[Resource] But, I’m on the Birth Certificate! Why a Birth Certificate Alone Is Not Sufficient Protection for Your Legal Parentage Rights

This blog post was written by Amira Hasenbush for the National LGBT Bar Association’s Family Law Institute.

A common misconception among LGBT parents is that being listed as a parent on a birth certificate is all that is needed to establish one’s legal parentage to their child.  If only it were so simple.

I’d like to give you an example to illustrate the issue more queerly.  Close your eyes and hearken back to the days of yore… It’s late 2013, and the Supreme Court has required the federal government to recognize same sex marriages from the states that allow them.  Nevertheless, we were in a legal enigma: what happened to those marriages when they crossed state lines from a marriage equality state to a non-marriage equality state? Lauren Beth Czekala-Chatham and Dana Ann Melancon can tell you what happened to them…the state no longer recognized their marriage.  So, when they moved from California to Mississippi and decided to get divorced, they were in a bit of a pickle. Mississippi decided that their marriage was against the state’s public policy, and therefore, the divorce and division of marital assets that they sought was not available to them.

“How could this have happened?”  You may ask. “What about the Full Faith and Credit Clause from the US Constitution?”  Doesn’t it require that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”?  Well, the Supreme Court has held that the Full Faith and Credit Clause is meant to apply to judgments and court orders from one state to the next, but it does not hold the same requirements for laws or administrative records, like marriage certificates.  So, their valid marriage certificate in California was worth the paper it was written on when they moved to Mississippi. Fast forward to Obergefell, and marriage equality is now the law of the land, and the Supreme Court has held that marriage cannot be denied to same sex couples, but that was an issue of individual rights under the Constitution, and not an issue of recognition of administrative records across states.  

So, the issue that existed for marriage certificates a few short years ago still exists for birth certificates today.  You and your co-parent may both be on the birth certificate in your child’s birth state. But, what happens if you get into a car accident on a cross country road trip in a state that decides that your birth certificate is against public policy and therefore need not be recognized?  Seems like a pretty tragic time to be left out in the cold and unable to make medical decisions for your child, especially if your co-parent is not with you or is incapacitated.

NEW 2021 UPDATE: Think I’m being an alarmist? The Idaho Supreme Court just held that a non-biological mom who was married to her wife, the bio mom, when they signed a sperm donor agreement with their donor, AND who was listed on the child’s birth certificate, was NOT a legal parent to her child when the couple split up. For a more complete explanation, check out this article by Ellen Trachman.

What’s the solution?  A judgment or court order, which is entitled to Full Faith and Credit in every state in the union.  While it may seem burdensome and expensive to obtain an adoption judgment or a parentage order to confirm the parentage rights that you and your family and community – and even maybe your state laws – may already recognize and honor, to quote the great Cathy Sakimura, think of it as family insurance.  Consider how much you spend each year on car insurance, and then compare it to the one-time cost of a lifetime of legal protection for you and your children. While this cost may feel unjust, it is certainly worthwhile for the protection and peace of mind it should provide.