The news on the day the U.S. Supreme Court released Obergefell v. Hodges was filled with same-sex couples standing in front of microphones expressing their joy at the court’s decision to redefine marriage in all 50 states. One interview struck me more than the others: two women making a statement on how they could finally change their children’s birth certificates to include both women’s names — and only their names.
In the months that have followed, I have noticed more and more mention of something I have honestly thought little about — the birth certificate. There is a push to revise birth certificates to legally institute two men or two women as birth parents. An op-ed piece in the Los Angeles Times argued that, in the wake of the Supreme Court ruling, “The battle over LGBT equality is far from over.” Douglas Nejaime regrets that “marriage equality doesn’t immediately erase all attachments related to biological, dual-gender child-rearing.”
Traditionally, states have made the assumption that any child born to a married woman was fathered by her husband. So married couples automatically had their names placed on a birth certificate as biological parents to a child born to a married woman. Of course, there were certainly cases when a woman’s husband was not the genetic father, but it was a reasonable assumption by the state that a woman’s husband was the father of her children.
Nejaime contends that because married same-sex couples are not automatically placed on a child’s birth certificate in every state, this is relegating same-sex couples to “second-class status.” He points out that this “marital presumption is emerging as a battleground.”
Nejaime is right that marital presumption for same-sex couples is developing into a battleground.
Parenting magazine reported the story of Utah couple Angie and Kami Roe. They sued the hospital where their daughter was born because the hospital did not allow the listing of both mothers on the girl’s birth certificate. Judge Dee Benson ruled in favor of the women.
The Utah attorney general’s office pointed out that it is biologically impossible for a woman to be the genetic father of a child and argued that “listing non-biological parents on a birth certificate could throw off state recordkeeping and disrupt the ability of authorities to identify public-health trends.”
Benson justified his ruling by saying that married men that use donated sperm to conceive a child are still listed on the birth certificate as the father. The same situation should apply to women. Benson commented, “The state has failed to demonstrate any legitimate reason, actually any reason at all, for not treating a female spouse in a same-sex marriage the same as a male spouse in an opposite-sex marriage.”
It is true that married husbands or wives that use a third party in reproduction are still assumed by the state to be the genetic parent to any child born while they are married, and they are listed as such on a child’s birth certificate. With the marriage presumption, there has always been a percentage of cases where the presumption is wrong, whether due to donated sperm or egg or infidelity.
It is also true that, at this point in time, listing two men or two women as the biological parents of a child will always be an erroneous assumption.
Marriage presumption for same-sex couples means that birth certificates won’t be inaccurate a fraction of the time, but every time.
In the case of adoption, states have been issuing “amended” birth certificates since the 1920s and ’30s, where the biological parents are removed, and the adopted parents are listed instead. This was done to protect all parties involved, especially the child, from the shame of “illegitimacy.” In the case of the amended certificates for adoptees, the original records remain intact, but they are sealed. In some states, the adopted child can access his or her original birth certificate after turning 18. Some adoptee advocates are pushing to make this the law in all states. Others want to get rid of the amended birth certificate all together, calling it antiquated in a modern society where out-of-wedlock births are no longer stigmatized.
But if the marriage presumption extends to same-sex couples, the original, and only, birth certificate will list parents who cannot possibly be the biological progenitors of the child.
The public comments on the Utah couple’s victory were similar to those regarding Obergefell. Anyone who dare questions the wisdom of marriage presumption for same-sex couples is a bigot, and listing two people of the same sex as biological parents on a legal document means that “Love Wins!”
Yet in all of the coverage on birth certificates for children of homosexual couples, there is one perspective that is conspicuously missing — that of the person who it affects the most — the one to whom the birth certificate belongs.
Just like adoptees before them, children of anonymous sperm and egg donation are coming of age, and they are telling us that having an accurate birth certificate, one that has their actual biological parents listed, is very important to them. Some prefer “unknown,” “donor” or even a blank space to the name of a person that is not his or her biological parent.
Emma Cresswell, a British woman, fought for six years to get her “social father” removed from her birth certificate after she found out she was conceived with donor sperm. In 2014, she won her battle, and this has opened the door for other donor-conceived adults to do the same.
Damian Adams, an Australian man, is also suing to have his birth certificate changed. He wants “unknown” listed instead of the man he called dad because his genetic father is an anonymous sperm donor. Adams told ABC in an interview:
“I’m doing this because I want an accurate and factual record of my conception, of birth. I just want it to be what the birth certificate is supposed to be. It’s something that some animals have a more accurate birth record than I do, and I find that completely dehumanizing and wrong.”
Hope Catricala, an adult adoptee, says that the practice of issuing amended birth certificates for adopted children treats adoptees as second-class citizens. Cresswell and Adams would likely agree about inaccurate birth certificates for those conceived with donor gametes. And yet Nejaime argues in the Los Angeles Times that denying the marriage presumption to same-sex couples makes the parents the second-class citizens. Many who commented on the Roes’ case in Utah would agree with Nejaime.
Once again, in our overly politically-correct society, it is the rights of the children that are being overlooked in favor of what parents want. We are not listening to the people who are uniquely qualified to comment on this latest social experiment.
Complicating the issue is the fact that birth certificates serve a dual purpose. Not only are they a vital record of birth, proof of identity and ancestry, they also establish who is legally responsible for a child.
Ideally, the people who created the child would also be the ones to care for and raise that child. But with the increasing incidence of third-party reproduction and the advent of same-sex “marriage” across all 50 states, the birth certificate as we know it is going to have to change. Our modern society, where parental desires trump the best interests of the children, has created familial chaos. In its current form, the birth certificate can no longer be accurate and still serve as both a document that records biological parentage and also one that establishes legal guardianship.
Wendy Kramer, co-founder and director of the Donor Sibling Registry and a producer of MTV’s Generation Cryo and the Style Network’s Sperm Donor, argues that it is time for birth-certificate reform. She insists that the “best interests of the child be paramount,” and she proposes birth certificates that include space for genetic parents, legal parents and even surrogates. Of utmost importance is that all information is included about the child’s biological origins.
If the marriage presumption is extended to same-sex couples, and there is no reform in how birth certificates are issued, tragically, children of same-sex couples will likely have pets that have more accurate biological records than they do. And unlike adoptees, who at least have original documentation of their biological parent or parents somewhere, the only vital record these children will have will say they were begotten of two women or two men. Time will tell if they, like Damian Adams, will also find their boldly inaccurate birth certificates “completely dehumanizing and wrong.”
Rebecca Taylor is a clinical
in molecular biology.
She writes about bioethics on
her blog Mary Meets Dolly.