Last December, Indiana was pulled into the spotlight when two married lesbian couples sued the state’s health commissioner and other government officials for not allowing the names of both mothers to be placed on their babies’ birth certificates absent an adoption. The women claim a violation of their Fourth Amendment due process and equal protection guarantees. The lawsuit is making some noise and is getting the notice it deserves. Other states have heard similar cases in the wake of the Supreme Court’s legalization of same-sex marriage. While the Court ruled firmly on the issue of marriage, issues related to parentage and other ancillary rights were left on the table and have been decided on a state-by-state basis where same-sex couples have taken legal action.
For example, female spouses can now be listed on their child’s birth certificate in Utah, Kansas, and Iowa. Lambda Legal, an LBGT rights group, stated that lawsuits of this nature are also occurring in North Carolina and Wisconsin.
Since the December coverage in Pride Source, six additional married lesbian couples have joined in the Indiana lawsuit and are being represented by Karen Celestino-Horseman.
Tom Davies of the Associated Press wrote, “A federal judge in Indianapolis heard arguments over whether state law wrongly forces the spouse who didn’t give birth to go through a costly adoption process to be legally recognized as the child’s parent – something a husband in a heterosexual marriage is routinely granted. The couples want state officials to treat married lesbian couples the same as heterosexual couples who have used artificial insemination to have children.”
According to the coverage, the state attorney general’s office maintains that the Indiana law is fair since parental rights can be established through either a biological relationship to the child or through an adoption.
Plaintiffs in the case include Jackie and Lisa Phillips-Stackman. These women were married on Oct. 5, 2015, and have a baby girl who was born weeks later. While Lisa carried the baby, the embryo was created with Jackie’s egg and sperm from a donor. While Lisa has no genetic tie to their daughter, she is listed on the birth certificate and Jackie is not. Under Indiana law, Jackie must adopt her own biological child.
“The thought of having to adopt my own child just rubbed me wrong, especially with all the planning we had done. It’s offensive,” Jackie Phillips-Stackman told The Indianapolis Star.
The Stackman family certainly isn’t alone with their viewpoint. Many find this unfair and patently discriminatory against same-sex couples.
Their attorney, Celestino-Horeseman, explained that a heterosexual couple who uses a sperm donor to conceive their child doesn’t have these issues. The husband, who has no biological link to the baby, is placed on the birth certificate with no adoption or other further steps required.
Same-sex married couples are not afforded these same rights. Instead, the spouse who did not carry the child must undergo a costly adoption procedure in order to be legally recognized as a parent.
“Children of lesbian couples leave the hospital with only one parent, with the other woman not legally able to make medical decisions for the child or take actions such as school registration,” the attorney told reporters. She continued, “They carry documents with them that say if anything happens to the birth mother that they have power of attorney to act on behalf of that child but they can’t get things like passports showing both their names.”
This type of mindset underscores inequality and the courts have some catching up to do. Many are anxiously waiting for U.S. District Court Judge Tanya Walton Pratt to make her decision and are hoping that Indiana falls in line with other states who have decided the issue of parentage favorably for same-sex couples in the wake of the Supreme Court’s decision on marriage equality.