As the Bureau of Vital Statistics updates software and implements a judge’s orders, the issue has become more complicated than expected
DAVID TAFFET | Senior Staff Writer
Former Austin City Councilwoman Randi Shade and her wife, Kayla Shell, had a commitment ceremony in 2004 and threw a big party to celebrate. They had a child in 2006, and a second child in 2008.
In 2013, the couple traveled to New York where they were legally married.
Shade is the birth mother of both children. Shell was there for the conception both times. She was the first one to hold the children after they were born. She was, Shade said, “there every step” of the way.
But Shade’s is the only parent name that appears on the children’s birth certificates.
Texas law, Shade said, is “clearly designed to make a statement that makes my kids feel bad.” In addition, she pointed out how the law makes no sense because “the more people responsible for the child, the better.”
Shade’s and Shell’s children are protected, because the two moms took the extra legal steps necessary to complete a second-parent adoption when each child was 6 months old.
But that means when they registered the children for school, instead of being able to present a birth certificate with both parents’ names as opposite-sex couples can do — even when opposite-sex couples’ children were adopted or born through artificial insemination, egg donors or surrogates — Shade and Shell had to present an entire file containing adoption papers and parentage certificates to prove their children had two parents, each of whom had equal parenting rights.
Shade pointed to the case of friends of hers — another lesbian couple — in which one was the egg donor and the other carried the fertilized egg. The birth mother is on the birth certificate while the biological mother is not.
Texas is under court order to correct this disparity in the way same-sex couples with children are treated.
U.S. District Judge Orlando Garcia, who declared Texas’ law banning marriage equality unconstitutional in February 2014, ruled this month on a motion in the marriage case, asking that the state be forced to list a same-sex spouse on a man’s death certificate. In ordering the state to list the dead man’s spouse on the certificate, Garcia went a step further and ordered the state to equalize treatment for same-sex couples regarding birth certificates, too.
Garcia gave Attorney General Ken Paxton until Aug. 24 to have new rules in place and ordered him to appear in court on Sept. 10 to show that changes have been implemented. If he fails to do so, Paxton will face a contempt of court citation.
Neel Lane, plaintiffs’ attorney in the Texas marriage equality case, said he’s just looking for the rules to be the same for all parents.
But equalizing those rules has proven more complicated than expected because of the variety of circumstances through which couples — both gay and straight — have children. In addition, since same-sex couples couldn’t legally marry in Texas until June this year, many chose not to be married elsewhere since the marriage wouldn’t have been recognized once they returned home.
Texas is one of nine states that recognize common-law marriage. In Texas, a couple doesn’t have to be together any specified period of time to be considered married; all they need to do is agree to be married, cohabitate within the state after the agreement and represent themselves as married.
Shade and Shell had a ceremony in Texas in 2004 and have presented themselves as a married couple ever since. Once the software is updated, they should be able to go to the Travis County Clerk’s office and file for amended birth certificates for their children — as long as this is one of the situations the new rules cover.
No one has seen those new rules yet, so no one knows for sure how it will all work.
What is a birth certificate?
Joel Lazarine, legal director of Legal Hospice of Texas, said to think of a birth certificate as a legal document, not a medical record. He said if it were a medical record, the biological mother and father should be the only names on the certificate.
But that’s not how birth certificates are used, Lazarine noted. When opposite-sex couples adopt, both names are on placed on the amended birth certificate. Biological parents’ names are normally sealed in court records and are irrelevant to the family as they raise the child.
An accurate birth certificate, he explained, is one that states the names of the parents raising the child.
Lane explained that in Texas, the birth certificate begins with the birth mother. If she is married, her husband is presumed to be the second parent. If same-sex couples are to be treated equally under the law, when a married lesbian gives birth, her wife should be the presumed second parent on the birth certificate.
When a gay male couple has a baby through a surrogate, the woman giving birth to the child must first give up parental rights. That must happen whether the woman is the biological mother or if a fertilized egg from another woman was implanted in her.
If a straight couple uses a surrogate, once the birth mom’s rights are ended, both the father and his wife’s names are placed on the birth certificate. With a gay couple, the biological father’s name goes on the birth certificate and his husband’s name should be added as the second parent.
Both parents’ names should be on the birth certificate, but — again — the final rules haven’t been issued, warned adoption attorney Suzanne Bryant.
She said she expects that married couples now expecting a child should be able to get a birth certificate listing both parents at the time of the child’s birth. But until rules are in place, she advised, check with an attorney to be safe.
Bryant said she’s still recommending a parentage order to establish parental rights. A parentage order is easier to obtain than an adoption order.
Adoptions require criminal background checks, home studies and references. Bryant said the amount of work required is a troublesome hassle and expensive. She said if a parentage order can be obtained before the child is born, both parents’ names should go on the birth certificate when the child is born.
Same-sex couples won’t have to wait six months before completing a second-parent adoption, which was the case before marriage equality in Texas.
According to Bryant, the software update will allow parents to be listed as Parent 1/Parent 2 or Mother/Mother, Mother/Father or Father/Father.
The legislative battle
State Rep. Rafael Anchia has worked passionately on the issue for the last four sessions of the Texas Legislature. Each session, he introduced legislation to have accurate birth certificates issued to same-sex parents.
Anchia said he became involved in the situation because of children in his neighborhood who play with his kids and babysit for them.
“I couldn’t believe that a state that is pro-family and pro-adoption doesn’t accurately reflect their family on their birth certificates,” he said.
While Anchia’s bills didn’t make it to the House floor for a vote, they were heard in committee.
“We heard testimony where a biological mother went to get a passport and couldn’t,” he said. “The law created such cruel and perverse results, it was very upsetting.”
Anchia said he was sorry he couldn’t get his bills passed to help children sooner, but that he is delighted that Judge Garcia is making sure children of same-sex couples will finally be treated equally.
Meanwhile, software updates are being written while rules are being drawn up. Couples who were not married at the time of the birth of their children may still have to do a second-parent adoption. Those who want to prove common-law marriage may have to go to court to get a parentage order. Same-sex couples should be able to adopt together rather than file the second-parent adoption six months later.
This article appeared in the Dallas Voice print edition August 28, 2015.