Birth certificate ruling brings relief

In a cruel twist, Crystal and Noell Allen discovered even though Indiana prohibited them from being listed as parents on their twins’ birth certificates, the state did allow both mothers to be identified as parents on the babies’ death certificates.

Crystal Allen still does not understand why the state had no problem having the couple be associated with a loss but not a birth, and she continues to tear up whenever she thinks of her twins. She described that time as a “horrific experience,” but the couple made the decision to move forward with a lawsuit against the state over the birth certificate issue.

They and several other married same-sex female couples turned to the federal courts to challenge Indiana’s refusal to see all the women as parents. The women claimed the state’s enforcement of statutes violated the Constitution because same-sex couples were treated differently from opposite-sex couples. Even in marriages where the mother was artificially inseminated, their husbands were identified on the baby’s birth certificate as the father, but nonbirth mothers whose wives got pregnant through insemination were not recognized as parents.

“It’s not just about a name on a birth certificate,” Crystal said. “It’s a deep wound that we felt like we had to work to rectify in our hearts and minds to help our babies.”

On Jan. 17, the Allen family and all Hoosier families with two moms received the news they had waited nearly three years to hear — the 7th Circuit Court of Appeals affirmed the women in same-sex marriages in Indiana must be listed as the parents on their children’s birth certificates.

The lawsuit that went to the appellate court, Henderson, et al. v. Box, 17-1141, was first filed in February 2015. Filed just five months after the 7th Circuit affirmed Indiana’s ban on same-sex marriage was unconstitutional in Baskin v. Bogan, 766 F.3d 648 (2014), the married female couples had another battle to fight.

After the U.S. District Court for the Southern District of Indiana ruled the state had to include both the birth mother and non-birth mother on the birth certificates, Indiana appealed. Oral arguments took place in May 2017, and then the wait began for the ruling. However, the wait stretched to a year, then two and fell just days shy of the three-year anniversary of when the appeal was filed before the appellate panel finally issued its opinion.

“I think it’s somewhat of a relief the decision was actually upheld and should have been upheld 32 months ago,” said Jackie Phillips-Stackman who along with her wife, Lisa, was also a plaintiff in the lawsuit.

Still apprehensive

Since the ruling from the district court in June 2016, the state has been listing the names of both mothers on the infants’ birth certificates, according to the Indiana State Department of Health. The birth certificate form that new parents fill out is the same for married same-sex female couples as for heterosexual parents.

As to whether any of the birth certificate forms or procedures will have to change because of the ruling from the 7th Circuit, the health department said it could not answer until the case is fully resolved.

The 7th Circuit did vacate and remand part of the dispute back to the district court. Although the appellate court did uphold the inclusion of both mothers’ names on the birth certificates, it found some of the district court’s ruling could lead to married same-sex female couples being treated differently that married same-sex male couples.

One of the plaintiffs’ attorneys, Karen Celestino-Horseman, said she had contacted the Indiana Attorney General’s Office to see if the parties could reach an agreement resolving the vacated portion of the opinion. The plaintiffs want to try to work on some language together with the Attorney General that they all can then present to the district court.

However, the OAG has not determined if it will let the decision stand, file a petition with the 7th Circuit for a rehearing or appeal to the U.S. Supreme Court.

“We are disappointed with the outcome and will consider any next steps as we study the ruling and are consulting with our client,” the Attorney General’s Office told The Indiana Lawyer.

Richard Mann of Mann Law, P.C., and William Groth, of counsel at Macey Swanson, LLP, who were both part of the plaintiffs’ team, were happy the 7th Circuit gave their clients “a just result.”

“We consider it a victory,” Mann said of the appellate court’s ruling. “The Attorney General’s Office could file an appeal. I would hope they are done spending taxpayer money.”

That the ruling could be appealed and throw the families into limbo again makes Phillips-Stackman apprehensive. The sense of uneasiness was always there while she and her family waited for the 7th Circuit to issue its opinion. Whenever Phillips-Stackmans and their toddler daughter Lola would get into what Jackie called a “family groove” and start to relax, something would remind them their situation was not settled. The court could have still severed Phillip-Stackman’s parental right to her child.

“If our fight allows other same-sex married couples to get their names on their children’s birth certificates,” Phillips-Stackman said, “it’s worth it.”

A legacy

At one point in its defense of the state’s born-in-wedlock and born-out-of-wedlock statutes, Indiana sought the names of the sperm donors.

The state presented Fairfax Cryobank, a sperm bank in Virginia, with a subpoena in 2015, seeking the identification and other information on the donors who provided the specimens to two of the plaintiff couples in the birth certificate case. In addition, the state demanded the facility to turn over “any documents that related to the confidentiality of donor identities” and disclose the sexual preference of its customers.

Cryo argued, in part, the information Indiana wanted was not relevant to the issues in the birth certificate litigation, and the subpoena was meant to “harass, annoy, oppress and unduly burden” the sperm bank. After receiving the subpoena, Cryo filed a motion to quash in the U.S. District Court for the District of Virginia, Eastern Division.

Celestino-Horseman said the plaintiffs’ legal team was able to resolve the matter by reaching an agreement with the state to provide limited information.

The ruling from the 7th Circuit inspired reflection and stirred mixed emotions for Crystal Allen not only about her own family’s loss but also about the hardship and discrimination that continues. She and her wife are moving forward, enjoying their daughter Elon and trying to expand their family.

Asked if she would still have been a part of the lawsuit knowing how long the journey would be, Allen answered strongly, “absolutely, without question.” She added, “We added to the legacy of our time. We’re part of a change that will impact generations to come.”•