Consider a scenario in which a woman gives birth to a child after which her “significant other” goes through the adoption process – later described as “as expensive, intrusive, and laborious” -in order to be able to fully parent the child. The couple then gets married and the woman has a second child. The couple asks for the signficant other / spouse to be put on the child’s birth certificate, an act which, among other effects, will make the significant other liable to provide support for the child.
Here’s the question: on these facts, would it be a good thing or a bad thing to allow the spouse to be put on the birth certificate? Is it preferable to make the spouse other go through the adoption process again? Is it preferable to leave the child with only one person who is legally responsible for her support? Frankly, the answer is pretty obvious.
Now let’s include one more fact: the spouse is a woman. This additional fact caught the interest of the Iowa Family Policy Center, a program of Chuck Hurley’s The Family Leader, which submitted a brief in Gartner v. Iowa Department of Public Health to argue that the lesbian spouse should not be put on the child’s birth certificate. On its face, their argument seems to be about the importance of having paternity affidavits reflect biological parentage. The effect of their position – other than leaving some children more vulnerable – would be to give parental rights to, in this case, anonymous sperm donors. That’s an odd “family policy,” for which the Iowa Supreme Court speaking by Justice David Wiggins had some sharp words:
It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children. By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth. Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice.
This particular case, which we earlier reviewed after the district court decision, was about whether Melissa Gartner, who had married Heather Gartner, should be on the birth certificate of a child born during their marriage. Although, given its statutes and forms, the Department of Public Health can’t be blamed for litigating the matter, it’s a fairly obvious legal conclusion that, given the constitutional right to marry in Iowa, a same-sex spouse should be on the birth certificate of a child born during the marriage. As Justice Mansfield’s concurrence states in a dry legalese fashion:
The Iowa Department of Public Health accepts the decision in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), for purposes of this appeal. I agree that if Varnum is the law, then Iowa Code section 144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s request to be listed as parent on the birth certificate of the child delivered by her same-sex spouse.
Having said that, the case does say some noteworthy things about the historical presumption of fixing legal rights and obligations on the spouses of children born during their marriage. For example,
the presumption in Iowa functions to ensure a child’s right to financial support against a spouse’s claim of not being a biological parent.. . . It thwarted the possibility that children would become wards of the state and promoted familial stability by preventing “a third-party putative father from insinuating himself onto an intact family by claiming to have sired one of the family’s children.”
… “This rule is founded on decency, morality, and public policy. By that rule, the child is protected in his inheritance and safeguarded against future humiliation and shame. Likewise, under the rule, the family relationship is kept sacred and the peace and harmony thereof preserved. No one, by incompetent evidence, can malign the virtue of the mother, and no one, by such evidence, can interrupt the harmony of the family relationship and undermine the sanctity of the home.”
Whether the bit about avoiding humiliation and shame is a cogent argument in these circumstances and in our age is an open question. But it does seem like sound policy to ensure that a child born during a lesbian marriage has two people obligated for her support, two people with the authority to make decisions for her, and some measure of protection against the possibility of a sperm donor making a claim for parental rights.
If you’re keeping score, put this one done as a plus for the courts and a minus for Chuck Hurley‘s folks whose position only serves to further marginalize their role in Iowa politics.