Dear SCOTUS, Please Do Not Humor Indiana’s Anti-LGBTQ+ Ways 

This case shouldn't merit any attention whatsoever by the Supreme Court.

The U.S. Supreme Court (Photo by David Lat).

The U.S. Supreme Court has curiously given a little too much attention to a case coming out of Indiana. Styled Box v. Henderson, the case involves eight same-sex female couples, who are either currently married, or who were married at the time that their children were born, and who brought suit in Indiana after one spouse of each couple was denied recognition as a parent on their child’s birth certificate.

Indiana law, like most states, has a “marital presumption of paternity,” which confers a presumption of parentage on the spouse of a woman giving birth. This was historically the husband of the woman giving birth, but states have updated their laws with the changing times, or at least their interpretation of such laws, to a gender-neutral stance. Most states that is. Except the Hoosier State.

Post-Obergefell and another case called Pavan, this case shouldn’t merit any attention whatsoever by the Supreme Court. It has already held that same-sex couples are entitled to marry and to enjoy the constellation of benefits that come with marriage — including parenting rights and identification on birth certificates. However, the Court went ahead and asked for additional briefing from the parties anyway. Right now, the case is scheduled to go to conference for a vote on December 11, 2020, on the issue of whether to hear the case.

What is Indiana trying to say? A lower court and the 7th Circuit Court of Appeals both found that Indiana applied the marital presumption to heterosexual couples regardless of genetic connection (aka if a sperm donor was used, the husband still gets to go on the birth certificate), and that the law was being applied in an unconstitutional discriminatory fashion by excluding same-sex couples. Despite this, the Indiana Attorney General has asked the Supreme Court to take the case, asking the Court to enable Indiana to exclude same-sex female couples from the marital presumption of parenthood.

It’s common sense! The Attorney General for Indiana argues that the state has a “biological” basis for the difference in treatment, and that the Supreme Court should know that its reasoning and arguments — despite seemingly nonsensical and difficult to follow at times — are common sense! We should be persuaded that they are common sense based on the repeated use of the term “common sense” in the Attorney General’s brief.

Confusingly, the Attorney General claims that the martial presumption does not, in fact, apply to a heterosexual married couple when a sperm donor is used. Instead, Indiana argues that any birth mom filling out a birth certificate application would know that she could not appropriately check “yes” to the question “are you married to the father of the child,” since her husband is not technically the biological father. I suspect, based on the court rulings to date in this case, that Indiana heterosexual couples who used sperm donors would be surprised to hear that they may have broken the law.

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Is it really the child’s biological connections at issue? Adding to the confusion are Indiana’s arguments concerning one particular set of plaintiffs that conceived through reciprocal IVF — meaning one woman went through an egg retrieval, an egg was fertilized in vitro with donated sperm, and a resulting embryo was transferred to the uterus of her spouse. The woman who carried the child to birth is not the genetic parent of the child. So while the Attorney General argues that the state’s interest is in a simple and efficient process and of recognizing a child’s biological parents, in this couple’s case the state denied recognition of the genetic parent on the birth certificate. The State explained that birth mom cannot say she is married to the “father” of the child — since even though her spouse is literally the baby’s genetic mother, she is not the “father,” and therefore cannot be included anywhere on the child’s birth certificate. In this scenario especially, the State undercuts its own arguments that a child’s birth certificate should reflect the child’s genetic parents.

Time to cite the travel bloggers. It gets worse. Blowing my mind as to what constitutes support for a legal argument in a brief before the Supreme Court, the Attorney General’s reply brief cites a Florida man’s blog post as support for the only possible meaning of “father” as biological father. The “Dadtographer” posted on his cruise-review blog explaining the difference between a “Dad” and a “Father.” Dadtographer’s interview with his 9-year-old son is cute, and he makes a sweet point about a “Dad” being involved with his kids (and the article is popular online) — but does that actually support Indiana’s position? The author didn’t think so. Dadtographer himself, Daniel Ruyter, explained that he is very much for equal rights and protections when it comes to same-sex couples and parents. He opposed his words being used to limit the rights of any parent “no matter if they were in a traditional or nontraditional family relationship.”

We should be worried, but not panicked. The Court’s personnel have changed since its 5-4 ruling in Obergefell in 2015. Only three justices from the majority in that case remain on the Court. And even with Chief Justice Roberts’ apparent move toward Obergefell as binding precedent in Pavan, that still only gives the same-sex parents in this case four solid votes. So far, the Court has only asked the same-sex parents to brief the issue of whether the Court should hear the case in the first place. So maybe that’s no big deal. Maybe they will vote against granting it once they convene and have a chance to discuss it. Let’s hope they follow that course. Indeed, why waste time on a confusing, internally inconsistent birth certificate process in one state?


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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