Indiana Loses Appeal in Fight Over Same-Sex Birth Certificates

CHICAGO (CN) – State officials in Indiana must list both same-sex parents on their child’s birth certificate, the Seventh Circuit ruled Friday.

In 2015, eight lesbian couples living in Indiana filed a federal civil rights lawsuit, claiming that the state violated their constitutional rights by failing to include both parents’ names on their children’s birth certificates.

Indiana State Capitol. (Photo by Massimo Catarinella via Wikipedia Commons)

Children born to the couples were legally defined as born “out of wedlock” on state-issued certificates since the state required the mother and biological father named on the children’s birth certificates.

But a federal judge struck down the state law regulating birth certificate documentation in 2016, finding that requiring a biological relationship or a legal adoption to exist in order for both same-sex parents to be named was a violation of the equal protection and due process clauses of the 14th Amendment.

The U.S. Supreme Court came to the same conclusion a year later in a case challenging Arkansas’s birth certificate policy.

Following Supreme Court precedent, the Seventh Circuit affirmed Friday that Indiana must list both same-sex parents on the birth certificate of a child born to one of the women in the marriage.

“Because Indiana lists a husband as a biological parent (when a child is born during a marriage) even if he did not provide sperm, the district judge concluded, it must treat a wife as a parent even if she did not provide an egg,” wrote U.S. Circuit Judge Frank Easterbrook, a Reagan appointee, for a three-judge panel.

“We agree with the district court that, after Obergefell [v. Hodges] and Pavan [v. Smith] , a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages,” Easterbrook continued.

The opinion was joined by U.S. Circuit Judges Joel Flaum, a Reagan appointee, and Diane Sykes, a G.W. Bush appointee and one of the most conservative members of the Chicago-based appeals court.

However, the appeals court found that the district court’s injunction went too far by enjoining the entirety of the state’s law governing birth certificate documentation.

For example, there may be a situation where “the birth mother conceives through sexual relations with a man and freely acknowledges the child’s biological parentage,” Easterbrook said.

Revising the law’s language is a matter best left for the Legislature to decide, the 10-page opinion stated.

“A state is entitled to separate the questions ‘whose genes does a given child carry?’ from ‘what parental rights and duties do spouses have?’” Easterbrook said. “The problem is that Indiana appears to merge these questions while specifying that biological heritage wins in the event of conflict — yet providing husbands with a presumption, withheld from wives, that a given legal status supports an inference of parenthood.”

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