In 2015, the U.S. Supreme Court ruled in its Obergefell decision that American same-sex couples are entitled to marry “on the same terms and conditions as opposite-sex couples.” With this decision, the Supreme Court made a huge difference in the lives of committed same-sex couples and their children. In its decision this year in the Pavan case, the Court has further expanded the guaranteed rights of same-sex parents to include the right of the non-biological parent to be listed on the birth certificate of a child of the couple.
The case arose from the requests of two married same-sex couples who conceived children through anonymous sperm donors to have both members of the couple listed on their baby’s birth certificate. In both situations, the Arkansas Department of Health issued birth certificates listing only the birth mother’s name.
Being listed on your child’s birth certificate is important to every parent for a variety of reasons — to be able to register your child for school, to be able to cover your child on your health insurance coverage, and most importantly, to establish your parental rights.
In defending the practice of the Department of Health, Arkansas argued that the state used birth certificates as a tool to record biological parentage, and thus being named on a birth certificate is not a benefit of marriage. However, the Supreme Court found that disparate treatment was being given to opposite-sex couples who conceive a child using an anonymous sperm donor but are able to list the husband on the birth certificate, and same-sex couples who use the same method but cannot list the non-biological parent on the certificate. This disparate treatment, the Court ruled, is unconstitutional and does not conform to its decision in Obergefell.
Therefore, as of this summer, states cannot preclude married same-sex couples from being listed on their child’s birth certificate if their child was conceived via artificial insemination where the state gives different treatment to similarly-situated heterosexual couples.
The full opinion can be found at Marisa Pavan v. Nathaniel Smith, 582 U.S. ______ (2017) (decided June 26, 2017).