Indiana has just asked the U.S. Supreme Court to deny the right of married nonbiological mothers in same-sex couples to be put on their children’s birth certificates without second-parent adoptions. Should Indiana prevail, many children across the country could be denied the legal protection of both parents from the moment of birth. Pull up a chair; we’re going to explore this one in detail.
What’s This All About?
Indiana is appealing a January 2020 ruling of the 7th U.S. Circuit Court of Appeals in Box v. Henderson that said Indiana could not refuse to put both same-sex spouses on the birth certificate of a child born to one of them. That court noted that when a different-sex married couple has a child but the husband is not the biological father, either because they used a sperm donor or the wife slept with someone else, Indiana nevertheless allows the wife to name her husband as a biological parent on the child’s birth certificate. It is therefore marital status, rather than biology, that determines legal parentage.
Obergefell v. Hodges, the 2015 U.S. Supreme Court ruling that said same-sex couples have equal marital rights, therefore requires that the state also allow both members of a same-sex married couple to be on their child’s birth certificate, even if one parent is not biologically connected. The 7th Circuit also cited Pavan v. Smith, the 2017 U.S. Supreme Court ruling that similarly said Arkansas may not prevent married same-sex couples from having both mothers’ names on their children’s birth certificates.
In its petition to the Supreme Court, filed June 15th, however, Indiana maintains that the 7th Circuit ruling “is in tension with the traditional, constitutionally protected understanding that, at birth, only a baby’s biological parents have legal rights and obligations toward the child.”
What Is Indiana Arguing?
Indiana claims that the basis of its birth certificate statutes is biology, not (as in Pavan and the 7th Circuit ruling) marriage. While it does indeed allow a husband’s name to go on a child’s birth certificate even if another man is really the biological father, it doesn’t require his name to be there. A sperm donor or biological father could be named instead—or a biological father could come forward to challenge the paternity listed on a birth certificate. “Thus, the ‘presumption’ of paternity based upon genetic evidence is effectively conclusive and trumps any marital presumption,” the state says.
If The 7th Circuit is right and Indiana’s current practice is discriminatory, however, the only way a state could ensure it’s basing its practices on biology rather than marital status (as Indiana says it can do without flouting Obergefell) is through genetic testing of every new parent (other than adoptive parents). That would be onerous, though. The only other option would be to “abandon the biological foundation for allocating parental rights altogether—as happens when both a birth mother and her wife are ‘presumed’ to be parents.”
We shouldn’t abandon that biological foundation, however, Indiana asserts, since biological connections to a child are important in cases of disputed paternity. However, for two-woman couples, no one assumes the non-birth mother is a biological parent anyway, which means there’s no chance her biological connection would ever be an issue in a case of disputed parentage. In other words, Indiana argues, biology matters for different-sex couples but not for same-sex ones. The state can therefore justifiably treat same- and different-sex couples differently, using biology as the basis for determining parentage and “presum[ing] the paternity of a birth-mother’s husband without also presum[ing] the ‘parentage’ of a birthmother’s wife.”
Does it sound like the state is just looking for an excuse to discriminate? Yeah.
Indiana’s petition also notes that “Except in the rarest of cases,” such as that of one plaintiff couple where one woman carried the other’s egg, “only the marital consent of the birth mother confers any claim to the child on the wife.” To me, that implies that in those “rare” cases of reciprocal IVF (RIVF), the genetic mother does have a biological claim. Indiana says nothing more about this situation, however, dismissing it as a rarity. (The 7th Circuit, in contrast, noted, “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother,” specifically mentioning the RIVF plaintiffs. It’s also the method my spouse and I used, and I don’t think it’s quite as rare as the state of Indiana assumes.)
As for Pavan, Indiana claims that it “has proven insufficient” in guiding states about paternal and maternal presumptions at birth.
One senses conservative activists behind their next line: “This is a critical, nationally important question regarding the implications of Obergefell, and one with which many States have something at stake.”
What’s Next?
The case has implications both for the plaintiffs, eight female same-sex married couples and seven of their minor children, and also for same-sex couples starting families through assisted reproduction in the future. (I assume the progress a few states have made towards recognizing partnered but unmarried nonbiological mothers would also be at risk.)
I see Indiana’s position as an attack on LGBTQ families, pure and simple. I’m not a lawyer, but I see no reason not to hold that some birth certificates are based on marital status (requiring same- and different-sex married couples to be treated equally) while others are based on biology. (And some states are even allowing parents of any gender to sign simple forms establishing legal parentage, even when one parent is not biologically connected and they are not married–making “intent to parent” a third reason for being on a birth certificate.) If parentage is disputed, courts would have to decide on a case-by-case basis, taking into account all factors—but that’s why we have courts.
Indiana, in its petition to the Supreme Court, does accept that a nonbiological mother may use a second-parent adoption to gain parental rights. And all of the major LGBTQ legal organizations still advise doing a second-parent adoption in any state, even when the nonbiological parent is on the birth certificate, for greater legal security. So why care about Indiana’s attempt to restrict non-adoption birth certificates to different-sex couples? 1) Birth certificates give a child the protection of two legal parents from the moment of birth; 2) Adoptions require an expensive, lengthy, and intrusive home study process (though some states have simplified that process for second-parent adoptions); 3) The inherent inequity.
What are the chances the Supreme Court will take the case and find in favor of Indiana? Well, Indiana made essentially the same argument before the 7th Circuit and lost. Lawyer and writer Mark Joseph Stern opined at Slate just before the 7th Circuit ruling that “It seems unlikely … that the [Supreme Court] 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.)” Should they take the case, however, we should note that Justice Neil Gorsuch, who last week wrote a major opinion in favor of non-discrimination employment protections for LGBTQ people, dissented in Pavan, joined by Justices Clarence Thomas and Samuel Alito. We shouldn’t look to him for support here. I think the outcome is still up in the air, though I’d like to be optimistic.
Those who think that marriage equality solved all the problems of LGBTQ parents and our legal rights to our children are sadly mistaken. Nonbiological mothers have had to bring lawsuits in many states, even after Obergefell, in order to gain legal rights to their children. (A short and probably incomplete list: Arkansas and Arizona, Hawaii, Mississippi, Oklahoma, Wisconsin, and of course, Indiana.) In 2020, five years after national marriage equality, our fight to protect our children through legal ties to both parents continues.
