Iowa Department of Public Health having trouble with marriage equality
by desmoinesdem, Sun May 16, 2010 at 12:30:37 PM EDT
When some Republicans tried to convince Iowa county recorders not to issue marriage licenses to same-sex couples last April, Iowa Department of Public Health officials made clear that ignoring the Iowa Supreme Court's Varnum v Brien ruling was not an option. Unfortunately, the IDPH has determined that marriage equality does not require equal treatment for married gay couples who become parents. Now IDPH Director Tom Newton has foolishly decided to fight a lawsuit brought by a married lesbian couple seeking to have the non-birthing spouse listed on their child's birth certificate. Heather and Melissa Gartner sued senior IDPH officials on behalf of their daughter this week, having tried and failed to resolve the matter through administrative channels.
Based on advice from the Iowa Attorney General's Office, the IDPH contends that the non-birthing spouse must complete the adoption process in order to be listed as the second parent on a child's birth certificate, even if the child was born after the parents were legally married. I'm a big fan of Attorney General Tom Miller, but his office blew it on this one.
When a woman gets pregnant and delivers a baby while married to a man, the husband is never forced to go through the adoption process. It doesn't matter if the woman got pregnant using donor sperm, or cheated on her husband with another man; the husband of the mother is automatically presumed to be the baby's father and so named on the birth certificate, regardless of any genetic relation to the baby. Since same-sex couples are entitled to the benefits of civil marriage, it seems unfair to force a mother's spouse to adopt a child born in wedlock.
IDPH officials see the matter differently:
“It is a biological impossibility for a woman to be a biological father of a child, yet Plaintiffs contend that in all cases of children born to lesbian couples the non-birthing spouse should be entered on the birth certificate as the father with no notice provided to the biological father. While these Plaintiffs may have conceived using an anonymous sperm donor, clearly not all lesbian couples conceive in that manner, and the legal rights and duties of these biological fathers and their children remain in limbo unless an adoption has occurred.” [...]
The state also acknowledges that there may be instances in which the presumption of paternity may result in the wrong male being listed on the birth certificate — such as in cases of artificial insemination or marital infidelity. Those instances, the state argues, can and do occur, but in the case of same-sex couples applying such a presumption of legitimacy to the child “would in every case result in naming a parent on a birth certificate who has no biological connection to the child.”
Lambda Legal's Camilla Taylor is one of the attorneys representing the Gartners. She told Iowa Independent, "Every other state that has allowed same-sex couples to marry or enter into civil unions has applied the spousal presumption of parentage equally to the children of same-sex couples." Moreover, Taylor explains,
“The purpose of spousal presumption of legitimacy — and Iowa’s birth certificate which reflects the presumption — has always been to protect children from the historic stigma of what was termed ‘illegitimacy’ or ‘bastardy.’ It is a child-centered rule and the State of Iowa on a number of occasions has made clear in opinions by the Attorney General — dating all the way back to World War II — that Iowa’s birth certificate rules are not about determining genetic parentage, but are about protecting children and their relationships to two people — the spouses, who are most likely to be the people the child considers to be parents.”
The adoption process can be lengthy and expensive, and there is no reason to force gay couples to go through it when a child is born in wedlock. This case will probably end with a court ruling against the IDPH, but officials still have a chance to spare the department an expensive and embarrassing defeat. Stop fighting the Gartners' lawsuit and stop making same-sex couples jump through hoops that are never presented to heterosexuals. The Varnum v Brien decision maintained, "If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded."