Heather Martin Gartner and Melissa Gartner, Individually and as Next Friends of Mackenzie Jean Gartner, a Minor Child v. Iowa Department of Public Health , 830 N.W.2d 335 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 12–0243
Filed May 3, 2013
HEATHER MARTIN GARTNER and MELISSA GARTNER, Individually
and as Next Friends of MACKENZIE JEAN GARTNER, a Minor Child,
Appellees,
vs.
IOWA DEPARTMENT OF PUBLIC HEALTH,
Appellant.
Appeal from the Iowa District Court for Polk County, Eliza J.
Ovrom, Judge.
The State appeals from a district court order requiring the Iowa
Department of Public Health to issue a birth certificate naming the
nonbirthing spouse in a lesbian marriage as the parent of a child born to
the couple while married. AFFIRMED AS MODIFIED.
Thomas J. Miller, Attorney General, Julie F. Pottorff, Deputy
Attorney General, and Heather L. Adams, Assistant Attorney General, for
appellant.
Camilla B. Taylor and Kenneth D. Upton, Jr., Chicago, Illinois, and
Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts, P.C.,
Des Moines, for appellees.
Timm W. Reid, Des Moines, and Byron J. Babione, Scottsdale,
Arizona, for amicus curiae Iowa Family Policy Center.
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Lance W. Lange and Nicole N. Nayima of Faegre Baker Daniels LLP,
Des Moines, and Michael A. Ponto of Faegre Baker Daniels LLP,
Minneapolis, Minnesota, for amicus curiae National Association of Social
Workers, Iowa Chapter.
Amanda C. Goad, New York, New York, and Randall C. Wilson of
ACLU of Iowa Foundation, Inc., Des Moines, for amici curiae American
Civil Liberties Union Foundation and American Civil Liberties Union of
Iowa.
Catherine C. Dietz-Kilen and Earl B. Kavanaugh of Harrison &
Dietz-Kilen, P.L.C., Des Moines, and Shannon P. Minter, Catherine P.
Sakimura, and Angela K. Perone, San Francisco, California, for amici
curiae professors of law.
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WIGGINS, Justice.
In this appeal, we must decide whether Iowa Code section
144.13(2) (2011) requires the Iowa Department of Public Health to list as
a parent on a child’s birth certificate the nonbirthing spouse in a lesbian
marriage when the child was born to one of the spouses during the
couple’s marriage. The district court interpreted the statute to require
the Department to issue a birth certificate listing the spouse as the
child’s parent. The district court also stayed its ruling as to any other
birth certificates the Department may issue to married lesbian couples
pending the appeal of the district court’s ruling.
On appeal, we conclude that we cannot interpret the statute in the
same manner as the district court. However, we do find section
144.13(2) as applied to married lesbian couples violates the equal
protection clauses found in article I, sections 1 and 6 of the Iowa
Constitution. Accordingly, the Department must presumptively list on a
child’s birth certificate the nonbirthing spouse in a lesbian marriage
when the child was born to one of the spouses during their marriage.
Consequently, we affirm the judgment of the district court ordering the
Department to issue a birth certificate naming both spouses as parents.
Therefore, we remand the case to the district court, order the district
court to lift the stay, and order the district court to remand the case to
the Department for issuance of a birth certificate also listing the
nonbirthing spouse as the child’s parent.
I. Background Facts and Proceedings.
A. The Gartner Family. Melissa and Heather Gartner are a
lesbian couple. They have been in a loving, committed relationship since
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December 2003. On March 18, 2006, they participated in a commitment
ceremony with family and friends.
The couple dreamed of the day they would become parents. Acting
on that desire, they began planning their family. The couple agreed
Heather would serve as the biological mother, but both would act as
equal parents to their children. Melissa decided to stay home to be the
children’s primary caregiver, while Heather worked outside the home.
Heather conceived their first child by anonymous donor
insemination. Melissa participated in every step of Heather’s pregnancy,
which included choosing the anonymous sperm donor. Melissa was
present for the birth of the couple’s first child.
Because Melissa and Heather were not legally married at the time
of the first child’s birth, the couple went through formal adoption
procedures to ensure Melissa’s name was on the child’s birth certificate.
