“Parenthood Statutes” Declared Unconstitutional

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By Julianne Tobin Wojay

July 7 — Indiana's “Parenthood Statutes” violate the equal protection and due process rights of married lesbian couples by not recognizing children born to one spouse as being born in wedlock and by not granting a presumption of parenthood to the other spouse, the U.S. District Court for the Southern District of Indiana held June 30 ( Henderson v. Adams, 2016 BL 210671, S.D. Ind., No. 1:15-cv-00220-TWP, 6/30/16 ).

In arguing that the state's refusal to grant the status of parenthood to the female spouses of artificially-inseminated birth mothers while granting that status to the male spouses of such mothers was unconstitutional, the married plaintiffs relied on recent developments in constitutional jurisprudence.

They pointed out that the state is required to recognize same-sex marriages, and that the benefits conferred upon opposite-sex married couples must be equally conferred upon same-sex married couples. See Baskin v. Bogan, 12 F.Supp.3d 1144, 40 FLR 1408 (S.D. Ind. 2014).

The women also cited the statement in Obergefell v. Hodges, 135 S.Ct. 2584, 2601, 41 FLR 1411 (U.S. 2015), that

aspects of marital status include: adoption rights; … birth and death certificates; … and child custody, support and visitation.

Concluding that the so-called Parenthood Statutes violated the 14th Amendment's equal protection and due process clauses, Judge Tanya Walton Pratt ordered the state to apply those laws “in a non-discriminatory way.”

She thus enjoined it from enforcing the statutes “in a manner that prevents the presumption of parenthood to be granted to female, same-sex spouses of birth mothers” and directed it to “recognize children born to a birth mother who is legally married to a same-sex spouse as a child born in wedlock.”

Is UPA the Solution?

One of the arguments raised by the state, and rejected by Pratt, was that any new path to parenthood should come from the legislature and not the courts.

The author of a 2015 law review article addressing same-sex parenthood in Indiana made the same suggestion, urging that lawmakers adopt sections 201 and 204 of the Uniform Parentage Act.

She said that this would expand the presumptions of paternity to mothers and establish presumptions of maternity. See Elizabeth Traylor, Note, Protecting the Rights of Children of Same-Sex Parents in Indiana by Adopting a Version of the Uniform Parentage Act , 48 Ind. L. Rev. 695 (2015).

Adoption, the Only Option

The plaintiffs in this case are eight same-sex married couples and their children, who were conceived via artificial insemination using donor sperm and born during their parents' marriages. In each instance the birth mother was listed on the child's Indiana birth certificate but her spouse was not.

(In one case, the spouse had served as the egg donor and thus is the child's biological mother. In another, the couple's prematurely-born twins died the day of birth; while the spouse is not listed as a parent on the birth certificates, she is listed as a parent on the twins' death certificates.)

Each non-birth mother sought to be listed as a parent on their child's birth certificate, so that the child would be recognized as being born in wedlock. However, they were informed by the state that the only way to become a legally-recognized parent was to adopt the child.

The plaintiffs' subsequent lawsuit for injunctive and declaratory relief challenged the constitutionality of Indiana's “Parenthood Statutes”—Ind. Code § 31-9-2-15 and -16 (defining “child born in wedlock” and “child born out of wedlock”) and § 31-14-7-1 (establishing presumption of paternity in birth mother's husband).

They argued that the statutes violated the 14th Amendment's guarantees of equal protection and due process by creating a presumption of parenthood for men married to birth mothers but not for women married to birth mothers, and by stigmatizing children born to same-sex married couples as children born out of wedlock.

In defending the laws, the Indiana State Health Department (which is in charge of the state's birth registry system) contended that the statutes impinge no fundamental rights and in any event are narrowly tailored to vindicate compelling state interests.

Both parties filed cross-motions for summary judgment.

Equal Protection

In her equal protection analysis, Pratt reviewed the Parenthood Statutes under heightened intermediate scrutiny because of the gender and sexual orientation classifications at issue.

