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
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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