Law School Case Brief
Pavan v. Smith - 137 S. Ct. 2075 (2017)
Ark. Code Ann. § 20-18-401 (2014) specifies which individuals will appear as parents on a child’s state-issued birth certificate. For the purposes of birth registration, the mother is deemed to be the woman who gives birth to the child. Ark. Code Ann. § 20-18-401(e). And if the mother was married at the time of either conception or birth, the name of her husband shall be entered on the certificate as the father of the child. Ark. Code Ann. § 20-18-401(f)(1). There are some limited exceptions to the latter rule—for example, another man may appear on the birth certificate if the “mother” and “husband” and “putative father” all file affidavits vouching for the putative father’s paternity. Ark. Code Ann. § 20-18-401(f)(1). The requirement that a married woman’s husband appear on her child’s birth certificate applies in cases where the couple conceived by means of artificial insemination with the help of an anonymous sperm donor. Ark. Code Ann. § 9-10-201(a) (2015) states: Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.
Leigh and Jana Jacobs were married in Iowa in 2010, and Terrah and Marisa Pavan were married in New Hampshire in 2011. These two same-sex married couples conceived children through anonymous sperm donation. Leigh and Terrah each gave birth to a child in Arkansas in 2015. When it came time to secure birth certificates for the newborns, each couple filled out paperwork listing both spouses as parents—Leigh and Jana in one case, Terrah and Marisa in the other. Both times, however, the Arkansas Department of Health issued certificates bearing only the birth mother’s name based on Ark. Code Ann. § 20-18-401 (2014), which required the name of a mother's male spouse to appear on a child's birth certificate, but which did not include the female spouses of women who gave birth in the State.
Was Ark. Code Ann. § 20-18-401 (2014) violative of the Constitution?
The Court held that Ark. Code Ann. § 20-18-401 (2014), which required the name of a mother's male spouse to appear on a child's birth certificate, but which did not include the female spouses of women who gave birth in the State, violated the Constitution and the mandate of Obergefell v. Hodges, which provided same-sex couples the constellation of benefits that the States had linked to marriage. Under § 20-18-401, same-sex parents in Arkansas lacked the same right as opposite-sex parents to be listed on a child's birth certificate, and these certificates were more than a mere marker of biological relationships because the State used birth certificates to give married parents a form of legal recognition that was not available to unmarried parents, and Obergefell proscribed such disparate treatment. The Court granted the petition for a writ of certiorari.
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