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U. S. Supreme Court Refuses to Hear Challenge to Same-Sex Parent Birth Certificates: Box v. Henderson

On Monday, December 14, 2020, the United States Supreme Court declined to hear an Indiana case regarding whether same-sex parents can both be recognized on their child’s birth certificate by operation of law.  The State of Indiana was specifically asking the Supreme Court to address whether the marriage equality decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) extends to the presumption of parentage, seeking a distinction to the Pavan v. Smith, 137 S.Ct. 2075 (2017), holding.

The case involved Ashlee and Ruby Henderson, a married same-sex couple who are residents of Indiana as well as several other similarly situated families. In 2015, they filed a lawsuit against the Indiana State Department of Health challenging Indiana’s birth record law after Indiana would not recognize both women – the biological parent and the parent’s spouse - as parents on their child’s birth certificate. Indiana’s district court ruled in favor of the Plaintiffs and, in January 2020, the 7th Circuit Court of Appeals affirmed Indiana’s district court’s decision by holding that Indiana’s refusal to recognize both married parents is unconstitutional under both the Equal Protection Clause and the Due Process Clause of the 14th Amendment. The State of Indiana filed a Petition seeking review of the decision by the United States Supreme Court.

The lawsuit hinged on Indiana’s marital presumption law that legally recognizes a husband as a biological parent if a child is born during a marriage regardless of whether he provides the sperm. In other words, it is presumed the husband is the parent. The 7th Circuit  held the State must treat a wife as a biological parent even if she did not provide the egg for conception of the child.

Indiana argued their birth records law is based on biology, not marital status, and adoption is the appropriate legal avenue for married same-sex couples to both be listed on a birth certificate. The court rejected this argument after reviewing three of the State’s statutes with Judge Easterbrook writing for the majority. The Supreme Court’s decision not to take the case means the 7th Circuit Court of Appeals decision stands.

Wisconsin courts have addressed the problem of statutory language which uses gendered terms for one of our presumptive parentage statutes. After the Supreme Court, in Obergefell,  legally recognized marriage equality in all fifty States, Wisconsin’s artificial insemination statute, Wis. Stat. § 891.40, was held to apply to all married parents in Torres v. Seemeyer, 207 F. Supp. 3d 905 (2016). Torres requires Wis. Stat. § 891.40 to be read in gender neutral terms. Thus, two women in a marital relationship having a child in Wisconsin using donated sperm are both recognized as that child’s parents on the birth certificate. While Wisconsin’s other statutes which confer marital presumptions, Wis. Stat. § 891.39 and 891.41, still contains the gendered “husband” and “wife” rather than “spouse,” the Torres holding suggests a similar challenge would result in a gender neutral application of those statutes, as well.

If you have any questions about this legal decision or about how it may impact your family, please contact us at DeWitt LLP.

About the Authors

Theresa is a Family Law attorney in the firm's Madison office.  “Family Formation” is the umbrella under which Theresa provides assisted reproduction and adoption services to her clients.  One of just a handful of attorneys in Wisconsin with this combination of practice areas, Theresa’s practice is state-wide and her clients come from Wisconsin, other U.S. States, and many foreign countries.

She drafts and negotiates gestational surrogacy agreements as well as sperm and egg donation agreements and has established parentage in many Wisconsin counties. Theresa works closely with other attorneys, surrogacy matching agencies, and psychologists to ensure that all parties are well informed as they begin their surrogacy journey.

She can be reached by phone at 608-252-9251 or by email.

Lindsey focuses her practice in the area of family law.  She helps individuals in all walks of life, whether retired and involved in a long-term marriage, or a young couple seeking a divorce, to navigate family law issues including separation, divorce, custody and placement, child support and maintenance.   She can be reached by phone at 2620754-2857 or by email.  

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