The Iowa Supreme Court has ruled that when a woman in a same-sex marriage gives birth to a child, her spouse should be listed as the other parent. The case involved Heather Martin Gartner, who gave birth to her daughter Mackenzie in 2009, but was told her wife Melissa would have to go through the costly process of adoption to be recognized as Mackenzie’s other parent.
At issue is that the language in Iowa’s laws about presumption of parentage are gendered (husband, father, paternity). However, the Court pointed out that the law does assume that the husband of a mother is the father — in fact, if a woman in an opposite-sex marriage were to use an anonymous sperm donor, the state would not even know when it determines her husband to be the father. Thus, the same standard should apply to lesbian couples under the Iowa Constitution’s guarantee of equal protection — the same guarantee the Court used to rule for marriage equality in 2009:
It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children. By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth. Therefore, the only explanation for not listing the nonbirthing lesbian spouse on the birth certificate is stereotype or prejudice. The exclusion of the nonbirthing spouse on the birth certificate of a child born to a married lesbian couple is not substantially related to the objective of establishing parentage.
Thus, section 144.13(2) fails to comport with the guarantees of equal protection under article 1, sections 1 and 6 of the Iowa Constitution. 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.
This decision is one of many the Court may still need to make to address the gendered language that remains in Iowa law. Unlike in states that have passed marriage equality legislatively, the Iowa Supreme Court’s decision in 2009 did not automatically rewrite all Iowa laws related to spouses with gender-neutral language. Thus, other statutes must be interpreted separately in accordance with past decisions unless Iowa lawmakers correct them through new legislation. Notably, lawmakers in Washington recently completed the removal of all references to gender throughout the state’s laws.
Perhaps ironically, this decision may apply uniquely to lesbian couples and not to gay male couples. This, of course, is due to the fact that neither man in such a couple (providing he is not transgender) will be giving birth to a child. If issues arise in regards to how a birth certificate is issued when two men have a child through a surrogate mother, a separate but similar case may have to proceed before both can be listed as the child’s parents.