The law is slowly catching up to the different forms that families take, including the roles and titles of parents. You might think the designation of “parent” instead of “mother” on a birth certificate wouldn’t make much of a difference. But it was enough for one mother to appeal an Arizona trial court ruling regarding her designated title on her child’s birth certificate.
Breaking Barriers
Last month, the Arizona Court of Appeals ruled in the case of In re Marriage of McLaughlin and Swanson. The case had already made history when, in 2017, the Arizona Supreme Court held that the state’s marital presumption of parentage necessarily equally applied to a same-sex couple as to an opposite-sex couple. After remand to the trial court, nearly all issues were settled. Except one significant one. Appellant Kim McLaughlin accepted that her ex-spouse, Suzan Swanson, would receive parental recognition of the child McLaughlin gave birth to during their marriage. McLaughlin, however, took issue with the trial court’s order designating her as “Parent” on her child’s birth certificate, instead of “Mother,” as she was previously designated.
Are These Our Only Choices?
McLaughlin argued to the trial court that she should continue to be listed as “Mother,” and that her ex should be listed as “Legal Parent” or “Legal Mother.” Ouch. Might as well thrown in “Lesser Parent” or “Lesser Mother.”
The ex, Suzan Swanson, argued that they should both be equally listed as “Mother.” However, because the forms published by the Arizona Department of Health Services (ADHS) only have the options of “Mother/Father” or “Parent/Parent,” she asked that, in the alternative, both parents be designed at “Parent.” The trial court granted Swanson’s alternative request, noting that in “an ideal world, the field identifiers available for birth certificates should reflect all possible circumstances of the birth of a child.” But, the judge held, because ADHS was not a party to the action, the court could not modify the identifiers used in those forms.
A Constitutional Violation?
On appeal, McLaughlin argued that the court was punishing her for previously being married to a woman — stripping her of her “Mother” designation on her child’s birth certificate in violation of her Fourteenth Amendment right to equal protection. The Court of Appeals declined to address whether there had, in fact, been a violation of McLaughlin’s Constitutional rights. Instead, the Court found that the Arizona judiciary was authorized by statute to amend birth certificates, and that that authorization was not limited solely to the names that appear on birth certificates. The Court concluded that even without ADHS as a party, it had the authority to amend parent designators, regardless of the options on ADHS forms. The Court wisely opted to avoid the problematic “Mother/Legal Parent” or “Mother/Legal Mother” option requested by McLaughlin, instead ruling in favor of the equal “Mother/Mother” designation.
I had a chance to catch up with Birth Rights Bar Association President, Indra Lusero, on the importance of legal designators of parent status. Lusero maintains that words used to formally designate someone’s parental identity on legal documents can be extremely important. “This is due at least in part to the history of discrimination against people based on their sexual or gender identity. Being named with dignity, accuracy, and in terms accessible to heterosexual or cisgender people is essential to equality and justice.”
Nice job, Grand Canyon State. And a happy Thanksgiving to everyone!
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.