'You can't overcome biology,' judge says to same-sex couples

JULIA May 24, 2017
'You can't overcome biology,' judge says to same-sex couples

 'You can't overcome biology,' judge says to same-sex couples, A panel of three appeals court judges are examining whether Indiana discriminates by not recognizing two married women both as parents on their children's birth certificates.
udge Diane S. Sykes of the 7th U.S. Circuit Court of Appeals in Chicago drew distinctions Monday between biological parentage and parental rights and which of the two should be represented on birth certificates.
"You can't overcome biology," Sykes said. "If the state defines parenthood by virtue of biology, no argument under the (Constitution's) Equal Protection Clause or the substantive due process clause can overcome that."
"Your Honor, with all due respect, we maintain that parenthood is no longer defined by biology," said Karen Celestino-Horseman, the lawyer for eight same-sex couples who brought the lawsuit against the state for allowing only a biological mother and a father to be named on birth certificates. 
One Indianapolis couple who are a part of the lawsuit, Jackie and Lisa Phillips-Stackman, had a baby in 2015 born from Jackie's embryo, fertilized from a sperm donor with no parental rights, that Lisa carried.
"That's a policy argument to take to the legislature," Sykes responded.
The state of Indiana is appealing a ruling by a federal District Court judge, who sided with the same-sex couples and ordered the state to recognize both women as parents on birth certificates of children who are conceived through a sperm donor.
"In our view, that order creates an inequality that did not exist before and undermines the rights of biological fathers and their children," Indiana Solicitor General Thomas Fisher said.
The couples' case argued that parental recognition should be a benefit conferred by the U.S. Supreme Court's marriage equality ruling in 2015, known as Obergefell v. Hodges. Even if one woman is not the birth mother, she should be recognized because of her wedded status — similar to the way opposite-sex couples often are treated, the lawsuit said.
"The statute creates a paternity presumption that just is impossible in a same-sex marriage situation," Sykes said, referring to Indiana's statute on birth certificates that the couples are challenging.
"Your Honor, that's if one still presumes that parenthood is still defined —" Celestino-Horseman said.
But Sykes interrupted.
"It's not a parenthood statute. It's a paternity statute. Paternity presumption is impossible in a same-sex marriage situation," the judge said. "So we just don't have any kind of discrimination going on here at all."
Later, Sykes said what the couples may actually be seeking is a redefinition of parenthood.
"Your Honor, parenthood —" Celestino-Horseman said.
Sykes interrupted again.
"— is biological or adopted," the judge said. "You want this third category."
As Celestino-Horseman cited relevant cases, Sykes delineated between marriage cases and parenthood cases.
In their lawsuit, the eight couples argued that the state allows opposite-sex couples to say the husband is the father of a child who is conceived with a sperm donor. But it doesn't extend the same presumption of parenthood to a wife who isn't the birth mother.
The state of Indiana officials countered that opposite-sex couples aren't supposed to do that.
The mother is supposed to state when her husband is not the father. But that's not what often happens in real life.
"That led me to think that your argument is that a state law becomes unconstitutional because people subject to the state law don't follow it, which would be a very difficult position to take," Judge Frank H. Easterbrook said.
The debate is then about how state law is supposed to operate — not whether it discriminates, he said.
Easterbrook asked how the couples' case would apply to two married men who have a child through artificial insemination.
Celestino-Horseman indicated the situation was more complicated because it would involve surrogacy.
"I don't want to be the one to tell you this, but Obergefell says there can't be any sex discrimination, and now you're saying there must be sex discrimination," Easterbrook said. "In a female-female marriage, the right answer is mother No. 1 and mother No. 2.
"In a male-male marriage, the right answer is surrogate mother, sperm donor, followed by adoption," the judge said. "In your view, doesn't there have to be identical treatment of the male-male marriage and the female-female marriage?"
Celestino-Horseman responded that wasn't part of her case.
"We can't ignore the logical implications of your arguments. And you seem to want to," Easterbrook said.
He added that the case aimed to require "a misrecording of who the father is."
"Your view seems to be that it is unconstitutional for Indiana to correctly record the parent," he said.
The 7th Circuit — which takes appeals of federal cases in Illinois, Indiana and Wisconsin — is taking this case under advisement and may rule at a later date.
Follow Stephanie Wang on Twitter: @stephaniewang
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