When a child is born to a woman who is married to another woman, does the child have two legal parents at birth? In a recent ruling, in Gartner v. Iowa Department of Public Health, the Iowa Supreme Court ruled that the state was constitutionally required to list the spouse of the mother—regardless of gender—on a child’s birth certificate. This is one of many issues that have arisen in the rapidly changing law of parentage, as courts and legislatures adapt to the increase in planned gay families, the increased complexity and accessibility of reproductive technology, and changing social norms surrounding childbearing.
The Changing Gartner Family, and Changing Iowa Law
Melissa and Heather became a couple in 2003. Three years later, they participated in a non-binding commitment ceremony with family and friends. (At the time, their home state of Iowa did not permit them to legally marry.) They desired to have children together, and decided that Heather would serve as the biological mother, and Melissa would be a stay-at-home parent. Using sperm from an anonymous donor, Heather became pregnant and gave birth to a first child in 2007.
At the time of the birth, at which Melissa was present, there was no mechanism to allow both women to be listed on the birth certificate. Heather was listed as the mother and the space for father was left blank; the sperm donor was not listed, under the terms of a non-paternity law for anonymous donors. Instead, the couple successfully completed a second-parent adoption, which included, as most adoptions do, invasive screening procedures and significant expense. After the adoption was finalized, the state’s Department of Public Health (“the Department”) issued a new birth certificate reflecting the child’s two legal mothers, Heather and Melissa.
In 2009, the Iowa Supreme Court made national news for its surprising and unanimous decision in Varnum v. Brien, in which it held that the state’s ban on same-sex marriage violated the state constitution’s guarantee of equal protection. Iowa was not the first state to legalize same-sex marriage—Massachusetts came first in 2004, followed by a handful of others in 2008—but it was the first to do so outside of the liberal confines of the Northeast. (Three additional states—Delaware, Rhode Island and Minnesota—have legalized same-sex marriage in just the past month, bringing the total to twelve states plus the District of Columbia.)
The move to same-sex marriage in Iowa was not universally supported. In 2010, three of the seven justices who joined the Varnum opinion were recalled from the bench because of the decision. But efforts to amend the Iowa constitution to override the decision have not been successful, and same-sex marriage seems to be in Iowa to stay, as the general trend is moving rapidly in favor of recognizing same-sex marriage nationwide.
With respect to the Gartner family, the ruling in Varnum both gave them the ability to marry and, as I will discuss below, strengthened their case for listing two mothers on a birth certificate. Shortly after Iowa started issuing marriage licenses to same-sex couples, Melissa and Heather married. At the time, Heather was six months pregnant with her second child, who was conceived with sperm from the same anonymous donor.
Baby MacKenzie arrived in September 2009. While still in the hospital after the birth, Heather and Melissa filled out the birth certificate form (provided by the Department). They listed both women as the child’s legal parents and indicated that they were married. But when the Department processed the form, it dropped Melissa and issued a birth certificate indicating that MacKenzie had only one parent—Heather. The space for a second parent was left blank.
Challenging the Department’s Action: Must the Birth Certificate Include Both Mothers?
Heather and Melissa first wrote to the Department asking them to issue a corrected birth certificate—one that recognized both women as MacKenzie’s parents. Perhaps, after all, it was an oversight or a mistake that led to the omission of Melissa’s name. (When I filled out the birth certificate form for my first child and gave him my last name, I received not one, not two, but three phone calls from the county registrar trying to clear up the “mistake” since I was married but did not give the child his father’s last name.)
But there was no mistake. The Department refused to list a second mother, based on its interpretation of the Iowa Code. According to this interpretation, the non-birthing spouse in a lesbian marriage cannot be listed on a birth certificate unless she has adopted the child, which would trigger the issuance of a new birth certificate.
Melissa and Heather sued to force the issuance of a new birth certificate. The trial court ruled that the Department erred; it should have included Melissa as a legal parent based on the presumption that a person married to a child’s biological mother is the child’s legal parent. Because its ruling would logically apply to all other lesbian couples who are married at the time of a child’s birth, the trial court agreed to stay its ruling (other than as applied to the Gartner family) pending review by the state’s highest court.
