Indiana petitions U.S. Supreme Court to take same-sex parents’ birth certificate case

Continuing its fight over parentage, Indiana has petitioned the U.S. Supreme Court to review the appellate court ruling that allowed non-birth mothers in a same-sex marriage to be listed as parents on their children’s birth certificates.

The petition for writ of certiorari was filed by the Indiana Attorney General just as the 150-day deadline was expiring to challenge the 7th Circuit Court of Appeals’ ruling in Kristina Box, in her official capacity as commissioner, Indiana State Department of Health v. Ashlee and Ruby Henderson, et al. Indiana is asking the Supreme Court to overturn the decision that now requires the state to allocate parental rights to the wives of birth mothers.

“This case, then, is about whether Indiana may, to advance its unquestionably legitimate policy of safeguarding the rights and obligations of biological parents in the context of completing birth certificates, presume as birth-mother’s husband to be the biological father of the child, without also presuming the ‘parentage’ of a birth-mother’s wife,” Indiana argued in its petition.

The 7th Circuit’s decision in Box v. Henderson cited the Supreme Court’s per curiam ruling in Pavan v. Smith, which knocked down Arkansas’ similar prohibition against putting the names of the non-birth mothers on the birth certificates if the women were married to a same-sex partner. Indiana argues its law governing birth certificates is different because it is based on biology and not marriage.

Specifically, Indiana says its statutory and regulatory treatment of parental rights is based on the premise that the mother and father are biologically related to the child or have legally adopted the child. Although the state presumes the birth mother’s husband to be the biological father, that automatic assumption of paternity can be rebutted, in part, if there is “clear and convincing evidence that another man is the child’s biological father.”

Indiana argues Pavan actually allows states to use biology to identify the parents on birth certificates. Arkansas had its birth certificate system overturned because, Indiana states in its petition, it mandated the birth mother’s husband to be listed as a father on the birth certificate even when the biological connection was known not to exist.

The Hoosier state has no such mandate. Instead it presumes the birth mother’s husband to be biological father and provides ways to challenge that presumption.

Indiana maintains in its petition that birth mothers are not prohibited from listing the biological father on the birth certificate and biological fathers are not banned from filing for paternity to establish their legal and biological parentage. Also, the state argues, the presumption is “a low-cost, convenient, highly accurate” starting point to identify the biological parents.

However, the 7th Circuit’s decision determined that Indiana’s presumption of fatherhood was, in fact, parental rights based on marriage rather than biology, according to Indiana’s petition. That ruling, Indiana argues, extends Obergefell v. Hodges (the ruling that recognized the right for same-sex couples to marry) and Pavan “well beyond any reasonable understanding of their limits” by requiring states to either perform genetic testing on all parents to establish the biological connection to their offspring or abandon biology as the basis for conferring parental rights.

“The function of paternity (and maternity) actions is to correct misidentification of individuals supposedly having a biological connection to a child,” Indiana’s petition states. “But presuming the wife of a birth mother to be a parent — while also presuming the birth mother’s biological maternity — does not misidentify a biological connection; rather, it jettisons the relevance of biology and substitutes marriage as the key determinant of parental rights from the moment of birth. If that is what States must do, no grounds exist for reallocating parental rights just because someone outside the marriage comes forward with a positive paternity (or maternity) test.”

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