Certified Birth Certificate Analysis

Once the worksheet is completed, the hospital staff uploads the information to a State database. The health department then receives notification that birth information has been added to the database and notice is sent to the birth mother, which indicates that information has been received by the health department and requests that the mother notify the health department if there is an error with respect to the child's identifying information. The notification letter also informs the mother that a certified copy of the record of birth is available from the local health office and if a person wants to obtain a birth certificate, the individual is required to complete an “Application for a Certified Birth Certificate.

” Upon successful completion of the application, the county health department will generate a birth certificate based on the information available to it through the State's database.

Within five days of the birth, a certificate of birth or paternity affidavit must be filed using the Indiana Birth Registration System. ISDH must make corrections or additions to the birth certificate and such additions or corrections can be made by ISDH upon receipt of adequate documentation, including the results of a DNA test or a paternity affidavit.

Once a birth certificate is made, it may not be changed unless the State Department receives “adequate documentary evidence, including the results of a DNA test … or a paternity affidavit,” or an adoption. If an adoption of the child takes place, the State Department is required to issue a new birth certificate that indicates the actual place and date of birth. The original certificate is not destroyed, but retained and filed with the evidence of the adoption.

With the Court’s holding in Henderson concluding that the state must recognize same-sex spouses on the birth certificate and the change to the certificate of live birth worksheet, a discrepancy was created that now forces same-sex couples to marry to be able to benefit and be recognized as the child’s legal parent without having to go through the adoption process.

Right to Procreate

Should every person have the right to have a baby? Should the legislature or courts limit who has the right to be recognized as a parent? These are questions that have to be asked to recognize the discrepancy created by the Indiana courts.

The right to procreate was first addressed by the Supreme Court in 1927. In the specific case, Carrie Buck and her mother were institutionalized and determined to be “feeble-minded.” Carrie had given birth to an illegitimate, “feeble-minded” child and the Supreme Court was faced with the question of “whether a statute authorizing the sterilization of feeble-minded individuals was constitutional.” The Court found it appropriate to sterilize Carrie Buck claiming “three generations of imbeciles are enough.”

Less than twenty years later, the Supreme Court reversed its ruling from Buck v. Bell in Skinner v. Oklahoma. The Supreme Court reviewed the Oklahoma’s Habitual Criminal Sterilization Act, which allowed for a judge or a jury that found an individual to be a “habitual criminal” to make the decision to render the individual sterile. The Court held procreation as a man’s basic civil right and fundamental to the survival of the race.

After the Skinner ruling, the Court used the right to privacy as an avenue for finding laws that interfered with an individual’s right to procreate unconstitutional. The Supreme Court addressed the right to privacy when it found a statute that made it unlawful to use or distribute contraceptives to married couples unconstitutional. The Court used the word “repulsive” to describe the police searching the private, sacred areas of the marital home. Less than ten years later, the Court addressed a similar issue, but this time regarding unmarried individuals taking contraceptives. The Court evaluated whether there was a difference between married and unmarried persons; the Court said no. The Court held “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

When taking these cases together, the Court’s holdings support the existence of a fundamental right of the individual, married or unmarried, to make decisions to procreate.

Marriage v. Non-marriage

Marriage was determined to be a fundamental right in Baskin and Obergefell. With many fundamental rights, the right should be considered reversible. Individuals can defer their fundamental rights such as the rights to bear arms, speech, and religion. Therefore, deciding not to marry should also be seen as fundamental.

Society has always had strong views on marriage. “Most people think it’s important for couples who intend to stay together to be married, but the number of single Americans who want to get married has dropped significantly even in the last four years.” In 1960, the median age for a man’s marriage was twenty-three and women was twenty, which is much different than today which the average is twenty-seven for women and twenty-nine for men. However, the strong view in favor of marriage has changed. There are many reasons millennials are deciding not to marry, but the largest, most relevant reason is millennials believe marriage is outdated.

In Indiana, the change has been a few years in the making. In 1990, 53,145 marriages occurred in Indiana. The number of marriages in Indiana has decreased to 47,587 in 2000 and again to 46,814 in 2014.

In 1968, the Supreme Court started to consider the constitutionality of the legal differences between marital and nonmarital children. The Court invalidated a statute that prevented children from recovering under a Louisiana wrongful death statute, strictly because their parents were not married, stating that it would strike down an “invidious classification even though it had history and tradition on its side.” The Supreme Court has not heard a case that addresses directly the rights of children with gay or lesbian parents.