The Gartners successfully navigated the adoption process after both
Melissa and Heather underwent background checks for criminal
misconduct and sexual abuse. Heather characterized the adoption
process as expensive, intrusive, and laborious. Once the couple finalized
the adoption, the Department issued the child’s birth certificate, which
named both Heather and Melissa as parents.
Two years later, in April 2009, we decided Varnum v. Brien, 763
N.W.2d 862 (Iowa 2009), which held Iowa’s Defense of Marriage Act
unconstitutional. Thereafter, the state began solemnizing same-sex
marriages. Melissa and Heather Gartner subsequently married in
Des Moines on June 13. Heather was approximately six months
pregnant with the couple’s second child, Mackenzie Jean Gartner, at the
time of their marriage.
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Three months later, on September 19, Heather gave birth to
Mackenzie. Heather conceived Mackenzie using the same anonymous
donor as for their first child.
B. The Birth Certificate. The day after Mackenzie’s birth,
Heather and Melissa completed a form at the hospital to obtain
Mackenzie’s birth certificate. The Department provided the form. On the
form, the Gartners indicated that both Heather and Melissa are
Mackenzie’s parents and that they are legally married.
The Department issued Mackenzie’s birth certificate on
approximately November 19. The certificate only listed Heather as
Mackenzie’s parent. The space for the second parent’s name was blank.
C. Proceedings. After receiving Mackenzie’s birth certificate
naming only Heather, the Gartners sent a letter to the Department
requesting a birth certificate recognizing both Heather and Melissa as
Mackenzie’s parents. The Department denied the request. The
Department refused to place the name of the nonbirthing spouse in a
lesbian marriage on the birth certificate without the spouse first adopting
the child, pursuant to Iowa Code section 144.23(1). The Department
indicated: “The system for registration of births in Iowa currently
recognizes the biological and ‘gendered’ roles of ‘mother’ and ‘father,’
grounded in the biological fact that a child has one biological mother and
one biological father . . . .”
The Gartners then filed a mandamus action in the district court.
The Department moved to dismiss for lack of subject matter jurisdiction.
After various motions, amendments, and refilings, the district court
dismissed the Gartners’ mandamus action without prejudice for lack of
jurisdiction. The district court determined the Iowa Administrative
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Procedure Act (IAPA) provided the Gartners with the exclusive means for
obtaining review of the Department’s decision.
Accordingly, the Gartners brought this subsequent action for
judicial review under the IAPA. The district court ordered the
Department to issue Mackenzie a birth certificate naming Melissa as a
legal parent. The district court found under the presumption of
parentage, the Department erred in not naming Melissa on Mackenzie’s
birth certificate. However, the district court did not reach the
constitutional issues, focusing instead on the Department’s
interpretation of section 144.13(2).
The Department timely filed its notice of appeal and a motion to
stay the district court’s ruling. The district court denied the stay as to
the Gartners, but granted it for other birth certificates the Department
may issue while the appeal of the district court’s ruling in this case is
pending. Thus, the district court required the Department to issue the
Gartners a birth certificate listing both spouses as parents, but did not
require the Department to extend the same practice to other married
lesbian couples.
II. Issues.
We must decide if we can interpret Iowa Code section 144.13(2),
otherwise known as Iowa’s presumption of parentage statute, to require
the Department to list as a parent on a child’s birth certificate the
nonbirthing lesbian spouse, when the other spouse conceived the child
during the marriage using an anonymous sperm donor. If we cannot
adopt such an interpretation of the statute, we then must determine
whether the Department’s refusal to list the nonbirthing lesbian spouse
on the child’s birth certificate violates the equal protection clauses in
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article I, sections 1 and 6 of the Iowa Constitution or the due process
clause in article I, section 9 of the Iowa Constitution.
III. Standard of Review.
A. Statutory Interpretation. An individual adversely affected by
administrative agency action is entitled to judicial review. Iowa Code
§ 17A.19(1). Iowa Code section 17A.19(10) of the IAPA governs judicial
review of agency decisions. NextEra Energy Res. LLC v. Iowa Utils. Bd.,
815 N.W.2d 30, 36 (Iowa 2012). The Department is an agency governed
by the IAPA. See, e.g., Birchansky Real Estate, L.C. v. Iowa Dep’t of Pub.
Health, 737 N.W.2d 134, 138 (Iowa 2007) (applying the IAPA when
analyzing the Department’s interpretation of a statute); Greenwood
Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 828, 833–35 (Iowa
2002) (reviewing action by a division of the Department under the IAPA).
