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Indiana Attorney General Curtis Hill has asked the U.S. Supreme Court to reverse a federal appeals court’s ruling allowing a lesbian couple to be listed as the parents on their son’s birth certificate.
The couple at the center of the case, Ashlee and Ruby Henderson, are a married couple from Lafayette who were blocked by county officials from being listed on the birth certificate of their son, who was conceived through artificial insemination and carried to term by Ruby.
In 2015, the Hendersons sued, challenging Indiana’s birth records law that does not permit the non-biological parent to be listed on the birth certificate.
In their lawsuit, the Hendersons argued that leaving one mother’s name off the birth certificate would present legal issues when it came to health insurance coverage, who could speak for a child at a doctor’s appointment, and enrolling in school or in intramural sports.
They also argued it was unfair to force one parent in a same-sex marriage to spend anywhere from $4,000 to $5,000 to legally adopt the child they are raising with their partner, reports NBC News.
The courts sided with the Hendersons in 2016, finding Indiana’s policy unconstitutional. The state appealed the ruling to the 7th U.S. Circuit Court of Appeals in Chicago, and seven additional same-sex couples joined the Hendersons as plaintiffs challenging the policy.
In January 2020, the 7th Circuit ruled that under Indiana law, “a husband is presumed to be a child’s biological father, so that both spouses are listed as parents on the birth certiﬁcate and the child is deemed to be born in wedlock.”
As such, the justices maintained, a same-sex couple should be treated equally, with both spouses listed as parents regardless of biological ties to the child in question, in order to prevent discrimination.
Such laws, known as “presumption of parentage” laws, recognize the legal bond between a child and the non-biological parent who is married to the child’s biological parent, and are based on what is considered best for the care and protection of the child.
For example, such laws would recognize the male spouse of a woman who becomes pregnant by another man as the child’s father, rather than the biological father, based on the idea that the couple’s legal marriage — and the rights that derive from it — would provide a stable foundation for raising the child in question.
In 2017, the U.S. Supreme Court found similarly in a case out of Arkansas, known as Pavan v. Smith, in which two lesbian couples sued over a state policy prohibiting the non-biological mother from being listed as a parent on the child’s birth certificate.
The court found that because Arkansas has a “presumption of parentage” statute, a child’s birth certificate is not merely a vital record, but grants married parents a form of legal recognition not available to parents of children born out of wedlock.
But Hill, in his capacity as Indiana’s attorney general, filed a motion in June asking the Supreme Court to review the 7th Circuit’s decision.
He has since followed that up with his latest petition calling for a reversal of the decision. In his most recent petition, Hill claims that the decision violates “common sense” and could threaten parental rights that are based on a parent’s biological connection to their child.
“A birth mother’s wife will never be the biological father of the child, meaning that, whenever a birth-mother’s wife gains presumptive ‘parentage’ status, a biological father’s rights and obligations to the child have necessarily been undermined without proper adjudication,” Hill wrote.
The case is the first to deal with issues tangentially related to same-sex marriage ever since the confirmation of Justice Amy Coney Barrett.
Additionally, conservative justice Brett Kavanaugh had not yet been nominated when the case was decided, with Justices Gorsuch, Alito, and Thomas arguing against listing both parents on birth certificates.
Some LGBTQ advocates have previously expressed fears that social conservatives, like Hill, will seize the opportunity to erode marital rights and privileges enjoyed by same-sex couples by challenging precedent in the Pavan case and other pro-LGBTQ rulings.
Karen Celestino-Horseman, the Herndersons’ attorney, said she expects Hill’s brief to be discussed by the Supreme Court during a Dec. 11 conference.
“We are hopeful the court will follow the precedent in Pavan,” Celestino-Horseman told NBC News.
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