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Iowa Supreme Court Issues Key Equality Ruling

The Iowa Supreme Court issued a ruling saying that if a married gay couple gives birth, the non-procreative parent should be listed as the second parent on the child’s birth certificate. The Iowa high court ruled in favor of marriage equality in 2009. The new ruling states:

It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children. By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth. Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice. The exclusion of the nonbirthing spouse on the birth certificate of a child born to a married lesbian couple is not substantially related to the objective of establishing parentage.

Thus, section 144.13(2) fails to comport with the guarantees of equal protection under article 1, sections 1 and 6 of the Iowa Constitution. The Department has been unable to identify a constitutionally adequate justification for refusing to list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage, when the child was conceived using an anonymous sperm donor and was born to the other spouse during the marriage. Thus, the language in section 144.13(2) limiting the requirement to “the name of the husband” on the birth certificate is unconstitutional as applied to married lesbian couples who have a child born to them during marriage.

The situation is slightly different when it comes to two men, of course, since neither of them would give birth. But in a case of adoption or surrogacy, both parents should be presumed to have equal parental rights and responsibilities. And let’s hear the wingnuts argue against this position, which is clearly in the best interests of the children. That will put the lie to all that “pro-family” nonsense.

You can read the full ruling here.

Comments

  1. Doug Little says

    Sounds pro family to me. Where is all the wanton destruction that is meant to ensue when equal rights for gay people materialize? Grabs popcorn, this is going to be good.

  2. says

    To be honest, I’m not sure I like this. The function of a birth certificate is to establish the child’s birthright, which in turn affects a whole host of legal rights for the child, including quite a number of federal rights and privileges. Creating a separate certificate of parental rights that is given to all parents, including adoptive and the like, most definitely. But providing deliberately false information on the birth certificate? That seems wrong.

  3. tubi says

    I think it’s the right thing to do from the perspective of the couple and of the child, however, it sure will make doing research on Ancestry more difficult in 50 years.

  4. Ben P says

    Creating a separate certificate of parental rights that is given to all parents, including adoptive and the like, most definitely.

    This decision does create some issues that will have to be resolved, but this isn’t one of them. Typically when parents adopt a child, the Court will enter an adoption decree, then the adoptive parents get a certified copy of the adoption decree which goes to the State vital records department, and the state records department issues a brand new birth certificate showing the adoptive parents as the parents, and also showing the adoptive name of the child.

    One issue that does come to mind is what happens when one partner of a married lesbian couple has a child. This decision means that the birth certificate will list the spouse as a legal parent. There”s no problem with that. But it doesn’t address what happens with the biological father. If there was a sperm donation agreement, usually parental rights are waived, or mostly waived, but that’s not necessarily the only way this can happen.

    I can also imagine some bizarre scenarios involving unmarried lesbian couples who may do this, and how it would be treated in a dependency neglect or child support case. But In the grand scheme of things these are pretty technical issues, not something that will cause the system to break down.

  5. cottonnero says

    #3: Is it deliberately false information? I thought that the purpose of a birth certificate was to provide information about legal parentage, not (necessarily) biological parentage. I know of adopted children who have gotten redone birth certificates, with the adoptive parent rather than the biological one listed. (It stuck in my mind because the adoptive parent was eleven years older than the oldest child.)

  6. Stacy says

    @Gregory in Seattle

    I’m skimming through the court ruling, and it sounds like they’re pointing out that in the case of heterosexual marriage, there’s always been a presumption of the husband’s paternity on birth certificates. The logic for the presumption–and it has continued even since there’ve been easy ways to establish biological paternity–was that the interests of the child–to grow up in a stable home–overrode any overarching desire to be sure who the biological daddy was.

    So, when it comes to the mother’s spouse, a birth certificate is really more about the child’s family than the child’s genetics. Of course, if we want to forestall confusion, or feel the need to know for sure who the biological father is, that could be cleared up by adding a line to birth certificates. In this case the sperm donor is anonymous.

  7. says

    This should not be difficult to understand.

    The name of the anonymous sperm donor will not be on the birth certificate, because the donor is anonymous.

    A woman who has a child by someone other than her husband, the husband is listed as the parent.

    This is just replacing the gender-specific terminology with gender-neutral terminology.

    A woman who has a child by someone other than her spouse, the spouse is listed as the parent.

    Are we supposed to do paternity testing on all children to determine if the father really is the one who inseminated the mother?

