State agency appeals ruling on birth certificates for same-sex couples' kids

The Iowa Department of Public Health will appeal a Polk County District Court ruling on whether non-birthing same-sex parents should be listed on babies’ birth certificates.

District Court Judge Elena Ovrom ruled in January that the Iowa Department of Public Health erred by not listing Melissa Gartner on the birth certificate of a baby born to her wife Heather Gartner in 2009. The Gartners were legally married in Iowa at the time of the birth. Bleeding Heartland summarized the main arguments from the case and Judge Ovrom’s ruling here. A pdf file containing the full text of the decision is here.

In this passage, Judge Ovrom limited the scope of her ruling:

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.

The District Court’s decision does not make clear how the IDPH should treat other same-sex couples who bear children through different means (for instance, where two married women know the identity of their baby’s biological father, or where one of two married men is the biological father of a baby carried by a surrogate).

In early January, IDPH Public Information Officer Polly Carver-Kimm told me that the department’s staff was “reviewing the ruling to ensure it is interpreted and applied correctly.” Today she announced the decision to appeal:

The Iowa Department of Public Health has filed the appeal because it specifically addresses a situation in which a child is born to married lesbian mothers who conceive through the use of an anonymous sperm donor, but does not address the birth of children to married gays and lesbians who conceive in alternate ways, said Health Department spokeswoman Polly Carver-Kimm.

The state agency is seeking further guidance from the Iowa Supreme Court “regarding applying the presumption of paternity language currently in code to same-sex marriages,” she said.

I asked Carver-Kimm to clarify how the IDPH is now treating birth certificates for same-sex couples’ children. She responded by e-mail today,

In regards to how birth certificates will be handled during the appeal process, IDPH will continue to apply the presumption of paternity as it has been while the appeal is pending.  With respect to same-sex female couples, IDPH will not enter the name of the non-birthing lesbian spouse to the child’s birth certificate as a parent unless the woman has adopted the child. With respect to same-sex male couples who use a surrogate mother, IDPH will continue to require both men to adopt the child to be entered as legal parents on the birth certificate.

To my knowledge, no other state that recognizes same-sex marriage forces married couples to jump through these hoops in order to be listed on a birth certificate. It seems particularly odd to require two men to go through the adoption process, even if one of them is the baby’s biological father.

  • It seems ridiculous to me

    that when a biological parent of a child is known, and no one contests it, that the person shouldn’t be listed on the birth certificate and be a default guardian of the child (unless some other arrangement is made).

    I do think the state has an interest in maintaining a record of a child’s biological parents (to the extent that they’re known), even if they’re not the legal parents of a child. Maybe there needs to be separate boxes on the certificate for biological and legal parents?

    • I wonder what procedure is used

      when a married heterosexual couple uses a surrogate mother to carry a child. I doubt the IDPH makes the wife go through the formal adoption process before listing her on the birth certificate, but I will check to make sure.

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