Camilla Taylor

A state district court in Iowa heard arguments November 7 in a case to determine whether the child born to a lesbian couple married in that state has the right to have the names of both her parents on her birth certificate.

All other states that grant same-sex couples the right to marry or offer other comprehensive relationship recognition, such as civil unions, allow the name of a non-biological parent to be put on the birth certificate of a child born to the other parent. Such states have done so ever since their relationship recognition laws began.

But the Iowa Department of Public Health is refusing to put both women’s names on the birth certificate of the child the married couple had together.

Lambda Legal is arguing the case on behalf Heather Martin Gartner, Melissa Gartner, and the couple’s two-year-old daughter. The women married in Iowa in June 2009, shortly after the Iowa Supreme Court’s April 2009 ruling in Varnum v. Brien. The unanimous court ruled it was unconstitutional to deny same-sex couples the right to marry.

The couple’s daughter, conceived with the aid of an anonymous donor, was born to Heather in September of that year. And Iowa law states that a child born to a married couple is presumed to be the legal child of both spouses.

Iowa statutes concerning birth certificates use gender-specific language—stating that the mother’s husband shall be placed on the birth certificate as the father, unless a court order determines otherwise. The Department argues these statutes prevent them from placing two women’s names on the birth certificate.

Camilla Taylor, senior staff attorney for Lambda Legal, who argued the case before the court, said in an interview that the lack of an accurate birth certificate has caused real problems for the Gartners. A few days after her birth, the child contracted a respiratory virus and was put in intensive care. Melissa, who is the stay-at-home parent in the family, was not allowed to make any medical decisions regarding the baby because she could not document her legal relationship to the child. That required the biological mother, Heather, to take time out of work, endangering her job security.

Taylor said Melissa is also concerned about the emotional toll the absence of her name from the birth certificate might have on their daughter as the child gets older. Taylor said the couple is concerned their daughter will realize the state doesn’t value her relationship to Melissa as much as her relationship to Heather, and that it doesn’t value her parents’ marriage.

“It’s a very worrying and insecure situation for them,” Taylor said.

She added that birth certificates are also necessary for such benefits as school enrollment and pickup, public safety net programs, Social Security or disability benefits from a parent, and child support and custody in case of parental divorce.

And birth certificates are needed in crises, such as a kidnapping, in order to prove legal parentage to law enforcement authorities. They are most important “in times of great need and when children are most vulnerable,” Taylor said.

The Iowa Department of Public Health’s refusal, she said, is “a misguided policy” that “reflects a complete lack of understanding of the purpose of a birth certificate.”

Lambda’s brief in the Gartner case argues that, in Varnum, “the Iowa Supreme Court specifically identified the spousal presumption [of parentage] as a benefit of marriage improperly withheld from same-sex couples and their children. . . . making the conclusion inescapable that the Court intended married same-sex couples and their children to benefit from the presumption after it had struck down the ban as unconstitutional.”

Iowa also prohibits treating children differently because of the “status or conduct of their parents” and protects “family integrity and association even in non-traditional families,” the brief argued.

Taylor said it was ironic that, if the Gartners travelled to neighboring Illinois, which permits same-sex couples to enter civil unions but not to marry, Illinois would consider them both legal parents.

The couple could seek legal ties between Melissa and their daughter through a second-parent adoption, but this, states the brief, “would require significant expense and delay.”

Taylor noted that, while a second-parent adoption would still be necessary to establish Melissa’s parentage if the couple travels to states where their relationship is not recognized, the fact that those other states discriminate against them is no reason for Iowa to do so.

The question of same-sex parents and birth certificates has raised legal questions before. In Adar v. Darlene Smith, Lambda Legal brought a case on behalf of a gay couple who sought an amended birth certificate listing them both as parents of the Louisiana boy they adopted in New York. It is a common procedure for children adopted outside their birth states.

But Louisiana officials said to do so would violate Louisiana’s public policy of not allowing joint adoptions by unmarried couples. The gay couple in the Adar case lived in New York before that state allowed same-sex couples to marry; they now live in California, where they cannot marry.

The U.S. Supreme Court on October 11 refused to hear the gay couple’s appeal of a 5th U.S. Circuit Court of Appeals ruling that upheld Louisiana’s position.

Both the Adar and Gartner cases, Taylor said, “involve states who are ignoring the tangible and emotional needs of children in obtaining the universal legal document that they need to demonstrate who their legal parents are.”

The Gartner case, however, is about respect for the Gartner’s marriage, whereas Adar was about the respect for court orders between states.

Taylor said there will probably be a ruling in the case within a couple of months, but that it will likely be appealed by the losing side. The Iowa Supreme Court would then have the option of taking the case itself, as it did in Varnum, or referring it down to the Iowa Court of Appeals.