Stephanie Wang

stephanie.wang@indystar.com

The state of Indiana is appealing a federal judge's ruling allowing female same-sex spouses to both be listed on their children's birth certificates.

In June, Judge Tanya Walton Pratt ruled state laws unconstitutional for requiring a same-sex spouse to adopt a child in order to gain parental rights. The state only recognized a birth mother, and not her wife, on a child’s birth certificate.

Pratt ordered Indiana to extend the same parental rights to married same-sex couples as it does for married opposite-sex couples, including listing both mothers on a birth certificate.

While the state's appeal of that ruling is pending, same-sex couples will have their parental rights recognized.

"At this time, our office is merely continuing to defend statutes enacted by the legislature," Indiana Attorney General press secretary Corey Elliot wrote in an email.

In 2015, eight lesbian couples filed lawsuits to challenge state laws that allowed for only the birth mother to be listed as a parent on a child's birth certificate.

In her judgment, Pratt said, her ruling acted in the best interest of children and protected families. This recognition of parental rights, she said, was one of the benefits that needed to be equally extended to same-sex couples after the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges that legalized same-sex marriages nationwide.

Some other states have also grappled with the issue. In Texas, the state now issues birth and death certificates that recognize same-sex marriages after a court order in 2015.

But in Arkansas, the state Supreme Court recently ruled against same-sex couples, deciding that birth certificates must list biological parents.

The issue hinges on whether courts will interpret the U.S. Supreme Court's same-sex marriage ruling very narrowly to apply only to the right to marry, or more broadly, said Steve Sanders, associate professor at the Indiana University Maurer School of Law.

The opinion's emphasis on "equal dignity" leans toward a broader reading, he said.

"The Supreme Court is signalling not just a right to marry, but a broader right for same-sex couples to be treated in parity with opposite-sex couples," Sanders said.

The reasons for standing by existing state laws seem "inconsequential," he said, compared to the burden the laws place on same-sex couples.

The state had argued that its laws reflect parenthood by biology or adoption. Parenthood rights, the state said, are not a benefit of marriage.

But the couples said the state was discriminating against same-sex marriages, since opposite-sex parents are treated differently under state laws. The state affords the presumption of parenthood, the lawsuit said, to a man in a heterosexual couple in cases where he may not be the biological father, such as in cases of artificial insemination. But it does not offer the same presumption of parenthood to the wives of birth mothers.

Without those parental rights, women could encounter issues with enrolling their children in school, making medical decisions for their children or listing their children as dependents on insurance policies, the lawsuit said.

"We believe the U.S. Supreme Court settled this question," said Karen Celestino-Horseman, one of the attorneys representing the couples. "The family of a same-sex couple is every bit as worthy of protection as a family of a man and a woman."

With one of the couples involved in the lawsuit, one woman provided the egg, which was fertilized by a sperm donor who waived parental rights, and her wife carried the child. The birth mother was listed on the birth certificate, but the parent who gave the egg would have had to adopt her own child despite the biological connection.

The appeal will go through the U.S. Court of Appeals for the Seventh Circuit.

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Call IndyStar reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.