Who are the parents of a child when it is born? Biology dictates that the genetic make-up of a child comes from one man and one woman. But the U.S. Supreme Court says that biology isn’t the end of the story.
“Husband” and “Wife” After Obergefell
Since the 2015 U.S. Supreme Court decision Obergefell v Hodges in 2015, gay and lesbian couples have been able to marry, giving them access to the thousands of state and federal rights connected to the word “spouse.” But the transition to marriage equality hasn’t been smooth. States have been faced with the daunting task of interpreting laws written before the decision in a constitutional way.
In some courts, judges have generalized the terms “husband” and “wife” to “spouse”. But in Arkansas, the Department of Health took a different approach. State law there said, “For the purposes of birth registration . . . the mother is deemed to be the woman who gives birth to the child. . . . If the mother was married at the time of either conception or birth, the name of [her] husband shall be entered on the certificate as the father of the child.” If a couple used artificial insemination with an anonymous sperm donor, Arkansas requires that the woman’s husband be listed as the child’s father on the birth certificate.
Were Arkansas Birth Certificates Unconstitutional?
Two Arkansas married lesbian couples used sperm donors to conceive children. But when they submitted the paperwork for their children’s birth certificates, based on their understanding of Obergefell, the Department of Health refused to list the women’s spouses as parents.
The couples filed suit against the state of Arkansas in Pavan v Smith, arguing that by refusing to list a mother’s same-sex spouse on a child’s birth certificate, the state was unconstitutionally discriminating against LGBT couples. The Arizona state Supreme Court disagreed. It held that the birth certificate statue “centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife.”
The U.S. Supreme Court Weighs In
Family law issues like paternity and the issuing of birth certificates are usually up to each individual state. But when a state law, or interpretation, crosses a constitutional line, the U.S. Supreme Court can step in to protect the people that law harms. That’s what Justice Kennedy did in the Obergefell decision, and it’s what the Supreme Court did again in Pavan v Smith on June 26, 2017.
The court found that by refusing to issue birth certificates including the female spouses of women who gave birth in the state, the Arkansas Department of Health was infringing on Obergefell’s “commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.’” The court did not accept that birth certificates were simply documentation of biology. Referencing the statute protecting husbands’ rights in sperm donor situations, the court said the agency’s decision causes same-sex couples to receive unconstitutionally disparate treatment from their opposite-sex counterparts, and was therefore unconstitutional.
Will Pavan Affect Michigan Law?
Michigan paternity laws are quite similar to the Arkansas statutes in question. The laws assume that when a woman gives birth to a child, her husband is the father of that child. There are also similar statutes to protect intended fathers in artificial insemination cases. To date, same-sex couples have been successful in receiving birth certificates with both parents’ names on them. Pavan supports this interpretation of Michigan’s paternity laws and ensures that lesbian couples’ rights are protected going forward.
Lisa J. Schmidt is a family lawyer for Schmidt & Long, PLLC, in Ferndale, Michigan. She represents LGBT parents in divorce, custody, and adoption matters. If you are facing family law challenges, contact Schmidt & Long to schedule a free consultation.