The Iowa Supreme Court’s Ruling in Gartner v. Gartner
The Iowa Supreme Court sided with Heather and Melissa, ultimately. The ruling relied first on a point about administrative law: Did the Court owe any deference to the Department’s interpretation of the applicable Iowa Code provision? The Court answered that question in the negative, holding that because the legislature had not specifically granted the Department the authority to interpret the presumption of paternity or other relevant provisions. Thus, the Court reasoned, the trial court should have reviewed the question de novo, without regard for the Department’s view of the proper application of the statute.
Proceeding then to a clean-slate review, the state Supreme Court considered the statute’s intended meaning. Like most states, the Iowa code makes use of a presumption of parentage, which dictates the procedure for identifying parents on a birth certificate. The statute provides: “If the mother was married at the time of conception, birth, or at any time during the period between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.” And if the mother was “not married at the time of conception, birth, and at any time during the period between conception and birth, the name of the father shall not be entered on the certificate of birth, unless a determination of paternity has been made pursuant to section 252A.3, in which case the name of the father as established shall be entered by the department. If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.”
The problem for Heather is that she doesn’t obviously fit into either of these categories. She is legally married under Iowa law, but not to someone who is “the husband,” “the father,” or someone else whose “paternity” can be determined. And she isn’t single, which suggests that she is not in the category of mothers whose second slot must be left blank without a prior court order establishing parentage.
The Presumption of Paternity: Can it be Applied to a Lesbian Co-Parent?
In applying the statute to Heather, the court considered the purpose of the presumption of parentage and its history. Historically, the presumption of paternity for married women’s husbands was rooted in a desire to give children the benefit of two legal parents; to confer legitimacy; and to tie husbands to the children they, in most cases, fathered (especially in a time when science could not definitively prove or disprove paternity). As it has been applied in practice, the presumption benefits children even in some cases when the husband is not the biological father of his wife’s offspring.
In most states that have embraced marriage equality for same-sex couples, whether by judicial decision or legislative action, a same-sex, married co-parent is entitled to the same presumption of paternity as a husband is. The trial court in the Gartner case ruled that the Iowa provisions should be interpreted the same way—such that the Department must list Heather’s spouse as the second parent on the birth certificate. But the state’s highest court disagreed—it held that the statute is not susceptible to that interpretation.
The court considered various rules of statutory construction, especially those that relate to the substitution of gender-neutral terms for gendered ones in statutory language. Could the court just read “husband” as “spouse” and “father” as “parent” in order to bring Melissa and other lesbian co-parents under its umbrella? The court said no.
When a statute consistently uses “he,” the court said, a court can reasonably apply the rule to men and women. It was this rule of construction that led an Iowa court to allow Bella Mansfield to secure a law license in Iowa in 1860 despite a statute that restricted admission to “white male persons.” (Mansfield was the first woman to be licensed as a lawyer in the United States.) But the rule does not work both ways. When a statute refers only to a feminine gender, such as to provide benefits for widows, it cannot be extended to include males (here, widowers) on the theory that the legislature’s choice of words probably reflects a specific intent to address a particular problem, rather than just a default reliance on masculine pronouns.
What if a statute, however, uses both masculine and feminine words? Then, the court explained, the statute cannot be applied in a gender-neutral manner because doing so would “destroy or change” the plain language of the statute and nullify the legislative intent. The statute setting forth the presumption of parentage is just such a statute. The legislature clearly intended, in the court’s view, to “unambiguously differentiate between the roles assigned to the two sexes.” It drafted the statute to treat men as husbands and fathers; and women as wives and mothers. The court refused to nullify this intent by reading all labels to be gender-neutral.
That said, the court did deprive the legislature, in the end, of its purported desire to assign parental roles based on sex. It did so by concluding that the presumption of paternity was unconstitutional both on its face and as applied, because it refused to presume the female spouse of a mother to be the second legal parent, while treating the male spouse of a mother to be the second legal parent.
The Iowa constitution contains two clauses that the court deemed relevant here. First, article I, section 1 declares that “All men and women are, by nature, free and equal. . . .” Second, article I, section 6 provides that “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” This latter clause is treated much like the Equal Protection Clause in the Fourteenth Amendment to the federal Constitution.
