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.
Showing posts with label birth certificates. Show all posts
Showing posts with label birth certificates. Show all posts
Monday, December 10, 2012
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.
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.
Sunday, February 13, 2011
Two moms on Maryland birth certificates...not the victory it might sound like
Lambda Legal announced on Friday that Maryland has agreed to put the names of two women on a child's birth certificate if the women are married. That might sound good, but there's a lot wrong with it.
Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.
Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.
And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.
In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.
While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.
If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.
This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.
In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.
Maryland has very bad law on parentage of the partner of a woman who gives birth. (Read my post on the relevant case here). Last year, supportive Maryland legislators were on track to enact a law creating "de facto" parentage as a fix to that dreadful case, but late in the process, after hearings, they stopped their effort out of fear that anti-gay legislators would try to hijack the bill with an amendment banning recognition of the marriages of same-sex couples performed in other states and DC. I wrote about my distress about marriage politics derailing protection for Maryland's children here. This year, they actually held off entirely on "de facto" parentage legislation to focus on a marriage bill. Hearings on that bill were held last week.
Now comes word for lesbian couples only if they marry, that the state will give their child a birth certificate naming two parents. Under Maryland law, "a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes." If a court would apply that rule to a married same-sex couple, then they will also both be parents, but this birth certificate change does not guarantee that.
And even if it did, dividing the children of Maryland into those who have two parents and those who have one based on whether their parents are married is wrong. Just plain wrong. We stopped doing this for children of heterosexuals over 40 years ago, and we should not travel down that road for our children. Not even one step. Efforts like this are the reason I've spearheaded a conference that American University Washington College of Law will host next month on The New "Illegitimacy": Revisiting Why Parentage Should Not Depend on Marriage.
In addition, a birth certificate does not prove parentage. Lambda's announcement tells couples they should still pursue adoption. But if the couple uses step-parent adoption (and opposed to second-parent adoption), the family could still be in trouble in other states. Without an adoption, any state that refuses to recognizes the couple's marriage may well refuse to recognize the nonbio mom, since her parentage derives from the marriage. And if she is a parent through step-parent adoption, that status also depends on the couple's marriage and makes the family vulnerable elsewhere.
While I am certain gay rights lawyers will argue for recognition of the parentage of both women elsewhere, this is all a lot of effort to benefit only children with married lesbian parents. Revising Maryland's donor insemination statute to be marital-status and gender neutral would help more families and would create parentage that is less vulnerable to attack elsewhere because it does not depend on a state's willingness to recognize the couple's marriage.
If you followed the law we enacted in DC two years ago, you know that we have such a statute here. Many lesbian couples who live in Maryland have given birth in DC so that their child can have a birth certificate listing both moms. And the status of the second mom is not dependent on the couple's marriage. The one good development about Maryland's new birth certificate procedure is that it makes me secure that Maryland will recognize the dual parentage conferred by the DC law, because it clearly is not against Maryland public policy for a child to have two mothers.
This is complicated stuff. Lesbian couples having children should meet with a lawyer who really understands the options.
In the next couple of weeks there will be committee and floor votes on marriage in the Maryland General Assembly. But it looks like the children of Maryland's same-sex couples are going to have to wait at least another year to get the laws they need to protect their economic and emotional security.
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