Lesbian spouses challenge Indiana birth certificate law

Keywords Law / Lawsuits / Legal Issues

An attorney for eight married lesbian couples argued Friday that the state of Indiana is discriminating against them by not allowing both women to be listed on their children's birth certificates, echoing a dispute that has led to similar lawsuits in several other states.

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.

Lawyers for the state attorney general's office maintained the law is fair by allowing parental rights through either a biological relationship or an adoption.

Both women spouses can now be listed on birth certificates in Iowa, Kansas and Utah after lawsuits in those states. Similar lawsuits are pending in states including Wisconsin and North Carolina, according to the LGBT-rights group Lambda Legal.

U.S. District Court Judge Tanya Walton Pratt didn't say when she would issue a decision on the Indiana case.

Karen Celestino-Horseman, an attorney representing the Indiana couples, said the state law was biased because both women in the marriage aren't recognized as parents like a wife and husband would be. Indiana birth certificates have listings for a mother and a father.

A heterosexual couple with a child conceived through a sperm donor can have the husband listed on the birth certificate without questions being asked, while a lesbian couple has no way for both women to be recognized as parents short of spending several thousand dollars on an adoption, Celestino-Horseman said.

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, she said.

"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," Celestino-Horseman said.

Same-sex couples were able to adopt children for several years in Indiana before federal courts struck down the state's gay marriage ban in 2014.

Deputy Solicitor General Lara Langeneckert argued that parental rights aren't a benefit of marriage, but should be based on a biological relationship or an adoption. The state maintains that the Indiana birth certificate doesn't discriminate on the basis of gender or sexual orientation by seeking to list the biological father.

"It is a way of identifying that person," Langeneckert said. "It doesn't create any rights."

One of the women in the Indiana lawsuit, Jackie Phillips-Stackman of Indianapolis, donated the egg that was carried by her wife, Lisa, who gave birth to their daughter last year. Phillips-Stackman said she was unable to carry a child and had embryos created with a sperm donor before meeting her wife.

"I have no legal tie to my own daughter and I'm told that I need to go through a stepparent adoption process," she said. "It's a little insulting, a little frustrating."

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