In Varnum, Iowa’s same-sex marriage case, the justices found that same-sex couples were similarly situated enough to force the government to come forth with good enough reasons to deny one group the right to marry while granting it to another. In the Gartner case, the justices considered the purpose of birth certificates in order to decide whether lesbian married couples are similarly situated to heterosexual married couples. The court concluded that birth certificates were designed to establish the fact of a birth, to identify a child for immunization purposes, and to verify a person’s identity and date of birth for governmental purposes like the issuance of driver’s licenses or passports.
The birth certificate serves these purposes for all couples—it is the government’s way of providing formal recognition for a child. This threshold finding of similarity paved the way for the court to then look to the nature of the classification in the statute. The court concluded that the statute embodied a sexual-orientation classification, which, under the ruling in Varnum, merits heightened scrutiny. The burden was on the government to show that the statute was substantially related to an important governmental interest.
With this level of scrutiny applied, the birth certificate statute failed to survive. The statute clearly allows for the husband of a biological mother to be listed on the birth certificate, even when the sperm was clearly provided by an anonymous donor. Yet, it disallows the female spouse of a biological mother from being listed under exactly the same circumstances. Moreover, while the court agreed with the Department that its system of presumptively listing husbands as fathers is efficient because most of the time the presumption of paternity will not be rebutted (either the man at issue is actually the father, or the facts showing otherwise will never come to light), even greater efficiency could be achieved by presuming married lesbian co-parents to be mothers because the presumption of parentage in those cases would never be rebutted as long as the sperm donor remained anonymous.
The Department also tried to defend its system by arguing that the government has an interest in ensuring financial support for a child, and in protecting the fundamental legal rights of its father. But, as the court explained, when “a lesbian couple is married, it is just as important to establish who is financially responsible for the child and the legal rights of the non-birthing spouse.” As the same court (minus the three justices who were recalled and replaced) explained in Varnum, “[s]ociety benefits . . . from providing same-sex couples a stable framework within which to raise their children . . . just as it does when that framework is provided for opposite-sex couples.”
Given that the statute had no articulable basis (at least none that made sense), the Iowa Supreme Court concluded that its refusal to recognize married lesbian co-parents must be a function of stereotype or prejudice. And this is not a constitutionally adequate justification for differential treatment.
The court thus affirmed the lower court’s ruling, ordering the Department to issue a new birth certificate for MacKenzie reflecting the identity of both her mothers. Moreover, it lifted the stay vis-à-vis other lesbian couples in the same situation, which allows all of them—if they were married at the time of conception, pregnancy, or birth of a child—to petition for new birth certificates. (While there was no dissent in the case, two of the justices wrote separately to say that if Varnum is right, then the majority in this case is right, suggesting that they, if given the opportunity, might revisit the right of same-sex marriage.)
The Iowa court reached a sensible result in this case, joining the many other states that have extended presumptions of paternity to lesbian co-parents. It is not entirely clear, however, under this Iowa ruling or under rulings from other states, when and under what circumstances the presumption of parentage for a lesbian co-parent can be rebutted. For men, it can often be rebutted by scientific evidence showing the lack of a genetic connection to the child or the lack of consent to use of anonymous donor sperm. Given that the presumption of parentage for a female co-parent cannot be a proxy for a biological connection to the child—that’s the one thing we know she doesn’t have—legislatures should make clear the basis for the presumption and the circumstances, if any, under which it may not ultimately dictate parentage. This ruling also did not need to reach a question (which I have explored here, here, and here) that is, in some ways, more difficult: Should lesbian couples have to be married (or in a civil union) in order for the non-biological parent to be treated as a co-equal parent in the eyes of the law? Or should the members of the couple’s intent to co-parent be sufficient?
This is a bit of a tricky issue but if husbands whose wives obtained an anonymous sperm donation is deemed the father in cases of this nature, the wife in this case should as well — in both cases, spouse is not the biological parent, so if the husband gets the benefit of the presumption in one case, the wife/spouse should.