A bill in the Legislature could reignite Indiana’s battle over birth certificates and possibly upend a federal court rulings that allow married lesbian couples to have both their names listed as their children’s parents.
Senate Bill 289 inserts the word “biological” into Indiana’s birth certificate statute. The new language would mandate that birth certificates must record the names of the child’s biological parents or, if the biological parents are unknown, the names of the presumptive parents.
This measure, authored by Wadesville Republican Sen. James Tomes, is being viewed as following the workaround offered in the 7th Circuit Court of Appeals’ opinion in Henderson v. Box, 17-1141, which challenged Indiana’s birth certificate regime.
The appellate court affirmed in January 2020 the district court’s finding that Indiana was violating the Constitution by prohibiting non-birth mothers in married same-sex female couples from being identified on the birth certificate as a parent. But the 10-page decision made a nod to another way the state could limit parentage.
“As we have stated several times, the Fourteenth Amendment does not forbid a state from establishing a birth-certificate regimen that uses biology rather than marital status to identify parentage,” Judge Frank Easterbrook wrote in the Henderson decision. “A state is entitled to separate the questions ‘whose genes does a given child carry?’ from ‘what parental rights and duties do spouses have?’”
The birth certificate lawsuit and SB 289 were part of a virtual discussion at Indiana University Robert H. McKinney School of Law. Sponsored by the American Constitution Society and Lambda Law Society, the event, “Box v. Henderson Case Discussion: Equality for Indiana Families,” was hosted by Nicole Goodson, attorney at Disability Legal Services of Indiana and adjunct professor at the law school. Also, two of the attorneys representing the plaintiffs, Richard Mann and Megan Gehring of Mann Law P.C. in Indianapolis, participated.
SB 289 has been assigned to the House Judiciary Committee but has not been given a hearing. Mann is skeptical the measure will gain much traction, although he noted the language could get inserted in another bill during conference committee when the public would not have any opportunity to voice their concerns or support.
“I think 289 probably has a hard way to go to get through,” Mann said.
The birth certificate battle began when eight married same-sex women couples filed a lawsuit in 2015 after the non-birth mothers were not recognized as parents of their children. The U.S. District Court for the Southern District of Indiana ruled Indiana was violating the Equal Protection and Due Process clauses because it was presuming the husbands were fathers but not extending that same presumption to non-birth mothers.
Indiana appealed to the 7th Circuit where the conservative panel appeared to be persuaded by the state’s arguments. However, a ruling from the U.S. Supreme Court in an Arkansas birth certificate dispute, Pavan v. Smith, 582 U.S. ___(2017), established precedent upholding the district court’s decision.
The state then asked the U.S. Supreme Court to review the case.
While the petition for a writ of certiorari was pending, Justice Ruth Bader Ginsburg died and the 7th Circuit’s Amy Coney Barrett was confirmed to fill the vacancy. Mann noted the plaintiffs were apprehensive when Barrett, a staunch conservative, became a member of the court as it was considering the state’s request but their fears were eased when the justices denied cert in December 2020.
Goodson sees a connection between the appellate court’s opinion and Tomes’ bill.
“It feels like the state of Indiana has looked at the decision that says we would not rule out an intent to have birth certificates identifying biology and to sort of go around your lawsuit and the repercussions of it,” she said during the discussion.
Mann said he and Gehring disagree whether the bill actually does go through the loophole spotlighted in the 7th Circuit’s ruling, but he noted if the measure becomes law, it might have some unintended consequences for Republicans’ constituents.
“… (Y)ou’re going to take all these couples who have to go to artificial insemination to have children, they’re going to have to go through adoption, and these are the people they like,” Mann said, if the birth certificate statute is changed to specify biological parents. “The heterosexual couples are going to say, ‘Why are you doing this to us?’”
Goodson asked the attorneys about the viability of a separate or hybrid birth certificate which would allow nonbiological parents to accept legal responsibility for the child while also identifying the biological parents.
Gehring did not think that would be a solution. She pointed out the state might have other motives for changing the birth certificate law than just wanting to ensure good medical records.
“I don’t see the people who are pushing for this biology being the key to the birth certificates settling for, ‘Oh, yeah, we just want to know the names and then we can move on,’” she said. “I don’t think that’s practically possible.”
She also noted another issue would arise with anonymous sperm donors. Laws already protect their privacy, so in those instances, the state could not get the donor’s name to identify the biological father on the certificate of birth.
Goodson also asked the attorneys if listing the biological parents would open a path for same-sex married male couples to have their names listed on their children’s birth certificates.
Neither Mann or Gehring thought that would be possible because Indiana does not recognize surrogacy.
“Indiana won’t enforce a surrogacy contract. In fact, it’s against public policy to enforce them,” Mann said. “So I think if we got surrogacy, then there’s a shot at that, but I worked in the Legislature for five or six years and they haven’t gotten any less conservative since I worked there.”
The Indiana lawyers joining Mann and Gehring in representing the plaintiffs included Karen Celestino-Horseman of Austen & Jones and William Groth of Vlink Law Firm LLC.