Thus looking to whether the laws serve “important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives” ( Baskin v. Bogan, 766 F.3d 648, 656, 40 FLR 1525 (7th Cir. 2014)) she was not swayed by the state's claim that it “has an important governmental interest in preserving the rights of biological fathers and recording and maintaining accurate records regarding the biological parenthood of children born in Indiana.”

The “denial of presumed parenthood to same-sex spouses requires them to go through the lengthy and costly adoption process to secure parental rights, which is not required of similarly situated men married to birth mothers who conceive though artificial insemination” and are allowed to declare, on the Indiana Birth Worksheet, that they are married to the child's father, Pratt said, noting that “the husband is listed on the child's birth certificate despite the lack of biological or adoptive connection.”

(The Worksheet asks birth mothers “are you married to the father of your child,” but does not define “father.” Pratt said that “[t]his term can mean different things to different women.”)

One Legal Parent

“Additionally,” she said, “not permitting both same-sex spouses to be listed as parents on birth certificates leaves children in a vulnerable position of having only one legal parent, which affects many daily activities and choices available to children and parents.”

“Denial of a presumption of parenthood to the Plaintiffs does not serve the best interests of the Plaintiff Children or protect, promote, and preserve their families and numerous other similar families in Indiana,” Pratt said.

“Importantly,” she said, “the legitimacy statutes do not refer to biology when they define the terms `child born in wedlock' and `child born out of wedlock'.”

The state also argued that “Obergefell actually decoupled marriage from parenthood because the right to marry cannot be conditioned on the capacity or commitment to procreate [and] at most, the Obergefell decision stands for the proposition that any benefit of marriage must now be extended to same-sex married couples on an equal basis with opposite-sex married couples.”

“But thus is exactly what the Plaintiffs seek—the extension of a benefit of marriage on an equal basis,” Pratt said.

“When the State Defendant created and utilized the Indiana Birth Worksheet, which asks `are you married to the father of your child,' the State created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child's birth certificate even when the husband is not the biological father. Because of Baskin and Obergefell, this benefit—which is directly tied to marriage—must now be afforded to women married to women,” she said.

(Also noting that some states have attempted “to legislatively fill the statutory void similar to Indiana's statutory shortcoming,” Pratt said that despite “additional [ ] protections and guidance” Wisconsin's statutory scheme is facing a challenge similar to the one here. Torres v. Rhoades, No. 15-cv-00288-bbc (W.D. Wis.); see also 2015 BL 419460, 42 FLR 1103 (W.D. Wis. 2015).)

Due Process

Pratt went on to also say that “[b]y refusing to grant the presumption of parenthood to same-sex married women, the State Defendant violates the Plaintiffs' fundamental right to parenthood under the Due Process Clause.”

She explained that the “Parenthood Statutes and the State Defendant's implementation of the statutes through the Indiana Birth Worksheet significantly interferes with the Plaintiffs' exercise of the right to be a parent by denying them any opportunity for a presumption of parenthood which is offered to heterosexual couples.”


Going on to find that injunctive relief is an appropriate remedy, Pratt was not swayed by the state's argument that if the plaintiffs “wish to create a third path to legal parenthood [by adding marriage to biological and adoptive parenthood] they should seek relief from the General Assembly—not this Court.”

“This Court is hard-pressed to imagine an injury to the State Defendant if it is ordered to apply the Parenthood Statutes in a non-discriminatory way,” she said.

The plaintiffs were represented by Richard A. Mann, P.C., Skiles DeTrude, Fillenwarth Dennerline Groth & Towe LLP, and Austin & Jones PC. The defendant was represented by the Office of the Attorney General. All are from Indianapolis.

To contact the reporter on this story: Julianne Tobin Wojay in Washington at jwojay@bna.com

To contact the editor responsible for this story: David Jackson at djackson@bna.com

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