THE BIRTH CERTIFICATE SOLUTION: ENSURING THE INTERSTATE RECOGNITION OF SAME-SEX PARENTAGE.

Author:D'Ginto, Anna Marie
 
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INTRODUCTION 976 I. REVIEW OF CURRENT LANDSCAPE 980 A Overview of Differences in State Policy Leading to the Full Faith and Credit Problem 980 1. Marital Presumption and Presumptive Parentage Generally 981 2. Surrogacy 984 3. De Facto Parenthood 987 4. Second-Parent Adoption 989 B. Overview of Proposed and Existing Solutions 993 II. DOCTRINAL ANALYSIS OF BIRTH CERTIFICATES UNDER THE FULL FAITH AND CREDIT CLAUSE 996 A. Judicial Proceedings 996 B. Public Acts 997 C. Records 999 III. TREATING BIRTH CERTIFICATES AS RECORDS FOR PURPOSES OF INTERSTATE RECOGNITION OF PARENTAGE 1000 A. Existing Treatment as a Critical Indicator of Parentage 1001 B. Judicial Identification of the Importance in Providing Stability 1005 C Congressional Recognition of the Heightened Significance in Providing Certainty in Family Law 1008 D. Principles Underlying Recent Supreme Court Family Law Decisions. 1009 E. Other State-Issued Records Entitled to Interstate Recognition 1013 F. Judicially Developed Limitations and the Practicality of the Birth Certificate Solution 1016 1. Lack of Finality Limitation 1016 2. Circuit Split on Recognition Versus Enforcement Distinction 1018 CONCLUSION 1021 INTRODUCTION

Meet Pam and Sue, a married lesbian couple living in Washington, D.C. Desiring to start a family of their own, Pam conceives and gives birth to a child. At the hospital on the day of the birth, the hospital nurse records the names of both Pam and Sue on the child's birth certificate as parents. Pam and Sue intend for Sue to function as the child's other parent, a second mother. Assuming that Pam's egg is used, (1) Sue will bear no biological connection to the child. Therefore, traditionally Sue would be considered a legal stranger vis-a-vis the child, with no right to custody or any of the other benefits attendant with valid parental status. (2)

However, because Pam and Sue are domiciled in Washington, D.C., Sue's parentage will be recognized by virtue of her marital relationship with Pam, the child's birth mother. (3) To conclusively protect Sue's status, Pam and Sue could pursue a second-parent adoption. However, there are myriad reasons why a same-sex couple may choose not to pursue adoption to formalize the status of the nonbiological parent, including barriers to access, unavailability of adoption, and the requirement that an adequate amount of time pass to allow the applicant to display conduct entitling her to parental status. (4)

In the absence of adoption, if Pam, Sue, and their child travel outside of D.C., Sue's parentage will become insecure because there is no formal recognition of her status under current law. (5) Therefore, if the family wishes to make a short trip to Delaware, Sue's parental status, which is based on the operation of D.C.'s marital presumption provision, will be in jeopardy and even susceptible to rejection. (6)

Ambiguity regarding the validity of parental status also may arise in the event of dissolution of the same-sex partnership. Suppose that, after five years of coparenting in D.C., Pam and Sue terminate their relationship and Pam moves to Delaware. Now, Sue's ability to maintain standing as a parent to sue for custody is in question because the basis for her parental status (i.e., her marital relationship to the child's biological mother) has been terminated. In this circumstance, it is not unprecedented for the legal parent to use her partner's lack of a legal connection to argue that the nonbiological parent should not have any custody rights to the child, an argument that has been met with varying degrees of success.

Finally, the validity of Sue's parental status as reflected in the birth certificate may be relevant if Pam passes away because, as a nonlegal parent, Sue will not automatically be entitled to physical custody or decisionmaking rights with respect to the child's upbringing. In this scenario, it is especially crucial for Sue's legal status to be certain because the child is already grieving the loss of one parent. (7)

The unsettled nature of Sue's parental status is a question that looms large for hypothetical Pam and Sue, along with thousands of couples facing similar situations across the country. The answer to the uncertainty is complicated by a patchwork of state family law regimes spawned by the Supreme Court's landmark decisions in Obergefell v. Hodges (8) and Pavan v. Smith. (9) States differ significantly in their positions on whether both partners in a same-sex relationship are presumed to be the child's legal parents, and, if not, whether a second-parent adoption is available to establish the parentage of the nonbiological parent, thus leading to great ambiguity.

