Marilyn Odendahl for www.theindianalawyer.com
Indiana married same-sex couples have won the right to both be listed as parents on their children’s birth certificates.
The U.S. District Court for the Southern District of Indiana struck down the state’s parenthood statutes Thursday as violating the Equal Protection and Due Process clauses of the 14th Amendment in the consolidated lawsuit of Henderson, et al. v. Adams, et al., 1:15-cv-00220.
Judge Tanya Walton Pratt granted summary judgement for the lesbian couples who brought the suit. She wrote, “The public interest in serving the best interests of the child will not be harmed by injunctive relief but actually will be furthered by legally recognizing two parents for children and providing stability for children and families.â€
The couples filed the suit because the state would only allow the birth mother to be listed on the certificate and did not include the second parent. They asserted the state parenthood statutes violated the 14th Amendment because they create a presumption of parenthood for men married to birth mothers but not for women married to birth mothers, thus stigmatize the children born to same-sex couples as children born out of wedlock.
In particular, the lesbian couples argued the state’s refusal to grant parenthood status to female spouses of artificially inseminated birth mothers while granting the status of parenthood to male spouses of artificially inseminated birth mothers violates the Equal Protection Clause.
In cases of heterosexual couples who become pregnant through the aid of the third-party sperm donor, the state will presume parenthood of the child to the husband. This same presumption is not afforded to the female, same-sex spouse of a birth mother who also becomes pregnant in the same manner.
The state countered the parenthood statutes are applied equally to all male and female spouses of birth mothers. A husband who is not the biological father of the child should not be listed on the birth certificate because the birth mother should acknowledge she is not married to the father of her child when she has been artificially inseminated. In such a case, the husband would have to adopt the child to be listed on the certificate and recognized.
Pratt found the state’s argument to be inconsistent with common sense.
“Common sense say that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception and who intends to treat the child as his own, would indicate that she is married to the father of her child,†she wrote. “Why would she indicate otherwise?â€
Indiana Attorney General Greg Zoeller released a statement Thursday saying his office is reviewing the ruling and has not yet determined whether it will appeal or seek a stay of the ruling.
County health department defendants were also dismissed from the lawsuit by Pratt Thursday, leaving the Indiana State Department of Health commisioner as the defendant.