It’s hard to believe that nearly five years after federal marriage equality, we’re still seeing courts having to determine if same-sex married parents may both be on their children’s birth certificates. At least this recent decision in Indiana was a positive one.
In a decision issued Friday, the 7th US Circuit Court of Appeals upheld a lower court ruling that said Indiana could not refuse to put both same-sex spouses on the birth certificate of a child born to one of them. The case had been brought by eight same-sex couples, including one that had done reciprocal IVF (one parent’s egg; the other’s womb) and could not put the genetic, nongestational mother on the birth certificate. Another couple had twins who had died within hours of being born prematurely; the hospital would list the nonbiological parent on their death certificates, but not their birth certificates.
A federal district court ruled in June 2016 that the state must include nonbiological parents on birth certificates, but the state appealed the decision. The appeals court then took an appalling 32 months to issue its ruling. As Mark Joseph Stern wrote at Slate recently, “It is extremely unusual for a federal appeals court to take this long—or anywhere near this long—to issue a ruling. The average gap between argument and decision on the 7th Circuit is about three months, and the court almost never takes longer than a year to decide a case.” He opines that “the panel may have dragged its feet because it contemplated asking the Indiana Supreme Court to clarify technical questions of state law. But the panel decided against it because no court could ‘save the state statutes by rewriting them,'” as the eventual decision said.
A state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.
That decision, though slow in coming, was emphatic. The three-judge appeals panel wrote, “We agree with the district court that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages…. The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed.”
Obergefell is the landmark 2015 U.S. Supreme Court decision that legalized marriage for same-sex couples nationwide; Pavan is the 2017 case in which the U.S. Supreme Court overturned the Arkansas Supreme Court in upholding the right of nonbiological mothers to be on the birth certificates of children born to their spouses.
The appeals court also observed that state law has been slow to catch up with the reality of same-sex parents, writing, “All of the contested statutes were enacted long before Obergefell and Pavan. They are products of a time when only opposite-sex marriages were recognized in Indiana.” It is the legislature, however, not the courts, that must change this, it stated. It also noted that the current case only involves female-female marriages, and therefore the decision cannot discuss the rights of parents in male-male marriages or the rights of sperm donors, who were not plaintiffs in this case. The call for updating state statutes to better reflect the range of families today seems clear, though.
Yes, Indiana could still appeal the case to the U.S. Supreme Court. But as Stern at Slate notes, “It seems unlikely, though, that the justices will have an appetite to reverse Pavan less than three years after it came down. (Notably, too, Chief Justice John Roberts, a dissenter in Obergefell, did not dissent from Pavan.)” I’d like to believe him.
Regardless of whether you are married or in a civil union or comprehensive domestic partnership, NCLR always encourages non-biological and non-adoptive parents to get an adoption or parentage judgment, even if you are named on your child’s birth certificate.
One word of caution, however: In reporting this decision, some news outlets are implying that nonbiological parents will no longer need to do second-parent adoptions in Indiana. While being on a child’s birth certificate indeed gives nonbiological parents an important degree of authority within the state, all of the major LGBTQ legal organizations still recommend doing a second-parent adoption as well, for greater legal security. As the National Center for Lesbian Rights notes in a fact sheet updated just last year (my emphasis), “Regardless of whether you are married or in a civil union or comprehensive domestic partnership, NCLR always encourages non-biological and non-adoptive parents to get an adoption or parentage judgment, even if you are named on your child’s birth certificate.” New legislation in New Jersey to simplify second-parent adoptions is instructive here, even as it also shows how we can further improve the process of legally recognizing nonbiological parents. Consult an attorney, of course, to see what type of legal documentation is right for you and your family, especially as some states are now offering simplified (but untested in courts) “Voluntary Acknowledgment of Parentage” forms to recognize nonbiological parents.
While we still have far to go before full equality for our families, the Indiana ruling is indeed a step forward. Congratulations to the plaintiffs in the case and to all of the other parents in the state who will benefit.