While the Full Faith and Credit Clause provides some protection against these uncertainties, it does not, at present, adequately solve the problem in every situation. The law is not clear on the extent to which a parentage arrangement that is neither formalized in a litigated custody order nor an adoption decree is entitled to interstate recognition. As a result, same-sex couples face a legal environment in which there is "volatile uncertainty regarding the portability of parental rights... from state to state." (10)

This Comment proposes entitling the parentage of same-sex parents as reflected in the birth certificate of the child to full faith and credit recognition on the basis that a birth certificate is a "record" within the ambit of the clause. The practicality of this solution is tied to the Supreme Court's recent decision in Pavan v. Smith, which held that the state-granted right of the marital partner of a woman who conceives a child through artificial insemination to be listed as a parent on the child's birth certificate must be extended equally to same-sex couples. (11) Because the vast majority of states have analogous statutes (12) or judicial decisions (13) requiring the marital partner of a woman who conceives through artificial insemination to be treated as the child's other parent (despite the undisputed lack of a biological connection), and because Pavan mandates that this guarantee be extended to same-sex couples, entitling birth certificates to full faith and credit recognition would provide greater protection to same-sex parentage. As long as parental status is reflected in the birth certificate, the couple can expect interstate recognition of their status.

By exploring the intersection of the "records" prong of the Full Faith and Credit Clause and the jurisprudence of birth certificates, this Comment seeks to elucidate one way in which the parentage of same-sex couples can be equalized to that of opposite-sex couples. Part I overviews the current landscape of family law across the United States, discussing four of the major areas in which state policies diverge and describing the inadequacies of existing solutions to protect parentage. Part II analyzes birth certificates under the doctrinal full faith and credit framework, resolving that birth certificates most naturally fit within the "records" category but concluding that the proper treatment of records is unclear due to jurisprudential ambiguity. Part III discusses why birth certificates should be entitled to a higher level of deference under the Full Faith and Credit Clause and explains how judicially developed limitations do not undermine the feasibility of this solution. A brief conclusion follows.

  1. REVIEW OF CURRENT LANDSCAPE

    Before considering the practicality of the birth certificate solution, it is necessary to understand the differences in parentage law across the United States and how the uneven legal landscape affects same-sex couples.

    1. Overview of Differences in State Policy Leading to the Full Faith and Credit Problem

      Given the vast diversity in the codification of family law, clashes between various states' policy choices inevitably arise. Because "[t]he regulation of domestic relations is traditionally the domain of state law," (14) family law legislation is an area where states can fully express the policy preferences of their citizenry. Indeed, this is an area where states make different, and sometimes diverging, policy choices. The potential for variation between states on various aspects of family law presents a potentially enormous problem for same-sex parents. This concern manifests in the possibility that a nonbiological, nonadoptive functional parent's parental status, recognized in their state of domicile, may be denied in another jurisdiction whose laws do not accord the individual parent status.

      With recent recognition of the uncertainty encountered by same-sex individuals seeking to establish their parentage under laws that were formulated primarily with heterosexual couples in mind, (15) many states are grappling with this thorny problem and attempting to provide either legislative (16) or judicial clarity. (17) Other states have not caught up with the problem, or have made a different policy choice. (18) This disparity in treatment of the law of parentage creates critical uncertainty because without valid parental status, the parent will not have a legal right to "make health care decisions for the child, including emergency or end of life decisions... [;] control schooling and education; consent to testing, immunizations, or psychological exams; or have the child excused for religious observances or released into her custody by law enforcement officers." (19) This Part will first briefly review the law on the marital presumption, surrogacy, de facto parenthood, and second-parent adoption, which are four of the key areas where state policies significantly diverge, and then summarize proposed and existing solutions, explaining why they are inadequate to solve the immediate recognition problem faced by same-sex couples.

      1. Marital Presumption and Presumptive Parentage Generally

        First, the longstanding marital presumption provides that the spouse of a woman who gives birth to a child during the course...

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