The 7th Circuit Court of Appeals seemed unconvinced that Indiana’s prohibition against listing non-birth mothers in female, same-sex married couples on a child’s birth certificate violates the Constitution.
Arguments in Henderson v. Adams, 17-1141, were presented Monday morning before the panel of Judges Joel Flaum, Frank Easterbrook and Diane Sykes. Indiana Solicitor General Thomas Fisher represented the state and Karen Celestino-Horseman argued for the married women plaintiffs.
The U.S. District Court for the Southern District of Indiana ruled the state’s refusal to recognize non-birth mothers violated the Equal Protection and Due Process clauses. Judge Tanya Walton Pratt found that Indiana under its birth statutes — Indiana Codes 31-9-2-15, 31-9-2-16, and 31-14-7-1 — were identifying men married to the birth mothers as the children’s fathers but the state was not extending that same presumption of parenthood to non-birth mothers in lesbian couples.
Before the 7th Circuit, Fisher argued Indiana law provides parental rights only through the two avenues of biology or adoption, but the district court’s ruling created a third-way to establish parentage. Only female, married same-sex couples can use this third way which “creates an inequality that did not exist before and undermines the rights of biological fathers and their children.”
Celestino-Horseman countered the law was treating same-sex married female couples differently than married heterosexual couples. In instances of artificial insemination, the birth certificates list the husbands as the fathers of the babies even though these men are not biologically related. Her clients, she told the panel, want to “logically extend” the presumption of parenthood to the non-birth mothers.
Easterbrook and Sykes pushed back heavily on Celestino-Horseman’s arguments.
Sykes kept returning to biology.
“The statute creates a paternity presumption,” she said. “That just is impossible in a same-sex marriage situation.”
Celestino-Horseman began to reply that is the case if one makes assumptions about parenthood but Sykes interjected, “It’s not a parenthood statute, it’s a paternity statute. Paternity presumption is impossible in a same-sex marriage situation so we just don’t have any kind of discrimination going on here at all.”
Then Sykes echoed the state’s point that the plaintiffs were actually asking for a redefinition of the term parent to include the third-way created by the district court. Celestino-Horseman responded that parenthood is presumed in a marriage and that recent cases, such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) and Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), have established that parenthood is no longer limited to married men and women who have children.
Easterbrook pressed Celestino-Horseman on why the presumption of parenthood would not encompass male same-sex married couples in the situation where one spouse donates the sperm to a surrogate birth mother.
“We can’t ignore the logical implications of your arguments and you seem to want to,” Easterbrook said.
Celestino-Horseman said the scenario of two married men would require a different argument than is being presented in Henderson. The married same-sex female couples are contending that parenthood is premised on marriage.
Sykes asked Celestino-Horseman whether the Indiana General Assembly had ever taken up this issue.
“No,” Celestino-Horseman replied.
“Right, so you have to work with the statutory scheme you have,” Sykes said. “And to claim that the Constitution requires Indiana to changes its definition of parenthood from the biological one goes well beyond marriage cases.”
Celestino-Horseman responded the Legislature was asked to address the issue in 2004 and 2013 but it did not take action. “In 2014, same-sex marriage became the law, it is now 2017 and they haven’t done it.”
Sykes returned to biology. “You can’t overcome biology,” Sykes said. “If the state defines parenthood by virtue of biology, no argument under the Equal Protection Clause or the Substantive Due Process Clause can overcome that.”
“With all due respect,” Celestino-Horseman responded, “we maintain that parenthood is no longer defined by biology.”
“That’s a policy argument to take to the Legislature,” Sykes countered.