The next legal battle over gay rights in Iowa could come from a same-sex couple determined to have both of their names listed on their child's birth certificate.
Heather Lynn Martin Gartner, 39, and Melissa McCoy Gartner, 40, of Des Moines sued the Iowa Department of Public Health last year. The case was dismissed in January on a technicality, and re-filed two weeks ago.
The couple argue that the birth certificate for their daughter, Mackenzie - which lists only Heather Gartner, the biological mother - deprives the girl of the protections and benefits of two legal parents being present from birth.
"Since the state's not doing the right thing, someone has to stand up and make them do the right thing," Melissa Gartner said in the couple's first interview since filing the lawsuit.The case is months away from being heard or decided. But if a judge rules against the Gartners, the couple said they will appeal all the way to the Iowa Supreme Court.
The Iowa Department of Public Health last year defended its decision to not list Melissa's name on the birth certificate by arguing state law only allows the name of a husband to accompany the mother's name on birth certificates.
The case has the potential to reach the high court because a judge must decide if the principles of equality cited by the Iowa Supreme Court in its 2009 same-sex marriage ruling applies to this case, said Ann Estin, a University of Iowa law professor."The question is whether the nondiscrimination principles of (the court ruling) extend to this situation as well," she said.
An attorney for Lambda Legal Defense and Education Fund, a gay-rights organization in New York, is among the lawyers representing the Gartners.
Lambda Legal said it chose Iowa five years ago to file a lawsuit on behalf of six gay and lesbian couples denied marriage licenses by the Polk County recorder's office, because of the state's reputation for fair-minded courts and residents.The Iowa Supreme Court unanimously overturned a state law prohibiting same-sex marriage, citing constitutional protections of basic fairness and equal protection.
The Gartners and Lambda Legal said the health department's decision last year caught them off guard because of the clarity of the landmark court decision.
Of 11 states that recognize gay unions, only Iowa prohibits two women to be listed as parents on a child's birth certificate. The exception is if a child is adopted.Iowa code says a mother's husband is presumed to be the father of her child, unless the court declares otherwise.
The most recent state to make changes in its birth certificates is Maryland. The state health department announced three weeks ago that it would allow two women to be named as parents on a birth certificate without a court order. Maryland recognizes gay marriage performed in other states, even though state law prohibits same-sex couples to wed.
"It's a great irony that a Maryland couple could fly to Iowa and get married in Des Moines, fly back, have a child, and get an accurate birth certificate," said Camilla Taylor, an attorney for Lambda Legal who represents the Gartners. "But Iowans who have been born in their home state are denied an accurate birth certificate."
Gartners married before daughter born
Heather Martin Gartner has given birth to two children via anonymous donor insemination while in a relationship with Melissa. The couple adopted their first child, Zachary, 4.
The Gartners did not adopt daughter Mackenzie, because they had legally married in Polk County three months before the girl's birth. The couple said they believed that since they were married, both of their names would be listed on Mackenzie's birth certificate.They say that their concerns about only one parent being legally recognized were realized just months after the birth of Mackenzie, who is now 17 months old.
Early last year, Mackenzie developed a respiratory virus that required a five-day hospitalization, including a stint in the intensive care unit. Doctors told the couple their daughter would be placed on a ventilator if her condition did not improve overnight.
"She was breathing so hard that her belly and ribs were sinking into her spine," Melissa Gartner said. "She was working that hard to get what little amount of air she could get."Mackenzie awoke the next morning breathing easier. But Heather maintained a near 24-hour vigil at her daughter's bedside, because the couple feared doctors would not allow Melissa to make crucial medical decisions in Heather's absence.
Attorneys for the couple said health department officials' decision violates portions of Iowa code, as well as constitutional guarantees for equal protection and the right to pursue life, liberty and happiness.
Health department expected to comment this week
Chuck Hurley, president of Iowa Family Policy Center, described the decision made by the Gartners and other same-sex couples to intentionally deprive a child of a father as "societal malpractice."More importantly, growing up in a household without a father damages a child, because fathers and mothers play different and important roles in raising healthy children, he said.
"It's just one more incident, or evidence, of a culture right here in Iowa that's detached from reality on a sort of plain, common-sense level," said Hurley, whose group has campaigned against marriage rights for same-sex couples.
State health department officials said they would not comment on the lawsuit until it filed a response this week. The filing is due Thursday.In a letter to the Gartners' attorneys last year, the health department said Iowa birth certificate laws "expressly recognize the biological reality that women and men each play a distinct but equally necessary role in human reproduction and have corresponding rights, duties and obligations to their child."
The Iowa law requiring that a child born of married parents be considered a child of both spouses is written in gender-neutral language. This appears to give the Gartners a strong case that the health department's ruling violates state law, said Andrea Charlow, a Drake University law professor.However, the justification given by the department regarding birth certificates can be applied to other parts of Iowa code: Wherever the law mentions parents, it can be argued that it refers to a man and a woman for biological reasons.
"There's an argument on both sides, there's no question about that," Charlow said.
Thoughts?
best of luck to both women. It is through couragous examples like them that the laws are slowly being changed for the better.
As to the argument about the rights of fathers or the marginalization of men in society I honestly can't see any relevance in this case. there is no "husband" just a sperm donor.
If the biological father is different than the husband, does the biological father's name or the husband's name get put on the birth cirtificate?
If it is the husband's name, then the women have a strong case and they should both be on it.
If it is the biolgical father's name, then only the known mother should be put on it, and the biological father if he is known.
Based off of just the information presented here, it sounds like it is the husband's name. Therefore, I think the women are in the right and I wish them luck.