On Monday morning, The Supreme Court handed down their decision in Pavan v. Smith, a case coming out of Arkansas stating that states cannot deny same sex married couples from listing both parents on the birth certificate of their child. However, it is important to remember that having your name on your baby’s birth certificate only provides a presumption of parentage. Birth certificates are used primarily as a method of data gathering about babies and the people who give birth to them- the fact that we can point to our birth certificates as proof of our identities is only a convenient side effect. Therefore, being listed on your baby’s birth certificate does not mean you are your baby’s legal parent, it means only that you are the baby’s presumed parent and that presumption of parenthood can be challenged. (For more about the difference between legal and presumed parentage, and about the role of birth certificates in naming parents, see our blog post Legal v. Presumed Parenthood.) Couples who are having babies via egg, sperm, or embryo donors, or with the help of a gestational surrogate, need to know the legal landscape to determine if they need protection beyond their names on a birth certificate and should speak to an attorney with knowledge and expertise in fertility law to develop a plan that is right for their family.
With that being said, here is a closer look at Pavan:
The petitioners in Pavan were two same-sex married couples who had conceived and given birth to children via anonymous sperm donation. The petitioners brought suit against the Arkansas Department of Health after officials therein refused to list both mothers as parents on the children’s birth certificates.
Arkansas’ refusal to list both mothers on the birth certificates of their children was based on The Arkansas Code, §20-18-401, which states that, for the purposes of filling out birth certificates, the mother is the woman who gives birth to the child, and the father is her spouse. While there are limited exceptions to this rule, all the parties to the case agreed that the mother’s spouse is to be listed as the father, pursuant to Arkansas law, even if the couple conceived a child via an anonymous sperm donor. The Arkansas Department of Health refused to extend this same classification to same-sex married couples who conceived via anonymous sperm donation, and for this reason the petitioners brought suit against the Arkansas Department of Health, claiming that their actions run contrary to the Supreme Court’s 2015 decision in Obergefell v. Hodges.
In Obergefell v. Hodges, the Supreme Court held that the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples. As a result of this the Constitution also entitles same-sex married couples to all the benefits that opposite-sex married couples receive as a result of their marital status.
The United States Supreme Court ultimately found that the actions of the Arkansas Department of Health and the Arkansas Supreme Court’s ruling “denied married same-sex couples access to the ‘constellation of benefits that the state has linked to marriage’,” a violation of the SCOTUS’ ruling in Obergefell. When a married woman in Arkansas conceives a child through the use of an anonymous sperm donor, the state must list her husband, not the biological father of the child, on the birth certificate. Because the Arkansas Department of Health is not required to list a married woman’s female spouse on a child’s birth certificate, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate- as a result of which same-sex parents may run into trouble when they try to use that birth certificate for important transactions such as obtaining a social security card, making medical decisions for the child, or enrolling the child in school. The State of Arkansas, the Supreme Court found, was giving opposite-sex married couples a form of legal recognition that was not available to same-sex married couples, and was therefore clearly excluding same-sex couples from civil marriage on the same terms and with all the same benefits as afforded to opposite-sex married couples, which runs contrary to the Court’s ruling in Obergefell v. Hodges. The Supreme Court ruled that the Arkansas Department of Health may not deny married same-sex couples that form of legal recognition, and remanded the case for further proceedings.
So, what does this mean for married same-sex couples seeking to conceive children that will not be biologically related to both of them? Well, as a baseline rule, it means that any state which recognizes a non-biological parent when that parent is part of an opposite-sex married couple must also recognize non-biological parents who are part of a same-sex married couple. While it is not completely settled that this law will apply across the country and not just in Arkansas, the Supreme Court’s rulings apply consistently, and so it is fair to assume that any state which has codes similar to Arkansas’ will be held to this ruling. This means that in any state with laws that are like those in Arkansas, when a same-sex couple seeks to have a child via an anonymous sperm (or, theoretically, egg) donor, that couple is entitled to have both of their names on the child’s birth certificate, regardless of the biological connection one parent may or may not have to the child. Couples who are having babies via egg, sperm, or embryo donors, or with the help of a gestational surrogate, need to know the legal landscape to determine if they need protection beyond their names on a birth certificate and should speak to an attorney with knowledge and expertise in fertility law to develop a plan that is right for their family.