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State fighting birth certificate ruling

August 15, 2016

Married same-sex female couples who challenged Indiana’s refusal to recognize the non-birth mothers on their children’s birth certificates reiterate that they want to be treated in the same manner as heterosexual couples – no more, no less. The state, which intends to appeal a ruling finding Indiana's paternity statutes to be unconstitutional, is first asking the judge to take another look at her ruling.

The couples won in the U.S. District Court for the Southern District of Indiana when Judge Tanya Walton Pratt found Indiana’s parenthood statutes to be unconstitutional. The June 30 ruling held the state was violating the Equal Protection and Due Process clauses of the 14th Amendment because it permits the husband of a woman who is artificially inseminated to be listed as the father but does not allow the wife of a birth mother in the same situation to be listed as the second mother. 

The case is Henderson, et al. v. Adams, et al., 1:15-cv-00220.
 
On July 18, the state filed a motion to alter or amend the judgment, citing a range of arguments from the court lacks jurisdiction to the scope of the judgment is unclear. The state indicated it ultimately intends to appeal the ruling but it wanted to urge the court to first address the “handful of manifest errors or uncertainties surrounding the judgment.”   

The plaintiffs filed their response to the motion on Aug. 13, echoing the ruling of the district court that female same-sex couples who have children should be treated the same as heterosexual married couples.

“When a birth mother who is married to a man is asked to provide information for the birth certificate, she is not asked if she knows the biologically-related father of the child,” the plaintiffs stated in their brief. “She is simply asked if she is married to the father of her child. She is not asked if the child was conceived via intercourse with someone other than her husband. She is not asked if she knows the identity of the third party sperm donor who assisted with conception. If the birth mother identifies her husband as the parent of her child, he goes on the birth certificate. That is also how birth mothers with a female same-sex spouse should be treated.”

The state argues it is unclear about the meaning of the court’s order and pointed out instances where it sees female same-sex couples being granted special status that is not given to heterosexual or male same-sex couples.

Specifically, it argues the under the judgment a new presumption of legal parentage would apply only to wives of birth mothers. However male same-sex married couples could not enjoy the same presumption even if one of them is the biological father. The state contends to be recognized as parents, the biological father could file an affidavit of paternity and the husband would have to file a petition for stepparent adoption.

Also, the state asserts the court did not address whether “its new legal presumption” of parenthood is rebuttable. The state notes with opposite-sex married couples, the presumption of biological paternity of the husband can be rebutted. But it protests with same-sex female couples, the court is not clear if the presumption of parenthood could be rebutted or if the parental rights of anonymous or known donors are being extinguished.

The plaintiffs counter the judgment just requires the statutes to be applied equally to male and female spouses of birth mothers and the children born in these marriages. They argue the order of the district court carries forth the mandate established by the U.S. Supreme Court in Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015), which requires the judiciary to root out “unjustified inequality.”

The plaintiffs disputed the order granted them special status and reiterated they should be treated the same as any opposite-sex married couple who undergoes artificial insemination.  

 “The only classification impacted by the injunction are married female same-sex couples to whom a child is born during the course of the marriage,” the plaintiffs argued. “All the State is required to do is make sure it grants the presumption of parenthood to the classification described in the injunction. Any couple not within the described classification, e.g., a male married same-sex couple, cannot claim to be protected by the injunction and cannot bring a contempt action.

“Thus it is the State’s choice as to whether it wishes to limit the Statute’s application only to the class of female married same-sex couples and children described in the injunction or expand the application to include male same-sex married couples.”

The plaintiffs are represented by Karen Celestino-Horseman, of counsel at Austin & Jones P.C.; William Groth, partner at Fillenwarth Dennerline Groth & Towe LLP; Raymond Faust, attorney at Skiles DeTrude; and Richard Mann and Megan Gehring, attorneys at Richard A. Mann P.C.

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