    I think the religious would find this an unwelcome intrusion in their lives. However, it would make for an interesting natural experiment to see if the self-identified religious produce a higher percentage of children by adultery, than self-identified non-religious people do.

    .

  8. brucegee1962 says

    I assume that this in response to the case where the lesbian couple had a child using a sperm donor who explicitly signed away all his rights, but then when they fell on hard times and applied for public assistance, the state began sending him bills for child support. I don’t remember if that was in Iowa or not. That was a case that seemed pretty outrageous but clearly rquired under the current law.

  9. slc1 says

    Re roguemedic @ #8

    Roguemedic is correct. At least in the past, surrogate sperm donors were anomymous and the laws on surrogacy were quite explicit that the anomymous donor had no legal responsibility for any ensuing issue.

  10. Ben P says

    Are we supposed to do paternity testing on all children to determine if the father really is the one who inseminated the mother?

    I think the religious would find this an unwelcome intrusion in their lives. However, it would make for an interesting natural experiment to see if the self-identified religious produce a higher percentage of children by adultery, than self-identified non-religious people do.

    .

    I think you misunderstand the issue. Again, in the grand scheme this is a non-issue, but it will lead to probably some follow up court decisions.

    Here are hypothetical situations.

    Hypothetical 1 – Unmarried Mother A has a child. She informs the hospital, truthfully or untruthfully, that she does not know who the father is. The birth certificate will say “father unknown.” Later, even years later, the mother tells the state child support office that the father is B, the state will then file a lawsuit against B, ask him to undergo a paternity test, if positive, ask a court to find him to be the legal father, and order him to pay child support. B has no real defense to this except for not actually being the father.

    Hypothetical 2 – Married mother has a child, father is not present. Mother tells hospital she is married. Husband will be written on birth certificate as legal father. Subsequently, mother and father get divorced. Legal father has paternity test conducted and conclusively proves he is not the father, he asks to avoid child support. Unless another father is identified, many states will say “sorry, you’re stuck,” and he can’t avoid paying child support.

    Some states have a “trade” statute, saying that a father can ask to be relieved from paying child support if another man is adjudicated the legal father.

    Hypothetical 3 – Married mother has a child. Husband is not present, but biological father is, and signs the birth certificate and acknowledgement. Biological father will go on birth certificate as legal father. Legal father will have potential responsibility for child support, estranged husband will not.

    Hypothetical 4 – Partner 1 in married lesbian couple has child. She tells hospital that Partner 2 is her spouse. Partner 2 goes onto the birth certificate as a legal parent. No claims are made as to the biological father. Subsequently, the couple divorces. Mother then alleges in court that previously unnamed Male A is the biological father of the child, asks that he be ordered to pay child support.

    Testing proves Male A is the biological father. Is the former (female) spouse obligated to pay child support or is the biological father? Who is obligated first?

    Hypothetical 5 – Partner 1 in married lesbian couple has a child. Partner 2 is listed as legal parent. There is a situation of abuse or neglect, and the child is removed and put in foster care. Male 3 comes forward, says he’s the biological father of the child, this is proved by a DNA test. He asks for custdy of the child. Can he get rights?

  11. Ben P says

    Roguemedic is correct. At least in the past, surrogate sperm donors were anomymous and the laws on surrogacy were quite explicit that the anomymous donor had no legal responsibility for any ensuing issue.

    In the US, I don’t believe most states have explicit laws on this. (some might). Rather, it’s usually a matter of contractual agreement. The donor signs an agreement when he donates stating he will remain anonymous and waiving any parental rights over children fathered with his sperm. The prospective parents receive the donation without any identifying information as to the father.

    But I can be virtually certain that not every possible child born to a partner in a lesbian couple will arise out of a strictly controlled commercial donation agreement. Some might be concieved “the natural way” notwithstanding the orientation of the mother, others might come from a known donor in any number of circumstances.

  12. Ben P says

    In the US, I don’t believe most states have explicit laws on this. (some might). Rather, it’s usually a matter of contractual agreement. The donor signs an agreement when he donates stating he will remain anonymous and waiving any parental rights over children fathered with his sperm. The prospective parents receive the donation without any identifying information as to the father.

    I might also point out that many countries, anonymous donation is against the law, because Courts have found a child has a right to know their biological parent. This isn’t typically the case in the US, at least in states I’m aware of.

