opinion

Same-sex moms demand names on son's birth record

Update: Attorneys for Ruby and Ashlee Henderson filed the Lafayette couple's lawsuit Friday morning against Tippecanoe County and state health officials, contending that they should be allowed to have both of their names listed as parents on their son's birth certificate.

The defendants in the case, filed in U.S. District Court, Southern District of Indiana, include officials at the Tippecanoe County Health Department and Dr. Jerome M. Adams, the Indiana state health commissioner. The following story, appearing Thursday at jconline.com, gives details about the case.

To read the filing made in federal case, scroll down.

Same-sex moms demand names on son's birth record



When Ashlee and Ruby Henderson's son was born on Dec. 22, they had the start of the family they'd been planning and hoping for since they'd met six years ago.

"Our miracle baby," Ashlee said.

With a change in Indiana's marriage laws, the two Lafayette women were able to get married in November — "making it feel even more real as a family," Ashlee said. But when the Hendersons asked to have both of their names listed as parents on their son's birth certificate, the Tippecanoe County Health Department declined.

"Not without a court order, they told us, even though we were legally married," Ashlee said. "If that's what it takes, I guess."

The Hendersons are expected to file a lawsuit Friday morning in U.S. District Court, Southern District of Indiana, challenging the state law on birth records and asking that Ashlee's name be added to the birth certificate so she can be recognized as her son's mother, without having to go through the adoption process.

Even as the U.S. Supreme Court prepares to take on four cases dealing with same-sex marriage, this would be the latest fallout from the end of Indiana's gay marriage ban in 2014. The Hendersons are looking to sand down one of the rough edges of state law and vital records still built to accommodate a traditional, one-man/one-woman marriage.

"That birth certificate is the first step in telling your story," said Karen Celestino-Horseman, an Indianapolis attorney representing the Hendersons and their son, listed in a draft of the suit by his initials, L.W.C.H.

"Parents make hundreds of decisions on behalf of their children every day, from the first day," Celestino-Horseman said. "If you don't have some sort of legal relationship that's recognized, you can't do any of that."

The suit will challenge how state law defines "born in wedlock" and "born out of wedlock," saying it violates the equal protection clause of the 14th Amendment.

Indiana's birth records laws give a man presumed standing as a child's father if he and the child's biological mother "are or have been married to each other." The Hendersons' question, after Ruby's artificially inseminated pregnancy: Why wouldn't that apply to women in a marriage certified by the state?

"Indiana's law restricting the presumption of parenthood to men and bastardizing children born to women in same-sex marriages," a draft of the suit claims, "publicly stigmatizes persons in a same-sex marriage and sends a hideous message to their children."

First of its kind

Chris Paulsen, spokeswoman for Indiana Equality Action, which is helping cover legal expenses for the Hendersons, said she believes this is the first case of its kind in Indiana.

Other states already have been through the birth certification question, though.

In 2013, the Iowa Supreme Court ruled that parents in same-sex marriages must be allowed to list the names of both parents on a birth certificate. Iowa legalized same-sex marriages in 2009.

The Virginia Department of Health didn't wait for a court order. On Jan. 22, the Virginia agency sent letters to hospitals, saying that forms were being updated to allow two female spouses to be listed on a birth certificate "when one of the spouses is the gestational mother." Same-sex marriage became legal in Virginia in October 2014, when the U.S. Supreme Court let stand a number of federal court rulings that gay marriage bans were unconstitutional.

Indiana's ban on same-sex marriages ended then, too.

"I'm sure (this situation has) happened more in Indiana, just because babies are born every day and there's quite a few married, same-sex couples in the state," Paulsen said. "Legally, I think it is very cut and dried. But, you know, Indiana is never one to do stuff the easy way. … It's just a matter of having to bring the state up to speed with the rest of the nation again."

Leading up to son's birth

When her wife was pregnant, Ashlee said she assumed there would be no problem. Friends of theirs had been through the same thing in Massachusetts a few months earlier without incident. But a month before their son was due, she went to the county health department to make sure.

Craig Rich, Tippecanoe County Health Department administrator, said it was the first time the issue came up for his office. He said his department asked health departments in other counties, the Indiana Department of Health and the department's attorneys. Each time, the answer was the same.

"Basically, the same-sex ruling doesn't really change the way a birth record is done, because birth certificates all have to do with biological parents," Rich said. "Again, we're just following Indiana Code. We understand and we sympathize, but current rules are as it is."

When their son was born Dec. 22 at IU Health Arnett Hospital in Lafayette, Ruby said hospital officials didn't seem to know how to deal with state forms that asked for a mother and father, while caring for two mothers.

"It was more a case that nobody knew anything — at the health department and everywhere else," Ashlee said. "It was like it was kind of new. So I think everyone was sort of scared of the situation and wanted to brush it off."

The Hendersons, undeterred by the health department's take, crossed out references to the word "father" and replaced it with "Mother No. 2" on the birth certificate forms. They say hospital officials told them that computer software used at IU Health Arnett wouldn't be able to handle that.

"But we did it anyway," Ashlee said. "He was our son. Our son. We were his parents. Both of us, his parents. From the start. We wanted the records to show it."

Two weeks later, Ruby picked up their son's birth certificate at the health department. Her name was the only one listed as a parent. In the space marked "Birthplace of Father," the record reads: "Not stated."

Since then, Ashlee said, she's been sweating the details of being a parent — diapers, late nights and burp rags — without the protection of being the legal parent.

The only way to do that was through the time and cost of an adoption.

"We could just do that," Ashlee said. "But we don't understand why we'd have to. We're married. Indiana says so. Why do we have to do more than that?"

'Always has to be a test case'

Amy Reel, spokeswoman for the Indiana Department of Health, said the department had not been informed about a possible lawsuit or its claims. She said on Thursday that she was gathering information about advice the state department was giving local health departments about birth certificates for same-sex, married couples. But the information wasn't immediately available by end of business hours Thursday.

Randy Vonderheide, attorney for the Tippecanoe County Health Department, said the statutes are anything but easy to interpret.

"We'll take a look at the lawsuit," Vonderheide said. "I understand times may well be changing. And we might have to take a little different look at what the current statutes indicate. It could be something that could well land in our legislature."

Rich, the Tippecanoe County health administrator, said a lawsuit isn't a surprise.

"From my understanding, this was obviously going to go higher than us," Rich said. "We need an answer, I think we can all agree with that. … There always has to be a test case. I think there are 92 counties waiting for this same thing."

Bangert is a columnist with the Journal & Courier. Contact him at dbangert@jconline.com. Contact him on Twitter: @davebangert.