Arkansas Supreme Court Rules Against Same-Sex Parents in Birth Certificates Case

On December 8, the Arkansas Supreme Court issued a ruling in a case known as Smith v. Pavan (2016 Ark. 437), concerning three female same-sex married couples and the Arkansas Department of Health’s refusal to list both parents on the birth certificates of their children, all of whom were conceived using an anonymous sperm donor. The couples sued and a lower court issued a ruling ordering the Arkansas Department of Health (ADH) to issue the amended birth certificates, which the ADH did.  The lower court also ordered significant changes to Arkansas law governing the issuance of birth certificates, finding that portions of the code – that excluded same-sex married couples, by referring to “father and mother”, as opposed to “parents” – were unconstitutional. The ADH appealed to the Arkansas Supreme Court, but chose to not appeal the order to issue the amended birth certificates. Thus, the children of the plaintiff couples did receive correct birth certificates, with both parents listed. 

However, the ADH did appeal the ruling of the lower court holding that certain statutes were unconstitutional because they excluded same-sex couples. The Arkansas Supreme Court concluded that “tracing public-health trends and providing critical assistance to an individual’s identification of personal health issues and genetic conditions” was an important governmental objective and that “requiring the mother and father on the birth certificate to be biologically related to the child—are substantially related to the achievement of those objectives.”

In doing so, the Arkansas Supreme Court failed to acknowledge that in cases involving different-sex parents in the same circumstance (using anonymous donor sperm to conceive) the spouse (in this case, husband) of the woman giving birth is listed on the birth certificate, despite having no biological connection to the child.  The most troubling aspect of this ruling, however, came in the Court’s response to the ADH’s concession that the artificial insemination statute “is constitutionally infirm” and that by properly interpreting it, the Court would “resolve many of the concerns raised.” In a stunning case of ducking its constitutional obligations — the Arkansas Supreme Court’s opinion stated “[h]owever, this court is not a legislative body, and it cannot change the wording of the statute.”  It then goes on to say that since the artificial insemination statute had not been raised at the trial court level, it was an issue for another day.  It is difficult to believe that a state Supreme Court can reasonably fail to rule on the constitutionality of a statute before it, especially when both opposing parties agree as to its unconstitutionality. The opinion of this Court was clearly written to achieve a particular ideological objective, without regard for the actual facts and constitutional principles.

Of course, Family Equality Council believes this ruling to be in error.  There are several areas of the court’s opinion that are wrongly analyzed and decided.  This ruling is out of step with other state supreme courts who have ruled on this issue, arriving at the correct conclusion.  It is our hope that this case makes its way to the United States Supreme Court and is overturned. 

In the meantime, married same-sex female couples still have a pathway to getting both parents’ names on their children’s birth certificates. Family Equality Council has been arguing to state administrators, attorneys general, and same-sex couples generally around the country that the artificial insemination statute offers a pathway to equal treatment with different-sex married couples, with regard to being listed on their children’s birth certificates.  In Arkansas, even the ADH acknowledges that the language of the artificial insemination statute (Arkansas Code Annotated section 9-10-201(a)) which provides that “[a]ny 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” is “constitutionally infirm” in light of the Supreme Court’s ruling in Obergefell which provides that same-sex couples may not be denied “the constellation of benefits that the States have linked to marriage.”