  13. baal says

    Hey BenP – you’re more up on the current law than I am. I once heard that the common law rule was that if a wife gives birth and the legal married husband is on the birth certificate, the actual sperm donor (from say an affair) doesn’t have legal rights to his child?

  14. Ben P says

    Hey BenP – you’re more up on the current law than I am. I once heard that the common law rule was that if a wife gives birth and the legal married husband is on the birth certificate, the actual sperm donor (from say an affair) doesn’t have legal rights to his child?

    The common law rule is that the husband of the wife is conclusively established as the father. This was known as lord mansfield’s rule. The essence of the rule was that no testimony was competent to prove that a husband was not the actual father of a child. The rule predated genetic testing, and existed because English common law placed a heavy legal stigma on a “bastard.”

    Today, most states have replaced common law with paternity statutes, but the statutes don’t reflect every possible circumstance. Typically paternity statutes provide a man is the legal father if (a) was married to the mother at the time of birth or conception, (b) he signs an acknowledgement of paternity, or (c) is the biological father and has been found by a court to be the legal father.

    In most states once you are a legal father, it is quite difficult, if not impossible to relieve yourself of that burden. Only recently have some states passed laws to deal with the “my wife cheated on me and now I’m paying child support for some other dude’s kid” problem.

    Similarly, in some states if there is already a legal father, this serves to preclude other men from coming forward and asking to be granted legal rights as to the child. A claimed putative father cannot involuntarily displace a legal father. This would be the sperm donor situation more or less. So that’s true enough.

  15. Stacy says

    I made a comment waaaaay up there at #7. Some of you may want to read it, in lieu of repeating points already made. Just a suggestion. Thanks!

  16. jameshanley says

    Aw, gee, we elected those guys to replace those pro-gay judges. Now we have to start our anti-pro-gay judge campaigns all over again.

  17. freemage says

    Ben P:

    No lawyer here, but I do have some thoughts on what the law SHOULD say for those hypothetical scenarios of yours:

    Hypothetical 4 – Partner 1 in married lesbian couple has child. She tells hospital that Partner 2 is her spouse. Partner 2 goes onto the birth certificate as a legal parent. No claims are made as to the biological father. Subsequently, the couple divorces. Mother then alleges in court that previously unnamed Male A is the biological father of the child, asks that he be ordered to pay child support.

    Testing proves Male A is the biological father. Is the former (female) spouse obligated to pay child support or is the biological father? Who is obligated first?

    Assuming Partner 2 actually signed the paperwork, she has first obligation to continue supporting the child. If her income is insufficient, then it might be appropriate to turn to Male A for further (supplemental) assistance. (Corollary to this: Partner 2 would have full rights to visitation, and to joint custody, and would be as eligible as any parent to sue for full custody in an allegation of abuse–in other words, no favoritism on custody should be afforded to the bio-mom.)

    Hypothetical 5 – Partner 1 in married lesbian couple has a child. Partner 2 is listed as legal parent. There is a situation of abuse or neglect, and the child is removed and put in foster care. Male 3 comes forward, says he’s the biological father of the child, this is proved by a DNA test. He asks for custdy of the child. Can he get rights?

    Best interests of the child take precedence, here. If the Partners are unable to live up to their duty to provide a safe and loving home, and Male A is capable of assuming the task for himself, then he at least has greater claim than any potential foster parent would.

  18. Thorne says

    We may yet reach the point where birth certificates will require more information, such as birth mother, biological mother, biological father and/or spouse.

    As an example, suppose Lesbian A has viable eggs but cannot carry a child to term, while her spouse, Lesbian B, has that ability. Male donor C provides the sperm for an in vitro fertilization of A’s eggs, which are then implanted into C’s womb. Who’s the mother?

    As an added twist, just to blow the wingnut minds, what if the donor (C), is the birth mother’s (B) biological brother? (This would allow the child to have some genes which are donated by both sides of the family.)

    I think there are some major changes going to come about because of all of this. And that’s generally a good thing.

  19. Vicki says

    With regard to Ben P’s hypothetical 3: in at least some states, if a married woman gives birth to a child, her husband is legally the father of that child, even if the woman, her husband, and the actual biological father are all there to say “no, this other man is the father, and wants to be named as such and take responsibility.”

    Day to day, they can go home and the biological father can be “daddy” and raise his children together with their mother, but as far as the state of California is concerned, he has no legal rights or responsibilities; those are all on the mother’s husband.

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