In February 2015, eight female same-sex couples filed suit in the Southern District of Indiana seeking injunctive relief after they were denied the signature of both spouses on Indiana’s Live Birth Worksheet. The children born to the couples were given birth certificates listing only the birth spouse as the legal parent. Without a court order, the couples were told that the county did not allow the non-birthing spouse to sign the birth certificate.
Under Indiana law, a birthing female is legally the mother, and the male is presumed to be the biological father if the couple is married, unless that presumption is rebutted. Even in instances of artificial reproductive technology, where the male is not genetically connected to the child, the male is still presumed to be the father under Indiana law.
For the plaintiffs in this case, the Indiana Department of Health would only recognize the non-birthing spouse on the birth certificate if she legally adopted the child. Additionally, because there is no “father” listed on the Live Birth Worksheet, the child legally is born out of “wedlock” and can only take the last name of the birth mother, regardless of the marriage status of the same-sex couple.
The consequences of only one legal parent were significant. If the birthing spouse died, the other spouse would retain no legal connection to the child. Without a birth certificate proving parentage, the child could not be claimed under insurance or be considered an “heir” of the non-birthing spouse for estate purposes. For one plaintiff couple, the state took the liberty of legally changing the child’s name to only include the last name of the birth mother instead of the hyphenated last name that included both as listed by both parents on the Live Birth Worksheet.
Plaintiffs Noell and Crystal Allen lost their twins to premature birth and only one parent was listed on the birth certificate. Because they subsequently died, the women no longer had the ability to “adopt” the babies and receive parental recognition. The case was further complicated for plaintiffs Jackie and Lisa Phillips-Stackman. Their child was delivered early to address life-threatening complications and went into neonatal care. During the birth, Jackie also suffered life-threatening complications but lived. Jackie was the birth mother, but the egg used for the pregnancy was actually from Lisa. Even though Lisa was genetically the mother of the child, she was not allowed to be listed as a parent on the child’s birth certificate unless she adopted her own child. Had Jackie died at birth, Lisa would have had no legal relationship with the child.
In June 2016, the District Court held the Indiana Statutes were in violation of the U.S. Constitution’s Equal Protection and Due Process Clauses and that a permanent injunction was appropriate based on the irreparable harm it caused. Indiana Attorney General Greg Zoeller filed an appeal to the Seventh Circuit Court and oral arguments were heard in May of 2017. From there, the case sat for over two years. The case remained one of the longest to be heard without an opinion in the Seventh Circuit docket. Although it remains unclear why the case sat for so long, speculation circled around the vacancies in the appellate court and the assumption that the judges were waiting on guidance from other circuit cases. In June of 2017, the United States Supreme Court issued a per curiam decision in Pavan v. Smith holding that a similar Arkansas statute was unconstitutional. In light of the decision, the plaintiffs filed a motion for additional briefing in 2018, to expand their arguments to include the Pavan ruling. The Seventh Circuit, however, did not respond to their request.
Finally, on January 17, 2020, the Seventh Circuit affirmed the lower court’s ruling. The court also urged the Indiana General Assembly to update the Indiana Statutes to reflect the ruling. The court also noted that the ruling does nothing to affect how the children of same-sex male couples are listed on a birth certificate and encouraged the legislature to clarify. Indiana House Representative for District 57 Sean Eberhart introduced a bill to clear up the code in the 2020 Indiana Legislative Session, however, the bill never made it out of committee. The law is still current but unconstitutional, while in the interim both “mothers” are listed on the birth certificate.
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