The agency action at issue here is the Department’s interpretation
of the presumption of parentage in Iowa Code section 144.13(2).
Specifically, the Department interpreted section 144.13(2), containing the
terms husband, father, and paternity, to apply only to a male spouse in
an opposite-sex marriage, not a female spouse in a lesbian marriage.
The deference we give to the Department’s decision depends upon
the legislative grant of authority to the agency. If the legislature “clearly
vested the agency with the authority to interpret the statute at issue,” we
reverse the Department’s decision only when its interpretation is
“irrational, illogical, or wholly unjustifiable.” NextEra, 815 N.W.2d at 36–
37 (citation and internal quotation marks omitted). However, if the
legislature did not clearly vest the agency with such authority, we reverse
the agency decision if it relies on an erroneous interpretation of the law.
Id. at 37.
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To determine the breadth of the agency’s vested authority, we
carefully consider “ ‘the specific language the agency has interpreted as
well as the specific duties and authority given to the agency with respect
to enforcing particular statutes.’ ” Id. (quoting Renda v. Iowa Civil Rights
Comm’n, 784 N.W.2d 8, 13 (Iowa 2010)). We recognize that even though
“[t]he legislature may explicitly vest the authority to interpret an entire
statutory scheme with an agency[,] . . . the fact that an agency has been
granted rule making authority does not ‘give[] an agency the authority to
interpret all statutory language.’ ” Evercom Sys., Inc. v. Iowa Utils. Bd.,
805 N.W.2d 758, 762 (Iowa 2011) (quoting Renda, 784 N.W.2d at 13).
“ ‘[B]road articulations of an agency’s authority, or lack of authority,
should be avoided in the absence of an express grant of broad
interpretive authority.’ ” NextEra, 815 N.W.2d at 37 (quoting Renda, 784
N.W.2d at 14). The agency’s own belief that the legislature vested it with
interpretive authority is irrelevant. Iowa Code § 17A.19(11)(a).
There are specific standards to assist us in determining the scope
of the agency’s interpretive authority. These standards are found in Iowa
Code section 17A.19(10), subsections (a) through (n). We use these
standards to see if we reach the same result as the district court
regarding whether the agency has clearly vested authority to interpret
the statute. Renda, 784 N.W.2d at 10.
The validity of agency action under these standards turns on the
type of action taken. There are at least three types of agency action:
(1) contested case hearings, (2) rulemaking, and (3) the catchall category
of other agency action. Jew v. Univ. of Iowa, 398 N.W.2d 861, 864 (Iowa
1987). Here, the parties do not dispute that this action falls within the
other agency action category.
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After examining the Code, we find the legislature did not clearly
vest the Department with the authority to interpret section 144.13(2). To
reach this conclusion, we first recognize, in accordance with the district
court’s decision, that the legislature did not expressly authorize the
Department to interpret section 144.13(2). A review of the language the
Department has interpreted and its legislative grant of authority leads us
to this result.
The Department’s primary responsibility is to record vital events
occurring within the state. See Iowa Code §§ 144.2, .5. The Department
describes its role as custodian of vital statistics. The Code grants the
Department the power to “adopt, amend, and repeal rules for the
purpose of carrying out the provisions of [the Vital Statistics Code], in
accordance with chapter 17A.” Id. § 144.3. Nonetheless, rulemaking
power does not give the Department the authority to interpret all
statutory language. NextEra, 815 N.W.2d at 37. Accordingly, to find the
Department had the authority to interpret the statutory terms at issue,
including paternity, father, and husband, would be overreaching because
these terms are not exclusively within the expertise of the Department.
Instead, the legislature utilized these terms throughout the Iowa Code.
For instance, the term “paternity” appears in statutes that the
Department has no role in enforcing. See, e.g., Iowa Code § 252A.3
(defining liability for the support of dependents); id. ch. 600B (detailing
how to establish paternity and calculate child support).
Finally, the Department contends the appropriate standard of
review is for correction of errors at law. By so arguing, the Department
concedes the legislature did not instill in the agency the authority to
interpret the presumption of parentage statute. Thus, we agree with the
district court and accord no deference to the Department’s interpretation
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of the statute when deciding whether the Department breached the
abovementioned standards. Id. § 17A.19(11)(b) (“[T]he [reviewing] court
. . . [s]hould not give any deference to the view of the agency with respect
to particular matters that have not been vested by a provision of law in
the discretion of the agency.”). Accordingly, our task is to determine
whether the Department erroneously interpreted the presumption of
parentage.