A few years later, the Court suggested that it was proper to classify birth status on social mores describing marital children as “’socially sanctioned’ and ‘legally recognized’ and nonmarital children as ‘illicit and beyond the recognition of the law.’” The Court justified its language and ruling by expressing Levy could not fairly be read to say a State cannot treat an illegitimate child differently than one who is legitimate. In 1972, a year after Labine, the Court held a Louisiana statute that prevented unacknowledged nonmarital children from recovering worker's compensation on an equal basis as marital children violated the Equal Protection Clause. The Court explained,

The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bounds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual - as well as unjust - way of deterring the parent.

These Court decisions led to the promulgation of the 1973 Conference’s UPA which eliminated the legal distinction between marital and nonmarital children in parentage determinations.

However, by 2000, the Court addressed many cases that infer extension of parent-child relationship to children conceived through artificial reproductive technology and born to same-sex couples. The Court invalidated statutes that punished innocent children for their parents conduct and invalidated statutes that target socially and politically unpopular groups.

Statistics in Indiana

Under the United States Census Bureau’s American Community Survey (ACS), the 2010 census shows that there were 11,074 same-sex couples living in Indiana. “Same-sex couples are identified . . . when an adult in the household is identified as either the ‘husband/wife’ or ‘unmarried partner’ of the person who filled out the survey, referred to as the householder, and both partners or spouses are of the same sex.” The majority at fifty-six percent, are women, same-sex couples. Seventeen percent of Indiana’s same-sex couples are raising children under eighteen-years-old, which is about one in five same-sex couples. It is reasonable to believe that these numbers are still skewed as many may not fill out the survey honestly or at all.

It has been estimated that 3,000 American children in Indiana are being raised by same-sex partners. Approximately 1,996 children being raised by same-sex partners are biological, 474 children are grandchildren, 386 are adopted, 117 are step children, and fifty-three are foster children. Among the couples with children, same-sex couples are five times more likely to raise adopted children than their opposite-sex counterparts.

These statistics prove that Indiana needs to address the issue of same-sex parentage as the number of same-sex partners raising children has increased resulting in the children with one legal parent or the parents having to go through the trouble to adopt the child.

To conclude, let’s take a look back and summarize and discuss a plan to remove the discrepancy. After the legalization of same-sex marriage in Obergefell and Baskin, Indiana same-sex couples continued to face many issues regarding their rights. With the advancement of modern medicine and science, e.g. surrogacy and third-party sperm donation, same-sex couples have been able to agree with their significant other to have children; however, both have not been recognized as legal parents once that child is born. Same-sex women couples in Indiana challenged the definition of what a parent is and who should be listed on a child's birth certificate resulting in Indiana’s Southern District Court invalidating laws regarding the parentage of a child ruling them unconstitutional for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The case in the Southern District allowed the second mother to be placed on the birth certificate, but only if the same-sex couple is married. It seems that Indiana claims that same-sex couples and opposite-sex couples are treated equally when it comes to having children and being placed on the birth certificate, but there is a clear discrepancy now that Indiana is requiring same-sex couples to be married to be recognized as legal parents which is not the same with opposite sex couples.

Indiana recognizes and respects same-sex couples’ right to marry. Additionally, Indiana and the United States have recognized the individual’s right to bear children. However, Indiana has struggled with how to define legal parent. Before, Indiana relied on biological mother, the woman who gave birth to the child and the biological father, the man who inseminated the woman with his sperm through sexual intercourse. Recently, Indiana expanded parentage to married same-sex couples. With such expansion, however, same-sex couples are being indirectly forced to get married for the nonbiological parent to be recognized as a legal parent to the child conceived through assisted reproductive technology. Indiana fails to recognize unmarried, same-sex women couples as legal parents without the nonbiological mother going through the legal adoption proceedings.

It is scientifically clear that a child has a biological mother and a biological father, which leads Indiana courts to struggle with ignoring the biology of the child. Therefore, Indiana requires nonbiological parents to adopt the child to be recognized as legal parents. However, with the advancement of assisted reproductive measures same-sex women couples can decide with their partner to have a child through artificial means that does not involve sex. Indiana, same-sex women couples have been using assisted reproductive technology such as surrogacy and artificial insemination for some time.

To mend the gap between same-sex partners and opposite-sex partners, Indiana legislature should consider broadening the definition of legal parent in Indiana and create laws that allow for same-sex unmarried mothers to be listed on the child’s birth certificate. The state cannot rely on the marital theory, because that would cause unequal treatment for same-sex couples and would mean they would be forced to marry to be considered the child’s parent. Creating a parent affidavit, similar to a paternity affidavit, will allow for same-sex couples who choose to conceive a child together to complete and be considered a legal parent. The affidavit may cause issues when and if same-sex parents split up. However, the parent affidavit should be binding on both same-sex parents and create the same responsibilities for same-sex parents as it has for opposite-sex parents.

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