’Socially Sanctioned’ and “Legally Recognized’
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.