Gay Couples Fight to Be Included on Birth Certificates

This article was originally published at Stateline, an initiative of The Pew Charitable Trusts, and was written by Rebecca Beitsch.

Nicole Singley and her wife Jennifer had been married for more than a year when their son was born in Indiana in 2015. Jennifer had carried the boy, conceived through artificial insemination, and Nicole was there to cut the umbilical cord.

But the next day, while holding their son in the hospital, they were told that only Jennifer’s name would appear on the baby’s birth certificate.

Two years later, the couple is expecting another child, this time a daughter carried by Nicole, and they are still pushing the state to allow both members of married gay couples to be listed on birth certificates the day their baby is born. The course the state recommends in cases like these: adoption.

In other states, the law has been on the Singleys’ side. State “presumption of parentage” laws, which allow hospitals to list a woman’s husband as the father of her child on a birth certificate — even if paternity hasn’t been medically established — have largely been extended to married lesbian couples after the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which legalized gay marriage in all 50 states. Many states did so voluntarily, while courts settled the issue in others, including Florida and South Carolina.

Now, just Arkansas and Indiana are still grappling with lawsuits that contend they treat married lesbian couples differently when it comes to birth certificates.

Lesbian couples involved in the suits say both names are needed on a birth certificate so that either parent can fulfill obligations like enrolling kids in school or making medical decisions for their child. But for Nicole, the worries run deeper. As a member of the Army who served a year in Iraq, she’s worried her military benefits might not be extended to her children equally.

“They’ll be raised in the same household by the same parents,” Nicole said. “But if something were to happen and my marital relationship to Jen would end, through my death or her death, Huck has no legal relationship with me.”

Because birth certificates nearly always document the birth mother, gay male couples often have to take legal steps to terminate her parental rights before both their names can be listed on an amended birth certificate. But lesbians who deliver their own baby say their situation should fall within the existing legal framework.

Indiana does not have a presumption of parentage law entitling husbands of birth mothers to be listed on the birth certificate. Instead, the form mothers fill out often asks if her husband is also the father before he is added to the birth certificate. But the plaintiffs in the case brought by the Singleys and others say a woman who decides with her husband to conceive through artificial insemination would naturally consider her spouse to be the father, and hospital staff don’t question that response. The same logic should apply to same-sex couples, they say.

Arkansas law requires a woman’s husband to be listed as the father on a birth certificate, unless another man’s paternity is established in court. But the state’s Supreme Court recently struck down a lower court decision that would have extended that law to same-sex spouses, arguing the Obergefell decision does not apply to state birth certificate laws. That case is being appealed to the U.S. Supreme Court.

Both states contend that accuracy is necessary in an initial birth certificate, and a brief from the state of Arkansas says listing the biological parents is in the best interest of the child, who may later have questions about their medical history. Lawyers for Arkansas said the plaintiffs should challenge the state’s artificial insemination law, which they concede is not inclusive of gay couples. That law says the husband of a woman who conceives through artificial insemination should be considered the “legitimate natural” father of the child. However, the plaintiffs’ lawyer said that law is irrelevant because it does not address birth certificates.

All About Biology

Without firmly established parental rights, biology could dictate much of the future for the Singleys’ children. If either Nicole or Jennifer died, their parents could seek custody of their biological grandchild without concern for the role of the remaining spouse.

When Huck’s birth certificate arrived, it came with a pink slip that read “Indiana law requires that a child born out-of-wedlock be recorded under the name of the mother,” and listed the ways a father can be added to the birth certificate.

In cases where one of the parents isn’t biologically related to the child, Indiana recommends adoption to ensure parental rights. But the Singleys don’t want to do that.

“We tried this for almost two years before we got pregnant. We’ve spent over $33,000 already just to have this child, and the state says we should spend another $7,000 to adopt our own child after we’ve made all this effort?” Nicole said, citing the amount lawyers quoted the couple to complete the adoption.

They find the idea that a social worker would come into their home and decide whether they get to be parents unsettling, and Nicole says no heterosexual couple that uses artificial insemination is subjected to this process.

A U.S. district judge initially sided with the Singleys and other lesbian couples suing the state, ruling last year that gay couples were being treated differently than heterosexual couples and ordering the spouses’ names added to their children’s birth certificates.

But the state challenged that decision in the 7th Circuit Court of Appeals, arguing in a brief that it cannot “confer parental rights based on emotional connections.”

The state argues that, regardless of the birth mother’s sexuality, she is obligated to tell hospital staff who the father is. It also contends that while biological parents, even sperm donors, have legal parental rights, adoption is the only way the spouse of a biological parent can secure a legal connection to the child. Birth certificates don’t bestow legal rights, the state argues, they merely document parental rights that exist because of a biological connection to a child.

“If a biological mother’s spouse — whether man or woman — is not the biological father of her child but nonetheless wishes to be a legal parent, the spouse should use the mechanism the Indiana General Assembly has provided: adoption,” the state argued in its brief.

One of the couples suing Indiana argues that the state’s biology argument doesn’t address their situation.

Before Jackie Phillips-Stackman met her wife, she froze some of her embryos after an emergency hysterectomy. Years later, they were placed inside her wife, Lisa, as the couple tried to have a child.

Now, Lisa is their daughter’s birth mother, and Jackie is the biological mother. But the state only considered Lisa to be the mother, leaving Jackie to fight to be listed on the birth certificate.

“By their logic I should be listed on the birth certificate,” Jackie said. In court, the state recommended she file a maternity action, a legal move that would have meant removing her wife’s name from the birth certificate.

This is Obergefell

Lesbian couples in Arkansas also won their first court battle to be listed on birth certificates, with a county court citing the Supreme Court’s decision in Obergefell as a reason to extend the state’s presumption of parentage laws to same-sex couples.

In Obergefell, the Supreme Court wrote gay couples were being denied the “constellation of benefits” associated with marriage, and said states have regularly “made marriage the basis for an expanding list of governmental rights,” including birth certificates.

But the state appealed the county court decision, and in December the Arkansas Supreme Court overturned it, arguing Obergefell does not address state birth certificate laws. The opinion pointed to a passage in the decision that says “states are in general free to vary the benefits they confer on all married couples.”

Douglas Hallward-Driemeier, one of the lawyers for the Arkansas couples, said there’s no question Obergefell addressed state birth certificate laws.

“This is not an extension of Obergefell. These are the facts of Obergefell,” he said. “[For] many of the plaintiffs in Obergefell, especially the ones that were already married and looking for recognition of their marriage, the basis of their claims was the state was refusing to list both parents on their birth certificate.”

The Arkansas couples have appealed the case to the U.S. Supreme Court, which has not yet decided whether to hear it.

But Hallward-Driemeier worries that even in states where people have understood the Supreme Court’s same-sex marriage ruling to have settled the birth certificate issue, if the Arkansas decision stands, other states may change their policy.

The uncertainty was enough to push Jana Jacobs, a plaintiff in the suit, to formally adopt the two children she has with her wife Leigh. As the spouse of the birth mother, Jana said she will likely have to do the same “step-parent adoption” for the third baby they’re expecting this summer.

“I’m just trying to take responsibility for my kids,” she said. “I’m not their step parent. There was never anyone else in the picture. I’m their intended parent from birth through the rest of their life.”