Accurate Birth Certificates Make Families Less Vulnerable

Having accurate, government-issued identification documents such as a driver's license or birth certificate helps people define themselves with dignity, move about in the world with autonomy and even sometimes stay physically safe. Without such documents, it can be difficult to do such basic things as write a check or use a credit card, let alone get through security to fly on an airplane. Parents who don't have accurate birth certificates for their children have extra reason to dread medical emergencies, fearing that doctors will delay a child's emergency treatment while trying to figure out whether a parent has the authority to consent.

Lambda Legal has repeatedly argued that individuals have a right to accurate birth certificates in many arenas. We have advocated on behalf of transgender individuals who were unfairly denied court-ordered name changes, families who wish to take on a common surname to indicate that they are a loving and permanent family unit and lesbian and gay parents seeking birth certificates for their children that accurately identify both members of the couple as parents.

Lack of an accurate birth certificate makes a child vulnerable, especially when a family goes through economic hardship or faces an unforeseen crisis. For example, state agencies and employers often request birth certificates to enroll a child for benefits. Many states require parents to produce a birth certificate to law enforcement agencies to report a lost child and secure the child's return, or to seek assistance in locating a kidnapped child. If one parent dies and the other is not listed on a child's birth certificate, the survivor may have trouble establishing in various contexts that he or she is a parent. Further, when parents break up, state agencies commonly require birth certificates to obtain delinquent child support.

In several cases, we have gone to court to challenge a state's refusal to provide birth certificates to children listing two same-sex parents. In Finstuen v. Edmonson, the U.S. Court of Appeals for the 10th Circuit struck down Oklahoma's antigay "Adoption Invalidation Law," which attempted to deny any recognition to out-of-state adoptions by same-sex couples and prevented issuance of birth certificates listing both same-sex adoptive parents. In Adar v. Smith, we had similar success before a three-judge panel of the Fifth Circuit last February in reversing Louisiana's refusal to issue accurate birth certificates to children of same-sex parents. However, at the request of the Louisiana attorney general, the entire Fifth Circuit Court of Appeals has asked to hear arguments in January so that they can reconsider the case. We are hopeful that the court again will affirm the principle that every state must respect a child's adoption decree and the parental relationships it creates, including on the child's birth certificate.

We are also in court in Iowa seeking an accurate birth certificate for a one-year-old little girl, Mackenzie Gartner. Mackenzie's mothers, Heather and Melissa, have been together since 2003, and legally wed in Iowa in June 2009, after the Iowa Supreme Court unanimously held in Varnum v. Brien that the Iowa Constitution guarantees the equal right of same-sex couples to marry. A few months later, Heather gave birth to Mackenzie, who was conceived via anonymous donor insemination.

In Iowa, as in every other state, both spouses are presumed parents of a child born after their marriage. In accordance with this presumption, Iowa law for over 50 years has required the state registrar to issue a birth certificate to a child born to a married couple listing both spouses as parents. This birth certificate rule is mandatory and has been enforced for married different-sex couples even in cases where overwhelming evidence existed that the husband was not and could not possibly be the genetic father of the child.

In reliance on this rule, the day after Mackenzie's birth, Heather and Melissa filled out a form at the hospital for Mackenzie's birth certificate indicating that they were a same-sex couple married in their home state of Iowa. However, the state sent a birth certificate to Mackenzie naming solely Heather as her parent and leaving the second space blank. The state has refused to correct the error, arguing that children of married same-sex couples should not benefit from the same presumption of parentage that applies to other children of married parents.

In taking this position, Iowa stands alone among the states that have permitted gay and lesbian couples to marry or enter into civil unions or comprehensive domestic partnerships; every other state has issued accurate birth certificates to children of same-sex couples listing both members of the couple as parents in reliance on the legal relationship between the adults. In addition, in a recent Lambda Legal victory before New York's highest court in the case Debra H v. Janice R, we made clear that even New York—which does not itself issue marriage licenses to same-sex couples but nevertheless respects the marriages or civil unions of same-sex couples validly performed elsewhere—will honor the presumption of parentage for children born to couples in such legally sanctioned relationships.

We are confident that Iowa courts will correct the state registrar's error and order an accurate birth certificate for Mackenzie listing both Heather and Melissa as her parents. In the meantime, however, the family feels vulnerable, reluctant to travel, and frightened of what may happen to them in an emergency.

A few months ago, Mackenzie became seriously ill and was hospitalized in intensive care. Heather maintained an exhausting vigil at Mackenzie's bedside day and night because Heather and Melissa both feared that, without an accurate birth certificate, the hospital would not recognize Melissa as a parent and permit her to make decisions or even remain with Mackenzie if an emergency occurred in Heather's absence. Later, when Mackenzie needed a surgical procedure, Heather had to take time off from work to be present during the procedure and Mackenzie's complete recovery even though Melissa, as the stay-at-home parent, was available to care for Mackenzie and the couple would have preferred to avoid having Heather miss as much work. These stresses and frustrations compounded the anxiety the family already felt over their infant's terrifying illness.

The struggle to obtain an accurate identification document may seem like a mundane procedural matter, but for many individuals and families, it is a struggle for basic fairness, respect and security. While governments have control over issuance of these key documents, governments cannot be permitted to exercise such control arbitrarily or unfairly. It's up to us to hold governments to their obligation to respect our autonomy, and we will keep bringing cases until they do so.