Over six years after the Obergefell decision, lingering deficiencies remain in the way that states treat members of the LGBTQ+ community when it comes to family formation. Parents and prospective parents continue to be denied equal rights under the law. The latest example can be seen in a case out of Kansas.
Attorney David Brown shared his legal battle on behalf of a same-sex couple. The two women had been in a committed relationship for more than eight years when they decided to have a child together. They underwent the process to receive anonymous donor sperm for conception. After delivery in late September 2021, the birthing mom signed a consent form for her partner to be named as the other parent on the child’s birth certificate. The partner, in turn, signed the statutorily required acknowledgement of parentage and rights and responsibilities, the “Paternity Consent Form for Birth Registration.” Despite completing the legally required steps, the hospital refused to add the partner’s name to the child’s birth certificate application.
Brown became involved and advised the hospital that they were not in compliance with Kansas law. Hospital personnel spoke with folks from the Kansas Department of Health and Environment Office of Vital Statistics (Vital Statistics) that backed the hospital policy not to include both moms on the birth certificate. Brown quickly obtained a court order on behalf of his clients, which declared both partners the legal parents of the child. Rock chalk, Jayhawk courts!
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Despite the unambiguous court order, Vital Statistics still refused to place both parents on the child’s original birth certificate. The attorney for Vital Statistics, however, did agree that the office would “later” issue an amended birth certificate in compliance with the court order.
Separate And Almost Equal?
Brown and his clients did not agree to the discriminatory treatment, however short-lived, by Vital Statistics. Brown added Vital Statistics to the case, and obtained an injunction, which temporarily prevented Vital Statistics from issuing the birth certificate naming only one of the parents. Another victory for the rule of law in the Sunflower State. The case is set for another hearing on October 18, 2021.
Brown notes that Kansas law is clear, and does not require a parent to be either married to the birthing parent, nor genetically related to the child, in order to be named on the child’s birth certificate. After giving birth, a woman can consent to a man being named on the child’s birth certificate and, so long as he signs the necessary acknowledgement, Vital Statistics will include him on the original birth certificate. No marriage required. No genetic connection required. So why would a same-sex female couple be treated differently?
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There isn’t a good reason.
What’s The Harm?
Brown is currently fighting Vital Statistics’ claim that there is no harm in issuing a temporary, inaccurate birth certificate, and then later providing an amended birth certificate with the two women as parents. Brown disagrees. Aside from the obvious difference in treatment based on the sex of the parents, there can be real world consequences for the delay and for the birth certificate being an amended version.
During the gap in time between the original birth certificate and the amended one (Vital Statistics has not been clear on how long they intend for that gap to be), the second parent can be denied the rights and privileges of a legal parent. This could include the parent’s ability to even see their child in the hospital, the ability to take their child home from the hospital, the ability to make medical decisions for their child, as well as the ability to add the child to a health insurance policy. Further, the delay could create issues with other legal documents, such as a passport. Indeed, one time period when it really matters to have both legal parents on the birth certificate is early on in a baby’s life, when a lot of stuff is happening.
Separately, an amended birth certificate can raise questions for the child and parent later in life. Why wasn’t the parent included in the original birth certificate, for instance?
Something like an amended birth certificate versus an original birth certificate may seem small, but without legitimate justification, these differences in treatment are uncalled for.
So I will be sending continued luck to Brown and his clients on October 18. Let’s hope the Kansas courts keep getting it right.
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 [email protected].