Friday May 14, 2010

Lesbian Couple Demands Listing as Child’s Parents on Birth Certificate

By James Tillman

DES MOINES, Iowa, May 14, 2010 ( — Two lesbian woman legally “married” in Des Moines last year have filed a lawsuit against the state health department after it refused to name both women on the birth certificate of one woman’s biological daughter.

Heather Gartner and Melissa Gartner filed the lawsuit last Friday on behalf of the infant Mackenzie, who was born last September, with the assistance of the “gay rights” organization Lambda Legal.

Prior to the 2009 legalization of gay marriage in Iowa, Heather and Melissa Gartner had raised a son to whom one of them had given birth; at that time, one of them went through the process of legally adopting the boy. Later, the couple “married” and filed the paperwork for both to be listed as parents on the newly-born Mackenzie’s birth certificate.

However, the Iowa Department of Heath refused and listed only the biological mother, since Mackenzie is not biologically related to Melissa Gartner, and because Gartner had not adopted her. This refusal was grounded in the belief that the registration of births in Iowa recognizes the biological roles of mother and father.

Tom Newton, director of the Iowa Department of Health and one of the defendants named in the suit, argued that without recognition of this reality, the rights of fathers might go unrecognized.

“It is a biological impossibility for a woman to be a biological father of a child, yet Plaintiffs contend that in all cases of children born to lesbian couples the non-birthing spouse should be entered on the birth certificate as the father with no notice provided to the biological father,” Newton said in a statement.

“While these Plaintiffs may have conceived using an anonymous sperm donor, clearly not all lesbian couples conceive in that manner, and the legal rights and duties of these biological fathers and their children remain in limbo unless an adoption has occurred.”

Camilla B. Taylor, an attorney with Lambda Legal, argued that birth certificates had to do with social, rather than biological, reality.

“The purpose of spousal presumption of legitimacy–and Iowa’s birth certificate which reflects the presumption–has always been to protect children from the historic stigma of what was termed ‘illegitimacy’ or ‘bastardy,'” she said. Taylor continued, stating that Iowa’s rules “are not about determining genetic parentage, but are about protecting children and their relationships to two people–the spouses, who are most likely to be the people the child considers to be parents.” Taylor also argues that Iowa “stands alone” in its current position.

The suit filed by Melissa and Heather Gartner argues that the process of adoption is “expensive, intrusive, and laborious.”

The Iowa Department of Health is willing to name the lesbian guardians of a child as the child’s parents if one of them is willing to follow the adoption procedure.

“This process protects the rights of the same-sex couple and their child, respects the rights of the biological parent, and conforms with the Varnum decision,” writes Newton.

Same-sex “marriage” became legal in Iowa after the Iowa Supreme Court upheld Varnum v. Brien on April 3, 2009. In this case the Supreme Court held that an Iowa statute defining marriage as only between a man and a woman violated the equal protection clause of the Iowa constitution.

The lawsuit was names as defendants both Tom Newton and Jill France, bureau chief of vital records.