SALT LAKE CITY, Utah (ABC 4 Utah) – A judge recently ruled a lesbian couple will have both women listed as parents on their child’s birth certificate. However, the current statute in Utah only allows for a man and woman to be listed on a birth certificate. So, the Utah Department of Health is currently in a bind at the moment as they can’t go beyond what the statute states even after the Supreme Court has ruled same sex marriage equal across the nation.
The current statute states that the husband of a woman who gives birth is legally presumed to be the parent of the child and allowed to be on the birth certificate.
Angela and Kami Roe conceived their daughter through assisted reproduction. The law refers specifically to a husband providing sperm for, or consenting to, assisted reproduction. The Roe’s argued that treating same sex couples differently than opposite couples violated equal protection, considering the recent Supreme Court decision regarding same sex marriage.
In some ways the Judge Benson’s current ruling has been part of a domino effect of recent changes in legislation across the country.
Benson said, “The states has failed to show any legitimate reason, actually any reason at all, for not treating a female spouse in a same-sex marriage the same was as a male spouse in an opposite-sex marriage with regard to be recognized as the legal parent.”
But, some Utah laws are still lagging when it comes to these changes, which is why the Utah Department of Health couldn’t act anymore than what Utah law states when the couple first approached with their request for the certificate.
“That’s why we felt like we didn’t have the authority to issue the birth certificate in this case,” said Tom Hudachko, spokesperson for the Utah Department of Health.
While the department of Health is bound to the decision by this particular case, it brings into question further cases. With the Supreme Court ruling same sex marriage legal across the country, should the Department of Health overlook the current state law?
“That’s where we’re all still struggling, so they do their job and say ‘the law is the law, we’re not going to issue this birth certificate,’ the couple comes in and says but the Supreme Court has tweaked at least this part of the law and we think you should,” said Greg Skordas, an attorney in Salt Lake City.
In the past lesbian couples had to go through a step parent adoption or get a court order for the Department of Health to issue these birth certificates. But, the change in times puts pressure on a statute that has gender specific terms in many different places.
“Really what we need to happen is the legislature needs to go through and where they think appropriate, update the statute from the Supreme Court,” added Hudachko.
Because the ruling is fresh, the legislature will have to struggle with this issue and deal with laws currently on the books that restrict certain activities between same sex couples. As same sex rights will go beyond marriage and include same sex adoptions and same sex reproductive rights.
Until the state legislature can reconvene to address this issue in the next legislative session, the Department of Health can only go by what’s currently on the books. They are however, ready to comply with the judges court order and grant the couple their birth certificate. They hope that this ruling will also be applied on a broader sense than just a case by case basis as it is not beneficial for the families and the staff who have to make the determination.
Skordas believes considering the streak the Utah Attorney Generals Office has had in appealing cases involving gay rights, he wouldn’t be surprised if they appealed this decision as well.