UPDATED: Arkansas Judge: 3 Gay Couples Can Amend Kids' Birth Certificates

Nov 23, 2015

Pulaski County Circuit Judge Tim Fox.
Credit courts.arkansas.gov

Pulaski County Circuit Court Judge Tim Fox on Monday said three same-sex couples can ask the Arkansas Department of Health to change their children’s birth certificates to reflect both spouses’ names. A suit was brought in June following the US Supreme Court ruling legalizing same-sex marriage.

KUAR’s Jacob Kauffman spoke with the former Dean of the UALR Bowen School of Law, Professor John DiPippa, about the rights of non-biological parents.

KAUFFMAN: How does this tie into the benefits granted by the US Supreme Court decision that legalized same-sex marriage?

DIPIPPA: It’s an outflow if you will of the Supreme Court decision. When they recognized same-sex marriages as marriages, and applied that across the country it had a lot of ripple effects on a lot of statutes that defined marriage in traditional ways.

The issue in Arkansas and some other states is that the laws that talk about birth certificates assume there would an opposite sex couples and so they talk about the mother and the father or the wife and the husband. Of course, those terms are outdated in a world where there’s same-sex marriage. What the argument is, is that just because the statue is written in gender specific ways it should be read to include the opportunity for same-sex couples to register their parentage just like opposite sex couples.

KAUFFMAN: This may sound a little bit odd, but could you explain the purpose of a birth certificate? Why it isn’t maybe just a matter of who a biological parent is but what it means for non-biological parental rights, for same same-sex or opposite sex parents, to be on a birth certificate?

DIPIPPA: A birth certificate establishes obviously the identity of the child but then also establishes who are the parents of that child. Once you define somebody as a parent they get a whole host of other rights regarding custody, care and visitation, decision making about the child and registering the child for school. There are all sorts of things that flow from that connection of child to parent.

The reason it matters for non-biological parents is that for hundreds of years the law had a presumption that says a child born to a married couple is presumed to be the married couple’s child. So there’s no special proof to show that the husband is the biological father. That actually changed as in vitro fertilization became available. You had biological fathers who were no longer the husband of the mother.

States like Arkansas were at the forefront of allowing non-biological parents to be listed on the birth certificate. So that if a woman went through in vitro fertilization her husband wouldn’t have been the biological father but he could be listed on the birth certificate as the father.

If you then came forward to same-sex couples, they’re conceiving through in vitro fertilization so they’re saying our family should be recognized in exactly the same way that an opposite sex couple who conceived through in vitro fertilization are recognized as parents.

KAUFFMAN: This statement from Judge Fox, telling three couples to go ask for amended birth certificates from the state Department of Health. It’s not a formal, written order applying to all, at least at this point. That’s expected to come fairly soon though. How would this move forward if Republican Attorney General Leslie Rutledge wants to appeal this? She’s opposed the inclusion in the past.

DIPIPPA: If she appealed then she could ask Judge Fox to stay the order which may or may not be granted. We saw that go back and forth with the marriage litigation. I think ultimately the law is on the side of the same sex couples. There are at least three other states who have similar issues. Judges in each of those states ordered the states to allow same sex couples to be registered as parents.

Long term it seems to me the Arkansas Legislature will need to update its language across the statutes so that they no longer reflect the assumption that married couples will be opposite sex.

Associated Press Content:

A Pulaski County judge says three same-sex couples who sued the state for refusing to name both spouses on their children's birth certificates can get the documents amended to list both names.

Judge Tim Fox did not issue a formal ruling after a hearing Monday but said the three couples who filed suit can go to the Arkansas Department of Health to change the documents immediately. Fox said he will issue a written ruling soon.

The married women filed suit after the U.S. Supreme Court in June struck down gay marriage bans nationwide. Two of the couples were married out of state before the U.S. Supreme Court ruling, and a third was married in Arkansas days after the decision.

The couples' children were conceived through anonymous sperm donors.