Judge orders state agency to list same-sex spouse on child's birth certificate

A Polk County District Court Judge has ordered the Iowa Department of Public Health to list a birth mother’s same-sex spouse on the child’s birth certificate without requiring the non-birthing mother to go through the adoption process.

However, the ruling does not automatically apply to all Iowa same-sex couples seeking to have both parents listed on their children’s birth certificates.

Melissa and Heather Gartner filed the lawsuit in 2010, after the Iowa Department of Public Health declined to list Melissa on the birth certificate of a child born to Heather in 2009. The Gartners had been legally married earlier that year, but the IDPH determined that Melissa would have to go through the adoption process to be named on the birth certificate of the couple’s daughter. The Des Moines Register reported, “The case was dismissed in early 2011 on a technicality, and re-filed two weeks ago.”

Iowa law has long stipulated that when a woman who gives birth is married, her husband should automatically be listed as the father on the child’s birth certificate, regardless of the baby’s genetic parentage.

The Des Moines Register posted the full text of Judge Eliza Ovrom’s decision here (pdf). Judge Ovrom laid out the basic facts of the case on page 2:

Heather and Melissa are a lesbian couple who have been in a committed relationship since 2003. They held a commitment ceremony in front of family and friends in 2006. Heather gave birth to a son, Zachary, in 2007. She conceived via an anonymous sperm donor. Melissa adopted Zachary. Following the adoption, the Department of Public Health issued an amended birth certificate for Zachary, listing Heather as the mother, and Melissa as the other parent. Ex. 3.

Heather and Melissa decided together to have another child. Heather conceived again using anonymous sperm donor. She used the same donor as for Zachary.

In April 2009, the Iowa Supreme Court issued its decision in Varnum v. Brien, which legalized same-sex marriage in Iowa. On June 13, 2009, Heather and Melissa were legally married.

On September 19, 2009, Heather gave birth to a daughter, Mackenzie, in Des Moines. Heather and Melissa filled out the form to obtain a birth certificate from the Iowa Department of Public Health. They listed themselves as parents, indicating that they are a same-sex couple legally married in Iowa. The Department of Public Health completed the birth certificate listing only Heather as the mother, and leaving blank the space for a second parent. The Department informed Melissa that it would not place her name on the birth certificate unless she first adopts the child. […]

The parties agree that a birth certificate is the primary way to demonstrate legal parentage. They also agree that it is relied upon and legally required to establish identity, age, and parentage in many contexts, including school, employment, travel, social security, marriage licenses, driver’s licenses, professional licenses, insurance, banking, and medical care. Without her name on the birth certificate, Melissa will be unable to prove that she is Mackenzie’s legal parent. This will adversely affect her ability to authorize medical care for the child, or even to enroll her or pick her up from a childcare facility. Melissa will not be able to obtain access to the child’s birth certificate, and would likely be denied health care coverage for the child on her policy. The Department does not dispute Melissa’s claim that the process of adoption is intrusive, expensive, and time-consuming. It would involve a home study and background check, plus the expenses of court fees, attorney fees, and the costs of the home study.

Judge Ovrom explained on pages 4 to 6 why the Iowa Department of Public Health’s interpretation of Iowa Code “is not entitled to deference” and should be examined by the court.

The IDPH relies on Section 144.13(2) of the Iowa Code:

If the mother was married at the time of conception, birth, or at any time during the period between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.

Ovrom’s ruling then summarizes the key arguments for both sides on page 6:

Petitioners assert that following Varnum, the Department should read the statute to refer to “spouse” instead of “husband,” and “parent” instead of “father.” The Department argues that because Section 144.13(2) says a “husband’s” name must be placed on a birth certificate as the “father” of the child, it cannot enter Melissa’s name on the birth certificate under that statute, and she must adopt the child in order to have her name placed on the birth certificate.

Ovrom then cites a passage from the Iowa Supreme Court’s 2009 Varnum v Brien decision: “Consequently, the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

The decision cites Iowa case law supporting the idea that all children born to married parents are considered the legitimate children of both parents. In a 1945 case, the Iowa Attorney General’s Office determined “that a husband’s name must be placed on a birth certificate even though he could not possibly have fathered his wife’s child” (because he was away at war).

In a 1999 ruling, the Iowa Supreme Court “held that when a child is born during a marriage, the husband is the legally established father of a child, even though genetic testing shows that another man is the child’s biological father.”

Judge Ovrom concluded that the Gartners proved the IDPH actions “are in violation of law, and based on an erroneous interpretation of the law.” She did not issue a decision on whether the IDPH’s interpretation of Iowa Code violated the Gartners’ constitutional rights, which was another legal argument in the case.

Commenting on yesterday’s news, One Iowa Executive Director Troy Price released the following statement:

“One Iowa applauds this long-overdue ruling. Iowa has finally caught up with other states that already protect children by listing both spouses as parents on the birth certificate. The court has once again upheld Iowa values by making this decision that is in the best interest of Iowa’s children and ensures that both parents will be able to care for their children during critical times in their lives. This is one more step towards full equality for all Iowa families.”

I would caution that this ruling does not automatically apply to all same-sex couples who have children while legally married in Iowa.

From page 11 of Ovrom’s decision:

An important fact of this case is that the child was conceived by use of in vitro fertilization with an anonymous sperm donor. The Department’s stated goal of naming the biological father of the child cannot be met, as there is no identified man who could be named as the father. Paternity cannot be established here. In addition, the Department argues that biological fathers could challenge its decision to omit them from birth certificates, thus leading to administrative inefficiencies. Again, this cannot happen in this case, where the sperm is from an anonymous donor. The court’s holding is limited to the facts of this case.

Conclusion

Pursuant to Varnum v. Brien, where a married woman gives birth to a baby conceived through use of an anonymous sperm donor, the Department of Public Health should place her same-sex spouse’s name on the child’s birth certificate without requiring the spouse to go through an adoption proceeding.

Perhaps the IDPH will automatically list all same-sex spouses on birth certificates going forward. However, if the IDPH decides to do so only when the child was conceived through use of an anonymous sperm donor, other couples who have children through different means may have to fight this battle in court.

UPDATE: I sought comment about how the IDPH plans to implement this ruling. The department’s Public Information Officer Polly Carver-Kimm responded, “it appears the ruling applies only in those cases in which a lesbian married couple conceives via in vitro fertilization using an anonymous sperm donor; however, IDPH is reviewing the ruling to ensure it is interpreted and applied correctly.”

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