Judge orders birth certificates be conducive to same-sex marriage

The state health department has to amend its birth certificate forms to reflect the new reality of same-sex marriages — and the children that result — the Arizona Court of Appeals has concluded.

In a new ruling, the judges said that two women who were married and who courts have concluded are both the legal parents of a child born during that union are both entitled to be listed as “mother” on the state-issued form.

Judge Peter Eckerstrom, a nominee of former Gov. Janet Napolitano, writing for the unanimous three-judge panel, acknowledged that’s not an option on current forms. Instead there are two choices: mother and father or parent and parent, the latter added after same-sex marriage became legal in Arizona.

That did not satisfy Suzan Swanson who previously won a high profile legal fight to have her parental rights affirmed. So she sued, demanding to also be designated as “mother.”

A trial judge rebuffed the demand, saying he could not order the Department of Health Services to redesign its birth certificate.

But Eckerstrom said that’s not true. He said if a court orders a change in a birth certificate, the state agency has to comply.

Swanson and Kimberly McLaughlin were legally married in 2008 in California. The couple agreed to have a child through an anonymous sperm donor, with McLaughlin becoming pregnant in 2010.

Before the birth, the couple moved to Tucson, entered into a joint parenting agreement and executed mirror wills, declaring they were to be equal parents to the child. After the 2011 birth, Swanson stayed home and cared for the boy while McLaughlin worked as a physician.

When Swanson filed for divorce, McLaughlin attempted to argue that she was not a “parent” as defined in state law. McLaughlin lost that case, which went all the way to the U.S. Supreme Court.

What that left is how the child’s birth certificate reads.

McLaughlin argued she should be listed as “mother,” consistent with state law, or have the designation amended to “biological mother,” with Swanson listed as “legal parent” or “legal mother.”

Swanson wanted both to be listed as “mother.” But, given the way the health department forms are written, she said she would settle for both being listed as “parent.”

Eckerstrom said there’s no reason Swanson can’t get what she wants, regardless of the birth certificate forms.

” ‘Mother’ is the semantically correct term for a female parent,” he wrote. More to the point, the appellate judge said state law requires the health department to comply with court orders to amend birth certificates.

He acknowledged that law could be interpreted as limited to things like changing the names of the parents or the child. But Eckerstrom said that law also can apply to the “field identifiers” on the form.

More to the point, he said that can specifically include situations where courts have ruled that both parties are entitled to be considered the child’s “mother,” regardless of how the forms are now listed.