I've covered Gartner v. Iowa Dept. of Public Health since its inception, with a fair amount of criticism. This is the case filed by Lambda Legal challenging Iowa's refusal to put the name of a birth mother's same-sex spouse on a child's birth certificate. The challenge was successful at the trial level (limited to children born of unknown donor insemination, as I discussed in my prior post). Tomorrow, Tuesday, December 11, oral argument in the case will be heard by the Iowa Supreme Court. The court live streams its oral arguments, so you can watch it here. The case is on the docket for 1:00 pm Central time, but it is the second of three arguments scheduled at the time so it may begin later in the afternoon.
The state's briefs make clear that its position is that Melissa Gartner is not the mother of Mackensie, the child born to her same-sex spouse, Heather. So the case is not just about the birth certificate; it is about parentage. The state has nothing against same-sex couples raising children; it just believes that Melissa must adopt Mackensie to be her mother. Now the truth is that LGBT legal groups have been urging married nonbiological mothers to complete second parent adoptions, even if their names appear on their child's birth certificate. That's because parentage derived from marriage is vulnerable in states that don't recognize those marriages. (Here's an example from GLAD). In Gartner, Iowa is using that advice to support its position. Because Gartner's parentage is vulnerable without an adoption, the state says, it's appropriate to require adoption, as that's the only way to really protect Mackensie.
Iowa argues that placing a husband's name on a birth certificate reflects the likelihood that he is the biological father, something that will be true, it estimates, 95% of the time. The state claims the birth certificate information is used for various public health purposes and that its purpose is to record biological parentage. If it is actually true that 5% of Iowa births to married mothers are for children not biologically related to her husband, then there are far more such children than children of lesbian couples. So the biology argument really does not ring true. (And Iowa doesn't ask if a mother conceived with a donor egg, so a child may not be the genetic child of the woman who gives birth).
Iowa is the only state allowing same-sex marriage (or DP/civil union) that refuses to place the married/DP'd/CU'd nonbio mom's name on the birth certificate. But -- and this is the hardest fact for nonlawyers to grasp -- the birth certificate does not prove parentage. It is evidence, and it generally creates a presumption, but it does not make someone a parent. Legal parentage is dependent on parentage law, not birth certificates or birth certificate law. So, if a state's law allows a parentage presumption to be rebutted based on biology, a mother's female spouse, even if she is on the birth certificate, may find herself not a parent.
A number of family law professors, myself included, filed a friend of the court brief arguing that Iowa law does not permit automatic rebuttal of the presumption of "paternity" if the husband is not the biological father. That should entitle a female spouse also to be a presumptive parent. I joined this brief because equating parentage with biology is the wrong principle, and I oppose the state for taking that position. But, and this is a big but on my part, and it's what I discuss in my prior posts, a win in this case will help only children of married lesbian couples in Iowa. It will mean that Iowa joins New York and Massachusetts in discriminating based on the marital status of a child's lesbian parents, something I abhor.
The best law reform for children of LGBT couples tracks something like the Uniform Parentage Act, with certain modifications. I've written here about how DC does it. California courts have done a great job of interpreting its older version of the UPA. Functioning as a parent creates a presumption of parentage. Delaware defines parentage to include de facto parents. These have nothing to do with the marital status of a child's parents. I wish Lambda had worked with family law practitioners and professors in Iowa on legislative reform not limited to LGBT families, and certainly not limited to children of married lesbian couples. The legislature may not be LGBT friendly, but that need not get in the way of parentage law reform, something Iowa desperately needs.
Whatever happens in Gartner, I hope that will come next.
