Indiana’s Resistance on Birth Certifi cates Nixed
State must list birth mother’s same-sex spouse as a parent, Seventh Circuit fi nds
BY ARTHUR S. LEONARD
A unanimous three-judge panel of the
Seventh Circuit Court of Appeals in
Chicago ruled on January 17 that
the state of Indiana must recognize
the same-sex spouse of a woman who gives
birth as the child’s mother and that she should
be listed on the birth certificate.
The decision upholds a conclusion reached in
2016 by District Judge Tanya Walton Pratt, who
held that the laws the state relied on in refusing
to list the same-sex spouse on their child’s
birth certificate were unconstitutional based
on the US Supreme Court’s marriage equality
ruling in Obergefell v. Hodges. In Obergefell, the
high court found that marriages of same-sex
couples must be treated the same for all purposes
as those of different-sex couples.
The state of Indiana was unwilling to accept
Pratt’s decision and pressed an appeal — despite
the fact that just six after her ruling, the
Supreme Court came to the same conclusion in
Pavan v. Smith, ruling that Arkansas could not
refuse to list such parents on birth certificates.
The state’s position was an insistent one —
that it had a right to make a child’s initial birth
certificate a record solely of the biological parents,
as long as it allowed same-sex spouses
to seek an amended birth certificate at a later
date. Judge Pratt had rejected this argument,
and the Supreme Court’s Pavan ruling vindicated
➤ GMAD, from p.12
ited GMAD’s Atlantic Avenue offices after being
told that the agency was in financial trouble.
At that time, Taylor-Akutagawa told Gay City
News that GMAD would go on a summer hiatus
and prepare to apply for an Article 31 license
from New York State.
An Article 31 license allows a provider to deliver
“integrated outpatient services” for clients
needing mental health or substance abuse assistance.
Founded in 1986, GMAD has been struggling
with financial problems for nearly a decade.
It reported $1.2 million in gifts, grants,
and contributions in 2011. That fell to just under
$392,000 in 2017. It ended its 2016 fiscal
year with a deficit of $220,000 and its 2017 fiscal
year with a deficit of $363,000.
Ultimately, GMAD fell victim to a healthcare
industry that has been consolidating for years,
including those providers that serve HIV-positive
people and deliver HIV prevention services,
and to city and state contracts that favor large
institutions that can deliver services to large
her reading of Obergefell.
But the state of Indiana argued that “Obergefell
and Pavan do not control,” Judge Frank H.
Easterbrook explained in his opinion for the
panel. “In its view, birth certificates in Indiana
follow biology rather than marital status. The
state insists that a wife in an opposite-sex marriage
who conceives a child through artificial
insemination must identify, as the father, not
her husband but the sperm donor.”
The plaintiffs argued that Indiana’s statute
is in fact status-based, not based on biology —
noting that as a practical matter, women married
to men who conceive through donor insemination
routinely designate their husbands on
a worksheet that state officials said is intended
to elicit the sperm donor’s identity. Mothers are
asked simply to name the child’s “father,” and
it should surprise nobody that they usually list
their husband.
“Some mothers filling in the form may think
that ‘husband’ and ‘father’ mean the same
thing,” he wrote. “Others may name their husbands
for social reasons, no matter what the
form tells them to do. Indiana contends that
it is not responsible for private decisions, and
that may well be so — but it is responsible for
the text of Indiana Code Section 31-14-7-1(1),
which establishes a presumption that applies to
opposite-sex marriages but not same-sex marriages.”
That presumption is that the husband
of a married woman who gives birth is the father
numbers of people.
While GMAD’s financial problems pre-date
the launch of the Plan to End AIDS, its apparent
demise comes as the proponents of that
plan have been forced to alter their target for
reducing new HIV infections per year. The plan,
which launched in 2015, originally sought to
get to 750 new HIV infections a year statewide
by the end of 2020, with 600 0f those infections
occurring in New York City.
The plan has been successful in getting HIVpositive
people into treatment and getting HIVnegative
white gay men to take pre-exposure
prophylaxis (PrEP), but it has not been successful
on these metrics with African-American and
Latino gay and bisexual men. The continued
higher numbers of new HIV infections among
Black and Latino gay and bisexual men meant
the 750 target will be missed. The state health
department has not announced new targets for
the city and state.
“If this was white, gay men, this never would
have happened,” Gary English said about
GMAD closing.
English is the founder and executive director
FAMILIES
of her child.
“Opposite-sex couples can have their names
on children’s birth certificates without going
through adoption; same-sex couples cannot,”
Easterbrook wrote. “Nothing about the birth
worksheet changes that rule.”
Why should a married same-sex couple, entitled
under the Constitution to have their marriage
treated the same as a different-sex marriage,
have to go through an adoption to get a
proper birth certificate?
Easterbrook’s opinion also asked what if the
child of a same-sex female couple has two “biological”
mothers?
“Indiana’s current statutory system fails to
acknowledge the possibility that the wife of a
birth mother also is a biological mother,” he observed.
“One set of plaintiffs in this suit shows
this. Lisa Philips-Stackman is the birth mother
of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s
wife, was the egg donor. Thus Jackie is both
L.J.P.-S.’s biological mother and the spouse of
L.J.P.-S.’s birth mother. There is also a third
biological parent (the sperm donor), but Indiana
limits to two the number of parents it will
record.”
Easterbrook concluded, “We agree with the
district court that, after Obergefell and Pavan,
a state cannot presume that a husband is the
father of a child born in wedlock, while denying
an equivalent presumption to parents in samesex
marriages.”
of Get It, Get It, which launched two-and-ahalf
years ago with a $166,000 a year city contract
to develop and deploy a curriculum that
would get African-American gay and bisexual
men onto PrEP and post-exposure prophylaxis
(PEP). Both regimens use anti-HIV drugs in
HIV-negative people to keep them uninfected.
PEP and PrEP are highly effective when taken
correctly. The Get It, Get It contract ran out at
the end of 2019.
Black gay men in New York City have experienced
higher rates of new HIV infections since
the mid-1990s. The Giuliani administration
and later the Bloomberg administration paid no
attention to that demographic. Bloomberg significantly
reduced HIV prevention funding during
his 12 years in City Hall. The approval of
Truvada for PrEP by the federal Food and Drug
Administration in 2012 could have changed
that.
“It’s a shame that we only have one Black gay
agency that is run by Black gay men and we
just lost our funding,” English said. “All I can
say is it’s racism and not taking our community
seriously.”
GayCityNews.com | January 30 - February 12, 2020 13
/GayCityNews.com