B. Constitutional Issues. We can grant relief from administrative
proceedings if the agency’s action is “[u]nconstitutional on its face or as
applied or is based upon a provision of law that is unconstitutional on its
face or as applied.” Id. § 17A.19(10)(a). The court gives the agency no
deference regarding the constitutionality of the statute or administrative
rule. NextEra, 815 N.W.2d at 44. Determining whether a statute or
administrative rule offends the state or federal constitution is a task
“entirely within the province of the judiciary . . . .” Id. Thus, we review
agency action involving constitutional issues de novo. Id.
IV. Iowa’s Presumption of Parentage Statute.
Iowa’s Vital Statistics Code requires filing a certificate of birth with
the Department within seven days of a live birth occurring in the state.
Iowa Code § 144.13(1)(a). The state uses the birth certificate to establish
the fact a birth occurred, as well as to identify the child for immunization
purposes. Id. § 144.13(1)(a), (d).
For purposes of preparing a birth certificate, the Code includes a
presumption of parentage. See id. § 144.13(2). The legislature
articulated the following procedure for preparing a child’s birth
certificate, based upon the presumption of parentage:
If the mother was married at the time of conception,
birth, or at any time during the period between
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conception and birth, the name of the husband shall be
entered on the certificate as the father of the child unless
paternity has been determined otherwise by a court of
competent jurisdiction, in which case the name of the
father as determined by the court shall be entered by the
department.
Id. The statute is rebuttable under the preponderance standard “by
clear, strong and satisfactory evidence.” In re Marriage of Schneckloth,
320 N.W.2d 535, 536 (Iowa 1982). The challenging party must also
demonstrate a parental relationship with the child. Huisman v.
Miedema, 644 N.W.2d 321, 325 (Iowa 2002). Here, rebutting the
presumption is a nonissue, because Heather conceived Mackenzie using
an anonymous sperm donor.
The presumption of parentage is a fundamental legal construct
originating in common law. Michael H. v. Gerald D., 491 U.S. 110, 124,
109 S. Ct. 2333, 2343, 105 L. Ed. 2d 91, 107 (1989). A New York court
described the presumption’s development as follows:
At common law, parentage derived from two events, a child’s
birth to its “mother,” and the mother’s marriage to a man.
Children born out-of-wedlock had only one legal parent,
their birth mother. Recognizing the many advantages that
flowed to children from having two parents, legislatures
enacted filiation or paternity proceedings to confer legal
parentage on non-marital biological/genetic fathers, a status
which carries support and other obligations. Similarly,
adoption statutes established legal parentage for married
couples who were biological/genetic strangers to a child.
In re Adoption of Sebastian, 879 N.Y.S.2d 677, 679 (Sur. Ct. 2009)
(footnote and internal citations omitted).
Legislatures across the nation have adopted statutes codifying a
presumption of parentage in order to address several key social policies.1
1Numerous states have codified their presumption of parentage. Certain
characteristics allow us to classify these provisions into three separate categories.
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First, there are statutes using traditional, gendered terms (such as husband,
wife, man, woman, father, and mother), without referencing the parent as natural or
biological. See Ala. Code § 26-17-204(a)(1) (LexisNexis 2012) (“A man is presumed to be
the father of a child if . . . he and the mother of the child are married to each other and
the child is born during the marriage . . . .”); Alaska Stat. § 18.50.160(d) (2012) (“If the
mother was married at conception, during the pregnancy, or at birth, the name of the
husband shall be entered on the certificate as the father of the child . . . .”); Ariz. Rev.
Stat. Ann. § 25-814(A)(1) (2012) (“A man is presumed to be the father of the child if . . .
[h]e and the mother of the child were married at any time in the ten months
immediately preceding the birth . . . .”); Cal. Fam. Code § 7540 (West 2013) (“[T]he child
of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively
presumed to be a child of the marriage.”); Del. Code Ann. tit. 13, § 8–204(a)(1) (West
2012) (“A man is presumed to be the father of a child if . . . [h]e and the mother of the
child are married to each other and the child is born during the marriage . . . .”); Fla.
