Updated: Dec 11, 2020
It's time for the media to stop suggesting it's 'anti-gay' to maintain laws aimed at respecting the rights and obligations of a child’s biological father.
Depicting a law as “anti-gay” is the kind of sensationalism sure to produce plenty of “clicks,” “likes,” and “shares” on social media. The modern-day mudslinging journalist doesn’t even need facts to back up such an accusation to get attention.
Just consider news coverage of our efforts to defend a longstanding Indiana law governing how parents are identified on a newborn baby’s birth certificate. For decades, if not centuries, Indiana has recognized two types of parenthood: biological and adoptive. Indiana, therefore, lists a child’s biological parents, and no one else, on the child’s birth certificate unless the child is legally adopted.
When a married woman gives birth in Indiana, her husband is presumed to be the biological father — barring any information to the contrary. Such a presumption of a child’s biological connection to both spouses obviously cannot be made when the birth mother is married to another woman.
In the latter circumstance, Indiana law has permitted the wife of the birth mother to become the child’s parent through adoption — just as a man may adopt the child of his wife when the biological father happens to be another man (such as in many cases of artificial insemination).
Anytime a child is adopted, the adoptive parent enjoys the same legal rights and interests associated with the child as a biological parent. Objections to Indiana’s fatherhood-presumption law ignore adoption as an available means to attain parenthood.
Multiple outlets have published headlines screaming that all these issues revolve
around how the world should treat “gay parents.” From seeing such stories, the casual reader might get the impression that our law reflects simple-minded discrimination and prejudice. Yet while the case was brought by gay married couples, the law itself has nothing to do with sexual orientation.
Indiana’s law is built quite straightforwardly on the longstanding principle that both biological parents of a child have rights, obligations, and legal interests associated with the child that can be overcome only by judicial decree. As Indiana’s attorney general, in respect of my duty to defend state law, I recently filed a brief asking the U.S. Supreme Court to review a lower federal court’s declaration that Indiana’s birth-certificate law is unconstitutional.
The federal appeals court ruled that, because Indiana does not require a genetic test for every birth, our birth-certificate system is somehow based on marriage rather than biology. But why should states be forced into the unnecessary expense of requiring a DNA test for every newborn, even those born to a mother who does not doubt that her husband is the biological father?
The great majority of the time, a birth mother’s husband is the baby’s biological father. By adding unnecessary expense and warrantless intrusion into the privacy of the marriage, mandatory DNA tests for every child could create more problems, not fewer.
Conversely, why should Indiana be forced to abandon its practice of grounding parental rights, at least initially, in biological connections to the child rather than a pure maternal assignment — potentially violating the fundamental rights of biological parents? And what then about the rights of two married gay men who wish to have a baby? How do they acquire parental rights at birth? Alas, the lower courts avoid that unanswerable question.
Quite simply, the U.S. Constitution does not require Indiana to make such costly, intrusive, and ultimately inequitable choices. Nor do the Supreme Court’s cases upholding the rights of same-sex couples to marry and have children require states to ignore biological facts.
In one previous case, the Supreme Court struck down an Arkansas law that some have tried to compare to Indiana’s. But the Arkansas law provided that the husband of a birth mother be named on the birth certificate as the father even when the mother was impregnated by artificial insemination with the help of a sperm donor. Indiana law, which recognizes only “a biological or an adoptive parent,” forbids such knowing misidentification of a biological father.
The Supreme Court should uphold Indiana’s common-sense system for presuming — subject to rebuttal — the identity of biological parents at birth. Just as important, it is time for the media to stop suggesting that it is “anti-gay” for a state to maintain laws simply aimed at respecting the constitutionally protected rights and obligations of a child’s biological father.