Rich-Vaughn-Blog-Iowa-Supreme-Court-Ruling-Parentage

Iowa Supreme Court Ruling A Mixed Blessing for LGBT Parentage Law

The Gartner family of Iowa received wonderful news on May 3rd when they were notified that the Iowa Supreme Court agreed with them that the Department of Health must include Melissa, the nonbiological mother of the couple’s daughter Mackenzie, on Mackenzie’s birth certificate. But as my colleague, Nancy Polikoff, writes at Beyond (Straight and Gay) Marriage, the Iowa court’s opinion was a mixed bag for gay and lesbian parents.

Mackenzie was born in 2009, the same year that same sex marriage was legalized in Iowa and six months after her parents, Melissa and Heather Gartner, were legally married. At the time of Mackenzie’s birth Melissa and Heather submitted the necessary documents to the Department of Health indicating that Mackenzie was born to a legally married couple, Melissa Gartner and Heather Martin Gartner. Instead of listing both Heather and Melissa on the birth certificate, however, the Department of Health listed only Melissa, the biological mother. According to a Huffington Post report:

At the hospital, the Gartners filled out the form listing both as parents. But when they got Mackenzie's birth certificate back, Heather was listed as a parent and the space for the second was blank.

According to the Iowa Department of Health, their system recognized only the biological mother and father as legitimate names on the birth certificate. In fact, the Department listed three reasons in their argument for not including the nonbiological mother on the birth certificate.

…the Department argues the government has an interest in the accuracy of birth certificates, the efficiency and effectiveness of government administration, and the determination of paternity.

In its ruling earlier that both mothers must be listed on the birth certificate, the Iowa Supreme Court determined that the arguments put forth by the Department did not have merit.

Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice.

The Department has been unable to identify a constitutionally adequate justification for refusing to list on a child’s birth certificate the nonbirthing spouse in a lesbian marriage, when the child was conceived using an anonymous sperm donor and was born to the other spouse during the marriage. Thus, the language in section 144.13(2) limiting the requirement to “the name of the husband” on the birth certificate is unconstitutional as applied to married lesbian couples who have a child born to them during marriage.

Camilla Taylor, an attorney for Lambda Legal, noted the importance of the Iowa decision for same-sex couples.

Hundreds of same-sex couples in Iowa have been denied accurate birth certificates since 2009, Taylor said, and suffer a range of problems as a result of one of the spouses not being considered legal parents. They've had hassles enrolling their children in schools, taking them to the doctor and traveling, she said.

But Nancy cautions that the decision raises grave concerns for similar cases in the future.

Mackenzie Gartner gets a birth certificate naming both her moms. This is good news.

 So why am I not celebrating? In other posts I have criticized this litigation because it helps only children whose moms are married. I stand by that criticism. The court’s opinion makes me more concerned than ever.

The court’s opinion, Polikoff continues, raises the issue of illegitimacy, an outdated criterion that the U.S. Supreme Court rejected as an issue more than 45 years ago.

The court says "we recognize the strong stigma accompanying illegitimacy." Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate?

But, says Polikoff, evoking the issue of illegitimacy is not the only area of concern. Rather the Iowa decision is a throw-back to an era when the concept of “paternity” referred strictly to fatherhood rather than being considered a gender-neutral term when applied to same-sex parents.

The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption. Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways. Here is just one example. Every state has a statute that paternity judgments must be given Full Faith and Credit by other states. Every state. Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers. The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers. That is the wrong result, and it will hurt many, many of our families.

In a nutshell, while the Iowa ruling was a win for the Gartners, it contains both positive and negative ramifications for future cases and in fact misrepresents case law. As is the case so often when it comes to marriage equality and LGBT rights in general, it’s one step forward, one (or more) steps back. To read Polikoff’s excellent commentary on this case, visit her blog at http://www.beyondstraightandgaymarriage.blogspot.com/.

Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

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Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

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Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

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Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

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After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

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RICHARD B. VAUGHN
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Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
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Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

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Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

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