Under Indiana law, if a man and woman are married and the woman is artificially inseminated with the sperm of a third-party donor, the husband in that marriage is then identified as the father of the child. In contrast, if a same-sex couple is married and choose to have a child through artificial insemination, only the birthmother is placed on the birth certificate. The other woman in the marriage, the second parent, must then undergo the expensive and tedious process of step-parent adoption. Whereas a heterosexual couple can walk out of the hospital both being parents, a same-sex couple leaves the hospital with only one of the women being a parent.
On April 8, Karen Celestino-Horseman and her legal team argued on behalf of eight same-sex couples against the State Department of Health. Judge Tanya Pratt heard the case. The courtroom was filled with friends, family, and supporters, and this case is sure to set a precedent for Indiana. For one same-sex couple, the trip to the courthouse was their child’s first outing. “It’s an important one. A good first outing for our child, I think,” she said entering the courthouse.
Celestino-Horseman argued that under Indiana Code 31 (IC 31), which deals with issues of a biological parent and family law, a biased system is created against same-sex couples. Equal recognition is not given to same-sex couples, and the state violates their equal protection rights by refusing to recognize their parental rights in marriage. In the federal case of Obergefell v. Hodges, the Supreme Court upheld that same-sex couples have the fundamental right-to-marry. In turn, that means same-sex couples have the same marriage rights as heterosexual couples; including, and perhaps most importantly, the right of parenthood. Celestino-Horseman argued that the state has to follow the new definition of marriage.
The process of step-parent adoption is something that only a woman in a same-sex marriage has to go through when artificial insemination takes place . Adoption is expensive, and can cost an upwards of $5,000. For a heterosexual couple to both be considered parents after artificial insemination, the husband of the birthmother simply has to claim he is the husband to be considered the father of the child. This is where the issue of equal protection comes into play, because same-sex couples do not get the same privilege.
This can cause unfair situations for children born of same-sex couples. For example, if the legally recognized parent in the relationship dies, the child would then be placed in the care of a relative of the deceased parent, and not in the care of the co-parent in the marriage. If a same-sex couple divorces or separates, the legally recognized birthmother may attempt to cut the child off from contact with the co-parent, Also, if the co-parent dies, the child may not receive survivor benefits that would have been available if the co-parent was a legally recognized parent.
Celestino-Horseman said simply, “We are seeking the same treatment men get under state law for these women in parenthood. Two parents for a child is always better than one. Instead of taking responsibility for creating a system that’s biased against same-sex couples, the state points the finger at the birthmother and these same-sex couples.”
The state’s argument was less substantive, claiming that they do give equal protection to same-sex couples that want to have a child through artificial insemination. The state claimed that if a woman of a heterosexual marriage is artificially inseminated and claims their spouse as the father of the child, instead of the third party donor, they are committing fraud. So, technically, the state argued that heterosexual couples cannot do that, and Celestino-Horseman’s argument has no basis of evidence. Judge Pratt quickly questioned the state on this, saying there is no way to know if a heterosexual couple had a baby through artificial insemination or natural conception, and there is undue responsibility put on same-sex parents.
Judge Pratt hopes to have a decision on the case as soon as possible.