Indiana must recognize both spouses in female same-sex marriages as parents

A federal court issued an order Tuesday requiring Indiana to include non-birth mothers’ names on their children’s birth certificates, marking a milestone in a long legal battle.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana ruled on cross-motions for summary judgment in Henderson, et al. v. Adam, et al.s, 1:15-cv-00220. Finding Indiana Code §§ 31-9-2-15, 31-9-2-16 and 31-14-7-1(1) violate the Equal Protection and the Due Process clauses of the 14^th Amendment, the court enjoined the state from enforcing the statutes in a manner that prevents the presumption of parenthood to female, same-sex spouses of birth mothers.

Also, the court ordered non-birth mothers in same-sex marriages to be listed as parents on their children’s birth certificates and required the state to recognize children born to married female same-sex couples to be recognized as born in wedlock.

Walton Pratt noted the order encompasses only married lesbian couples. “… (T)he proper treatment of children born during male-male marriages is expressly left open for resolution by the Indiana General Assembly or in some future lawsuit,” she wrote.

The Henderson case was brought in February 2015 by married female same-sex couples after Indiana refused to recognize the non-birth mothers as parents. Walton Pratt ruled the state statutes were unconstitutional in June 2016 and affirmed the ruling in December 2016, but Indiana appealed to the 7^th Circuit Court of Appeals. 

Shortly after oral arguments were held in May 2017, the U.S. Supreme Court issued a per curiam decision in Pavan v. Smith, 582 U.S. ___ (2017), which struck down an attempt by Arkansas to not recognize non-birth mothers.

Attorneys representing the mothers cited Pavan and a similar ruling in McLaughlin v. Jones, ___P.3d___2017, from the Arizona Supreme Court, but the 7^th Circuit did not respond.

The case remained on the appellate court’s docket until January 2020, when the panel of Judges Frank Easterbrook, Joel Flaum and Diane Sykes issued a 10-page opinion, finding in favor of the women plaintiffs.