Rich Vaughn, IFLG: South Carolina Must List Same-Sex Parents on Birth Certificates

Federal Court Says South Carolina Refusal to Recognize Same-Sex Moms Unconstitutional

A U.S. District Court ruled Feb. 16 that South Carolina’s refusal to list both parents on the birth certificates of twins born to a married lesbian couple violates the 14th Amendment of the U.S. Constitution. The state did not appeal the decision but instead entered into a consent agreement and will begin issuing accurate birth certificates to the children of married same-sex parents, as reported by Slate.

According to a statement from Lambda Legal, “In May 2016, Lambda Legal and South Carolina Equality, with the help of pro bono co-counsel, filed a motion for summary judgment, noting that the DHEC [South Carolina Department of Health and Environmental Control] policies that refuse to provide new birth certificates to children born to same-sex spouses are arbitrary, harmful, and violate the Equal Protection and Due Process clauses of the Fourteenth Amendment. [On Feb. 16] the Court ruled in favor of the Carsons and all other similar couples in South Carolina who need accurate birth certificates for their children.”

Casy and Jacqueline Carson are high school sweethearts from Greenville, SC, who have been together since 2011. In 2014 they married in Washington, DC—at a time when same-sex marriage was illegal in their home state. In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that states must provide marriage rights to same-sex couples “on the same terms and conditions as opposite-sex couples.” 

 But when the Carsons became the parents of twins, despite indicating on hospital forms that they are legally married, the birth certificate issued for their children listed only Jacqueline, the birth mother, as parent. The space for a second parent was marked “No Father Listed.”

 The South Carolina DHEC’s position was that it would only issue a birth certificate listing same-sex spouses as parents if the couples obtained an adoption or a court order—a burden not placed on heterosexual married couples. In the case of a married heterosexual couple, South Carolina, on the presumption that a child born during the marriage is the child of both husband and wife, lists both spouses on the child’s birth certificate—even when it is known that the child is not biologically related to the husband. The husband is not required to adopt the child or obtain an order of parentage.

As the Slate report notes, birth certificates are legal documents identifying the family into which a child is born—not provenance of genetic relationships. Casy Carson previously served in the National Guard, but was forced to leave the service due to a serious injury. The couple, unable to bear the cost of adoption proceedings, feared their children would be unable to access Casy’s veteran’s benefits or Social Security, or that Casy would not be allowed to access medical care for the children in an emergency.

With last month’s ruling, married same-sex couples in South Carolina will now be able to obtain accurate birth certificates for their children, without taking the additional step of a second-parent adoption. In the wake of the Obergefell decision, a few other states, most notably Arkansas, continue to interpret the law differently when it comes to married same-sex couples. The victory for equality in South Carolina is one more step toward the day when all families will receive fair and equal treatment according to their constitutional rights.

 

Rich Vaughn
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.