The US Court of Appeals for the Seventh Circuit ruled on Friday that, for women in female same-sex marriages, Indiana must include the names of both women on the birth certificate of their children.
The state argued birth certificate parentage in Indiana is based on biology, not parentage. However, the district court ruled that in practice the husband in a heterosexual relationship is presumed to be the biological father whether or not he in fact is, and this undermines the state’s assertion. Because this presumption does not follow in a same-sex marriage, the court ruled according to Pavan v. Smith (a 2017 Arkansas case, decided by the US Supreme Court) “which [held] that same-sex and opposite-sex couples must have the same rights with respect to the identification of children’s parentage on birth certificates.”
“Because Indiana lists a husband as a biological parent (when a child is born during a marriage) even if he did not provide sperm, the district judge concluded, it must treat a wife as a parent even if she did not provide an egg.”
The Seventh Circuit upheld the district court’s decisions concerning these equal protections; however, other parts of the district court’s ruling were reversed. The district court had ruled all three relevant Indiana statutes (Indiana Code Sections 31-9-2-15, 31-9-2-16, and 31-14-7-1) were invalid, but the appellate court disagreed, holding the invalidation was too broad and that aspects of the statutes “have a proper application.”
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 