized that certain statutory classifications by gender, such as “mother” and “father,” may survive an equal protection analysis where such classifications are based on “real differences.” … Hence we do not believe Varnum requires the gender-based terms “mother” and “father” to be stricken from section 144.13 or other statutes where such usages are a recognition of the biological roles each parent plays in the creation of a child and the rights and duties which flow from that act.
The state also acknowledges that there may be instances in which the presumption of paternity may result in the wrong male being listed on the birth certificate — such as in cases of artificial insemination or marital infidelity. Those instances, the state argues, can and do occur, but in the case of same-sex couples applying such a presumption of legitimacy to the child “would in every case result in naming a parent on a birth certificate who has no biological connection to the child.”
“The fact that in a small percentage of cases the presumption of paternity will result in listing the non-biological father on a birth certificate does not compel the result that the State Registrar must in every case of a child born to same-sex spouses list as a parent a person for whom it is a biological impossibility to father a child,” wrote Newton and Vital Record Bureau Chief Jill France in the March letter.
Any decision made in the court case will likely impact not only the Gartner family, but all such subsequent requests by legally married same-sex couples in the state.