Pulaski Circuit Judge Tim Fox ruled today that the state should put the names of three same-sex couples on children’s birth certificates.
The couples sued because the state Health Department refused to list both parents of the children, all conceived by sperm donation.
I wrote about one couple, Leigh and Jana Jacobs in July. The other plaintiffs, all represented by Cheryl Maples, were Marisa and Terrah Pavan and Courtney Kassel and Kelly Scott.
It made no sense to me then that the state hadn’t moved to rectify a situation in which it accepted both names of declared parents on birth certificates of children of unmarried heterosexual couples but wouldn’t accept both parents’ names in this case. There are some important issues, no doubt as to parentage, but as I noted in July, other states have found easy ways to adopt new forms. The Health Department said then it was working on the issue, but said the state Board of Health had to adopt a new rule and that rule had to be reviewed by the legislature. Meanwhile, the judge got the job done today.
Attorney General Leslie Rutledge fought the suit to get both parents listed. It said, among others, that it couldn’t alter a birth certificate without a court order and that parentage wasn’t a matter related to marriage and that the constitutional right to marriage provided by recent court rulings didn’t translate to a right to claim parentage. It said hospitals filled out the forms that it used to issue the birth certificates. They do not list the woman who did not give birth. The state said it would list another woman if presented with a court order determining parentage or otherwise granting parental rights to the other woman or approving an adoption by that woman.
A health department official said in an affidavit:
Identification of biological parents through birth records is critical to ADH’s identification of public health trends, and it can be critical to an individual’s identification of personal health issues and genetic conditions. Even in the case of surrogacy where the biological mother is never intended to be the legal parent of a child, the statutes provide that an initial birth certificate is issued reflecting the biological mother as a parent, and then an amended birth certificate is issued reflecting the intended parent(s) as legal parent(s). The original birth certificate is sealed, but maintained by ADH. In cases of adoption, ADH also maintains sealed copies of original birth certificates reflecting biological parentage. This is important because a child may need to access information about biological parentage for health-related reasons. The State has a legitimate interest in maintaining such information (even if under seal and releasable only pursuant to a court order) in order to protect the future health of the child.
I’m awaiting a response from the office on whether Fox’s ruling will be appealed.
The ruling in this case today doesn’t immediately answer some points raised in the state’s argument against the suit:
Plaintiffs’ case presents important policy questions that many states will face after Obergefell. Some states are already exploring new processes for adults who are not biologically related to children to acquire parental rights over children in a variety of ways in addition to adoption. Arkansas may do the same, but Arkansas is not constitutionally required to do so. A sweeping court order commanding ADH to immediately commence categorically amending birth certificates to reflect parents who are not biologically related to children would re-write a complex statutory and regulatory scheme (see ADH’s Brief at 6-14) and override undisputed legitimate government interests furthered by the existing statutes and regulations (id. at 26-31).
The Court should recognize that although Plaintiffs may make a good policy argument, there is no constitutional imperative requiring the relief Plaintiffs seek by judicial proclamation.
UPDATE: Judge Fox’s order today only pertained to requests from the three sets of parents. He ruled from the bench, not in a written order. He’ll prepare a written order which should deal with the broader issues raised in the state’s answer to the lawsuit. The attorney general will wait on that ruling before deciding a future course, a spokesman said.
UPDATE II: More reporting from the courtroom here by AP.