Stat. Ann. § 382.013(2)(a) (West 2013) (“If the mother is married at the time of birth, the
name of the husband shall be entered on the birth certificate as the father of the child,
unless paternity has been determined otherwise by a court of competent jurisdiction.”);
Kan. Stat. Ann. § 23-2208(a)(1) (West 2012) (“A man is presumed to be the father of a
child if . . . [t]he man and the child’s mother are, or have been, married to each other
and the child is born during the marriage . . . .”); Ky. Rev. Stat. Ann. § 406.011 (West
2012) (“A child born during lawful wedlock, or within ten (10) months thereafter, is
presumed to be the child of the husband and wife.”); La. Civ. Code Ann. art. 185 (2012)
(“The husband of the mother is presumed to be the father of a child born during the
marriage or within three hundred days from the date of the termination of the
marriage.); Md. Code Ann., Fam. Law § 5-1027(c)(1) (LexisNexis 2012) (“There is a
rebuttable presumption that the child is the legitimate child of the man to whom its
mother was married at the time of conception.”); Mass. Gen. Laws Ann. ch. 209C,
§ 6(a)(1) (West 2013) (“[A] man is presumed to be the father of a child . . . if . . . he is or
has been married to the mother and the child was born during the marriage, or within
three hundred days after the marriage was terminated by death, annulment or divorce
. . . .”); N.M. Stat. Ann. § 40-11A–204(A)(1) (2012) (“A man is presumed to be the father
of a child if . . . he and the mother of the child are married to each other and the child
is born during the marriage . . . .”); N.C. Gen. Stat. § 49-12.1 (2011) (allowing a putative
father to overcome the “presumption of legitimacy” that the father is the man to whom
the child’s mother is married); N.D. Cent. Code Ann. § 14-20-10(1)(a) (West 2011) (“A
man is presumed to be the father of a child if . . . [h]e and the mother of the child are
married to each other and the child is born during the marriage.”); Okla. Stat. Ann. tit.
10, § 7700-204(A)(1) (West 2013) (“A man is presumed to be the father of a child if . . .
[h]e and the mother of the child are married to each other and the child is born during
the marriage . . . .”); Or. Rev. Stat. Ann. § 109.070(1)(a) (West 2012) (“A man is
rebuttably presumed to be the father of a child born to a woman if he and the woman
were married to each other at the time of the child’s birth . . . .”); R.I. Gen. Laws Ann.
§ 23-3-10(d)(1) (West 2012) (“If the mother was married either at the time of conception
or birth, the name of the husband shall be entered on the certificate as the father of the
child . . . .”); S.D. Codified Laws § 25-8-57 (2012) (“Any child born in wedlock, or born
within ten months after dissolution of the marriage, is presumed legitimate to that
marriage . . . .”); Tenn. Code Ann. § 36-2-304(a)(1) (2012) (“A man is rebuttably
presumed to be the father of a child if . . . [t]he man and the child’s mother are married
or have been married to each other and the child is born during the marriage . . . .”);
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Tex. Fam. Code Ann. § 160.204(a)(1) (West 2012) (“A man is presumed to be the father
of a child if . . . he is married to the mother of the child and the child is born during the
marriage . . . .”); Wyo. Stat. Ann. § 14-2-504(a)(i) (2011) (“A man is presumed to be the
father of a child if . . . [h]e and the mother of the child are married to each other and the
child is born during the marriage . . . .”).
