Same-Sex Couples May Lose Parental Rights Case

Posted By Hollingsworth & Zivitz Attorneys at Law || 3-Jul-2017

In 2015, eight same-sex couples filed lawsuits against the State of Indiana challenging laws that only allow a birth mother, rather than two mothers, to be listed as a parent on a child’s birth certificate. In light of the landmark ruling in Obergefell v. Hodges that made same-sex marriages legal, federal Judge Tanya Walton Pratt found Indiana’s law that requires a same-sex spouse to adopt a child before they could gain parental rights discriminatory and unconstitutional.

Under Pratt’s Order, same-sex couples are afforded the same parental rights as opposite-sex couples, which means two mothers can be listed on a child’s birth certificate without the necessity of an adoption. Earlier this year, Indiana Attorney General Curtis Hill appealed the order and, looking to the remarks made at oral arguments by the three-judge panel for the Seventh Circuit Court of Appeals, it seems the Court may be leaning towards reversing Pratt’s ruling.

“You Can’t Overcome Biology”

Judge Diane S. Sykes drew distinction between biological parentage and parental rights stating, “You can’t overcome biology. If the state defines parenthood by virtue of biology, no argument under the Equal Protection Clause or the substantive due process clause can overcome that.”

Sykes’ statement brings to light an important point. Attorney for the eight couples, Karen Celestino-Horseman, argued that parenthood is no longer defined by biology, but Sykes fired back and pointed out, “That’s a policy argument to take to the legislature.”

Judges Seem to Be Leaning Towards Ruling Law Isn’t Discriminatory

There are two ways to get parental rights: through the adoption process or via the paternity statute. Under the adoption statute, a spouse who is not the birth mother must adopt a child to gain any legal parental rights. This is true even if the spouse used her egg for the pregnancy; so, although the birth mother may have no biological ties to the child, the State recognizes the birth mother as a parent.

In the situation above, the same-sex spouse who happens to be the egg donor, with biological ties to the child, is not considered a parent and does not have any legal parental rights. However, under the paternity statute, a husband can be presumed to be the father in an opposite-sex marriage, regardless of biological ties.

Celestino-Horseman argued wedded status should apply the same for same-sex couples as it does for opposite-sex couples. Sykes pointed out that the statute created a “paternity presumption that just is impossible in a same-sex marriage situation.” Rather than being a case of discrimination, the Judge pointed out that the couples may be seeking a redefinition of parenthood.

The couples argued further that opposite-sex couples can also say the husband is the father of a child even when that child is conceived via sperm donor. The law, however, requires a mother to state when the husband is not the father and just because people don’t follow the law, as Judge Frank H. Easterbrook pointed out, doesn’t make the law discriminatory.

The Judges took the case under advisement and should rule at a later date.

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