Family Law, Gay, Health Care / Medicine, Kids

Arkansas Just Became An Even Worse Place To Be A Parent If You're Gay

Same-sex couples must be treated the same under the law as heterosexual couples -- which Arkansas doesn't seem to get.

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gay-lesbian-parents-child-family-lgbt-familiesA Caitlin Jenner Surrogacy. Before addressing the latest depressing court ruling in the assisted reproductive world, I can’t not talk about the hot celebrity gossip in the area. Joining her former step-daughter Kim Kardashian, Caitlin Jenner is rumored to be investigating surrogacy as an option for having a(nother) child. Jenner is reported to be wishing to have a biological child and experience parenthood as a mother. Per trusted sources (it’s possible we have different definitions of what’s a “trusted news source”), she is currently investigating candidates, and hoping that the chosen one will live with her and let her closely monitor and experience the joys of pregnancy with her. (Note: Gossip Cop, citing an unnamed rep for Jenner, claims that this rumor is not true.)

Arkansas Ruling. On to the latest real news. Note that it doesn’t even involve a celebrity this time. Back in December 2015, it was exciting to see an Arkansas judge rule in favor of three married same-sex couples who had been denied the ability to place the non-biological spouse on the birth certificate of their child. Judge Tim Fox determined the Supreme Court’s decision in the Obergefell case would make it a violation of the Equal Protection and Due Process Clauses to deny same-sex couples the same rights as heterosexual couples. One of those rights is the ability to place the spouse of the birth mother on the child’s birth certificate. Makes sense to me.

Moving Backwards. Last week the Arkansas Supreme Court reversed Judge Fox’s ruling and admonished him. In a split decision, the court ruled that the state has an interest in tying a child’s birth certificate to its biological parents. As a result, the court held that the Arkansas Department of Health had not erred in refusing to issue birth certificates to the couples naming both parents without a court order.

Biological Ties? Really? That’s the Reason? The biological justification seems weak for a number of reasons. First, all of the plaintiffs in the case had used anonymous sperm donors. By denying the birth mom’s spouse from being placed on the birth certificate without a court order, they were denying the child a second parent.

Second, if it were a heterosexual couple applying, they would not have to prove either parent to be a biological parent to make it onto the birth certificate. In cases where either an egg donor or sperm donor (or both!) were utilized by a heterosexual couple, both parents have gone directly onto the birth certificate. No court order necessary. Much less a mandatory showing of biological relationship. A dissenting judge duly pointed out this incongruity.

The Admonishment of Judge Fox. This blog often points out when lawyers have been “benchslapped.” While that can be in good fun, it’s uncommon to see judges taking their lower-court colleagues to task.  Nevertheless, the Arkansas Supreme Court admonished Judge Fox for failing to act “in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”

What did the judge do to undermine the public’s confidence in the judiciary? He remarked that a stay of his judgment would “deprive persons of their constitutional rights, and that this court previously had deprived people of their constitutional rights.” But frankly, that comment is fully consistent with his ruling that the denial of the birth certificates was unconstitutional. And clearly the judgment was reasonable enough to merit a dissenting opinion from an Arkansas Supreme Court Justice. In short, hardly worthy of an intra-bench slap.

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More broadly, most states, following Obergefell, have taken the next logical step of reading marriage, parentage, and birth statutes with gender neutrality. But for now, it appears Arkansas will be a holdout. With the growth of assisted reproductive technology – including the use of surrogacy and egg and sperm donation – it no longer makes sense to always inextricably tie a child to its biological parents. And in the interest of equality, same-sex couples need to be treated the same under the law as heterosexual couples. Until we see the state headed in a more equitable direction, I recommend that Caitlyn Jenner steer clear of Arkansas for the birth or raising of her child.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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