PARENTHOOD: Yogi (left) has two moms on his birth certificate. Finch has but one, while the Arkansas Health Department decides how to cope with vital records in the era of legal same-sex marriage.
Leigh Jacobs gave birth June 26 to her second son, Finch, at Baptist Medical Center. Since then she's struggled unsuccessfully to get her spouse, Jana, listed as a parent on the birth certificate though they've been legally married in Iowa for five years and they also married in Arkansas last May during the one-week open season after Judge Chris Piazza invalidated the ban on same-sex marriage.
The state Health Department
decided it may have too hastily moved to add same-sex spouses to birth certificates during the one-week window of legal marriages in 2014. It is now reviewing its procedures on advice from the attorney general's office. For now, it is advising same-sex couples — including as a precaution the roughly 20 who added spouses to birth certificates in 2014 — that the quickest way to get added to a birth certificate is to go to court.
Jacobs said she listed her spouse, Jana, on the hospital's form for the birth certificate for their second son, but the hospital refused to add it. The state issued a birth certificate today, but with only Leigh Jacobs' name. The Jacobses are in a hurry. They have only two more weeks to add Finch to Jana Jacobs' better state health insurance coverage.
Jana Jacobs changed the birth certificate to add her name to the certificate for their first son, three-year-old Yogi, the week that marriages were legal in 2014. "They couldn't have been nicer about it," said Leigh Jacobs. Jacobs was the biological mother of both sons. The father is a sperm donor.
Gov. Asa Hutchinson and Attorney General Leslie Rutledge
have made it clear that they expect state agencies to comply with the U.S. Supreme Court directive prohibiting discrimination against same-sex marriage.
Strictly speaking, of course, the Jacobses' dilemma isn't about marriage. But it is about the privileges afforded married couples and that does go to the heart of the court case.
When a heterosexual woman declares a man to be the father of a child on a birth certificate, a hospital or the state goes through no process to challenge the declaration. A biological question is more readily presented when a woman lists another woman as a parent, however. In fact, the current Arkansas form provides a place for a mother and a father, not parents.
Kerry Krell, the spokesman for the Health Department said, "The bottom line is we do want to comply with the Supreme Court ruling and the laws of Arkansas. But the best way now is for couples to secure a court order. We hope to identify a different process in the near future that will be more streamlined and not as cumbersome."
She said that change would take at least a rule change from the state Board of Health
. And all board rules now must undergo a review from the state legislature. So time is not on the side of people looking for quick action.
Krell said the department had decided shortly after the week of marriages in 2014 that it might have moved hastily and incorrectly in automatically allowing same-sex spouses to be added to forms that specify a mother and father. She said the agency was developing a form that would be gender neutral.
"We want to make sure whatever process we get in place is a long-term process that takes into account the value and power the birth certificate has."
She said the Health Department wasn't saying the roughly 20 certificates changed last May are invalid. But she said the department was preparing a letter to those couples suggesting that a court procedure might be a wise course. About 10 couples have asked to change certificates since the June 26 order, the day Finch was born.
But what kind of a court order? In Arkansas, when a woman is married, her husband is presumed the father. There are procedures by which a court can declare paternity, not a solution for the Jacobses. But there's no specific procedure for listing a same-sex parent, short of an adoption proceeding.
Parenthood is important. A parent may enroll a child in school or authorize medical treatment, for example. A nonparent may not. Some lawyers theorize you could seek a mandatory injunction from a court to order the state to issue a joint birth certificate for married parents who asserted equal protection claims. A nonbiological same-sex parent also could adopt easily now, a legal matter cleared up for same-sex couples by the U.S. Supreme Court ruling. Under old Arkansas court precedent, single parents could adopt, but theoretically couples had to be married for both parents to adopt and same-sex marriage was not legal. In practice, however, some same-sex unmarried couples have been approved jointly for adoption.
North Carolina recently solved the problem at the Health Department level by issuing new guidelines for birth certificates. It will issue parent/parent certificates. California issues father/parent and mother/parent certificates. But some states have resisted giving parental status to non-biological parents. According to this
article, Arkansas law considers in surrogate parenting the parents to be the biological father and the woman intended to be the mother. The article notes that some conservatives are resisting moves to make it easier for same-sex couples to both have parental rights.
Much more to be clarified before this is sorted out. Perhaps some more lawsuits.
Benji Hardy explores some of the unanswered questions
from the court ruling in an article in this week's Times.
UPDATE: And this from another lawyer who practices a lot of family law:
There are a lot of changes that need to be made in the law to make things click with the new version of marriage.
There has always been a legal presumption that a child born during a marriage is a child of the husband. But does that really make sense with same sex marriages where that is (currently at least) no means for that to truly be the case? Also, a presumption can be rebutted. That would be a pretty easy thing for the biological mother to do at the time of a same sex divorce—whether the other "parent" is on the birth certificate or not.
Getting both parents on the birth certificate does not protect the nonbiological parent. Currently, only an adoption can do that. Right now I see no other means to fix things up right. A stepparent adoption is now possible for a same sex couple and would not be subject to question. But I really don't see how a parent's name goes on the birth certificate if the parent is not an actual or adoptive parent. The law needs to be fixed on this. But it isn't at present.
UPDATE II: Cheryl Maples, the lawyer who filed one of the lawsuits challenging the state's marriage ban, says on Facebook that she'll sue Monday over the state's refusal to add same-sex parents on birth certificates.