Thursday, January 12, 2012

Iowa birth certificate case limited to children of unknown donor insemination

Congratulations to Lambda Legal for its initial success in Gartner v. Newton, the case challenging Iowa's refusal to list Melissa Gartner, wife of Heather Martin Gartner, as a parent on the birth certificate for Mackenzie Gartner, who was born to Heather after she and Melissa married.  The state can appeal the ruling if it chooses.

The state's position was that the statute requiring the listing of a husband as the father of a child born to his wife should continue to be read in a gender-specific manner.  The state argued that at least 90% of the time this rule produces a birth certificate with the names of the child's two biological parents.  Applying such a rule to a same-sex couple, the state argued, would produce a biologically accurate birth certificate 0% of the time.

The trial court ruled that the purpose of the birth certificate is not the creation of a biologically accurate record.  I certainly agree with that. In fact, what I like best about this opinion is that it says the presumption that the spouse is the other parent of the child is based on protecting the "integrity of the family" regardless of biological connection.

But there are some troubling aspects to the ruling as well.  The court notes that the Varnum opinion (establishing the right of same-sex couples to marry) cited one of the benefits of marriage as the legitimacy of children.  Refusing to put Melissa's name on the birth certificate, the court said, frustrated recognition of the child's legitimacy.  The court also relied on a 1945 Attorney General's opinion that a married woman's husband must be on the birth certificate even if he was away at war, the mother had an extra-marital affair, and she and the biological father wanted that man's name on the birth certificate.  But the denomination of any children as "legitimate" inherently conveys that some children are "illegitimate," and that is unacceptable.  Consider this language that the court cites from a 1933 case:  "The presumption of paternity 'is founded on decency, morality, and public policy.  The child is...safeguarded against future humiliation and shame..."  This language makes me cringe; it recalls a time when a nonmarital birth carried life-long stigma for the mother and the child.  There is nothing to be happy about when such thinking creeps into reasoning about our families.

And here is the kicker, something that news coverage of the case decision omitted.  The ruling is limited to births where conception has occurred through anonymous donor insemination.  The court says that explicitly.  It won't help couples who conceive with a known donor or where conception occurs through sexual intercourse.  Implicitly, the ruling credits Iowa's argument that the state's asserted interest in identifying the biological father could prevail in those forms of conception.

This highlights how little was really at stake in this case.  A name on a birth certificate does not prove parentage.  It is certainly evidence of parentage, and if no court dispute arises Melissa should be able to use the birth certificate with her name on it to show she is Mackenzie's mother.  But this court was unwilling to give even a birth certificate to a lesbian spouse if there might be a man who could assert rights based on biology.

What Iowa needs is a parentage statute that would protect all lesbian couples, without regard to method of conception and without digging into the despicable ideology of "legitimacy" and "illegitimacy" that we are all well rid of.

1 comment:

Martha & Doug said...

I'm sorry I'm late to comment. I came across your post recently while thinking about what to tell clients about the significance of this decision.

Some have the belief that this decision avoids the need for a stepparent adoption by the spouse of the biological parent and resist a contrary opinion, perhaps because I'm recommending a legal procedure that will cost money, perhaps because the simplicity and "rightness" of the birth certificate entry is appealing.

I agree with you that this decision only reaches cases of an anonymous donor. In cases of a known donor, the donor has a biological parent-child relationship with the child that has legal significance and in my opinion can't be terminated without due process -- certainly can't be terminated on the strength of a clerical entry on a vital statistics form. Over the course of the child's minority that relationship might prove troublesome if circumstances change and for some reason the donor decides to assert parental rights. After the child attains majority, that relationship might interfere with inheritance.

I also have this concern: even if the biological father (known or anonymous) is no problem, in the event of death of the biological parent, Iowa is one of the majority of states that prefer the appointment of a relative as guardian and/or conservator when such an appointment is necessary. It's not hard to imagine the parents of a deceased biological parent attempting to have themselves appointed for the surviving child, particularly if they had objections to the same-sex relationship, and asserting that they are preferred because the birth certificate is inadequate to establish a legally recognized relationship. True, the preference can be overcome if the evidence is right, but who wants to spend years in litigation and appeal at such a time?

The relationship is too important and the risk is too great. Adoption is still necessary.


Doug Henry, Dubuque