UPDATE: The Iowa Supreme Court Friday affirmed 6-0 a district court
ruling that both spouses in a lesbian marriage should be listed on a child's
"All I know is that we won," Heather Gartner, 41, of Des Moines, said Friday morning after dropping off her children Zachary, 6, and Mackenzie, 3, at school and daycare.
The court ordered the Iowa Department of Public Health to reissue a birth certificate to the Gartners for Mackenzie, born in September 2009. The department previously refused to list Melissa Gartner, the nonbirthing parent, on the birth certificate.
"It is important our laws recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children," the court wrote in a 29-page decision issued Friday.
"By naming the nonbirthing spouse on the birth certificate of a married lesbian couple's child, the child is ensured supported from that parent and that parents establishes fundamental rights at the moment of birth," the ruling states.
Among those rights is a parent's right to allow medical procedures for a child, Heather Gartner said. When Mackenzie was hospitalized as a baby because of a respiratory issue, Heather stayed with her the entire time in case the hospital needed parental permission for treatment.
"That gets scary," she said. "You don't want to take a chance."
There are other occasions, such as enrolling a child in school or filing taxes, when legal parentage is required, Heather said.
Melissa and Heather got married June 13, 2009, after being together since 2003. Heather was pregnant at the time through an anonymous sperm donor -- the same man who supplied sperm for the couple's son. Heather gave birth to Mackenzie on Sept. 19, 2009.
"When you fill out the form, it has spots for 'mother' and 'father'," Gartner said. "We were told to cross out 'father' and write 'parent'."
The Gartners listed both of their names on the birth certificate application, but when the state health department issued the document Nov. 19, 2009, Melissa's name had been removed.
The health department denied the couple's request to reissue the document with both parents' names unless Melissa adopted Mackenzie. The state argued Iowa law on birth certificates only recognizes gendered roles of mother and father.
The court ruled that the health department did not have the authority to interpret terms like "paternity", "husband" and "father."
The health department said it needed to establish paternity to ensure financial support for the child, but the court said it is "just as important to establish who is financially responsible for the child and the legal rights of the nonbirthing spouse."
The Supreme Court's 2009 Varnum vs. Brien decision legalizing same-sex marriage provides the bedrock for Friday's decision, the court noted.
The Varnum decision has had far-reaching effects. In 2010, Iowa voters ousted two Supreme Court justices who supported the ruling. A few conservatives in the Iowa House of Representatives offered a budget amendment last month that would have cut the pay for any remaining justices who were part of the unanimous Varnum decision.
The Gartners' attorney, Camilla Taylor, of Lambda Legal, said the Iowa Supreme Court decision could also help gay couples who have a child through a surrogate mother. "The language the court uses about spousal presumption of parentage clearly applies equally to all kids," she said.
(c)2013 The Gazette (Cedar Rapids, Iowa)
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