Second, there are code provisions applying the presumption only when the
presumed parent shares a genetic connection with the child. These statutes refer to
those eligible to be the presumed parent as the “natural” or “biological” parent. See
Colo. Rev. Stat. § 19-4-105(1)(a) (2012) (“A man is presumed to be the natural father of
a child if . . . [h]e and the child’s natural mother are or have been married to each other
and the child is born during the marriage . . . .”); Haw. Rev. Stat. § 584-4(a)(1) (2007)
(“A man is presumed to be the natural father of a child if . . . [h]e and the child’s natural
mother are or have been married to each other and the child is born during the
marriage . . . .”); 750 Ill. Comp. Stat. Ann. 45/5(a)(1) (West 2012) (“A man is presumed
to be the natural father of a child if . . . he and the child’s natural mother are or have
been married to each other . . . and the child is born or conceived during such marriage
. . . .”); Ind. Code Ann. § 31-14-7-1(1)(A) (LexisNexis 2012) (“A man is presumed to be a
child’s biological father if . . . the . . . man and the child’s biological mother are or have
been married to each other . . . .”); Mich. Comp. Laws Ann. § 700.2114(1)(a) (West 2012)
(“If a child is born or conceived during a marriage, both spouses are presumed to be the
natural parents of the child for purposes of intestate succession. A child conceived by a
married woman with the consent of her husband following utilization of assisted
reproductive technology is considered as their child for purposes of intestate
succession. Consent of the husband is presumed unless the contrary is shown by clear
and convincing evidence. If a man and a woman participated in a marriage ceremony in
apparent compliance with the law before the birth of a child, even though the attempted
marriage may be void, the child is presumed to be their child for purposes of intestate
succession.”); Minn. Stat. Ann. § 257.55(1)(a) (West 2013) (“A man is presumed to be
the biological father of a child if . . . he and the child’s biological mother are or have
been married to each other and the child is born during the marriage . . . .”); Mo. Ann.
Stat. § 210.822.1(1) (West 2013) (“A man shall be presumed to be the natural father of a
child if . . . [h]e and the child’s natural mother are or have been married to each other
and the child is born during the marriage . . . .”); Mont. Code Ann. § 40–6–105(1)(a)
(2011) (“A person is presumed to be the natural father of a child if . . . the person and
the child’s natural mother are or have been married to each other and the child is born
during the marriage . . . .”); Nev. Rev. Stat. § 126.051(1)(a) (2011) (“A man is presumed
to be the natural father of a child if . . . [h]e and the child’s natural mother are or have
been married to each other and the child is born during the marriage . . . .”); N.J. Stat.
Ann. § 9:17–43(a)(1) (West 2012) (“A man is presumed to be the biological father of a
child if . . . [h]e and the child’s biological mother are or have been married to each other
and the child is born during the marriage . . . .”); Ohio Rev. Code Ann. § 3111.03(A)(1)
(LexisNexis 2012) (“A man is presumed to be the natural father of a child [if] . . . [t]he
man and the child’s mother are or have been married to each other, and the child is
born during the marriage . . . .”); Vt. Stat. Ann. tit. 15, § 308(4) (2012) (“A person
alleged to be a parent shall be rebuttably presumed to be the natural parent of a child if
. . . the child is born while the husband and wife are legally married to each other.”);
Wis. Stat. Ann. § 891.41(1)(a) (West 2012) (“A man is presumed to be the natural father
of a child if . . . [h]e and the child’s natural mother are or have been married to each
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Specifically, “the presumption protected the legitimacy of children, which
in turn entitled them to the financial support, inheritance rights, and
filiation obligations of their parents.” Diane S. Kaplan, Why Truth Is Not
a Defense in Paternity Actions, 10 Tex. J. Women & L. 69, 70 (2000)
[hereinafter Kaplan]. It thwarted the possibility that children would
become wards of the state and promoted familial stability by preventing
“a third-party putative father from insinuating himself onto an intact
family by claiming to have sired one of the family’s children.” Id. at 70–
71; see also Michael H., 491 U.S. at 125, 109 S. Ct. at 2343, 105
L. Ed. 2d at 107. Moreover, at a time when “genetic origins were more a
matter of suspicion than science,” the presumption served judicial
efficiency by curtailing debates between parents as to the biological
nature of their parent–child relationship. Kaplan, 10 Tex. J. Women & L.
at 71.
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other and the child is conceived or born after marriage and before the granting of a
decree of legal separation, annulment or divorce between the parties.”).
Finally, there are statutes that apply or could apply in a gender-neutral manner
or to same-sex spouses. See Ark. Code Ann. § 28-9-209(a)(2) (2011) (“A child born or
conceived during a marriage is presumed to be the legitimate child of both spouses . . .
.”); D.C. Code § 16–909(a–1)(1) (2012) (“There shall be a presumption that a woman is
the mother of a child if she and the child’s mother are or have been married, or in a
domestic partnership, at the time of either conception or birth, or between conception
or birth, and the child is born during the marriage or domestic partnership . . . .”); Ga.
Code Ann. § 19-7-20(a) (West 2012) (“All children born in wedlock or within the usual
period of gestation thereafter are legitimate.”); Neb. Rev. Stat. § 42-377 (2012)
(“Children born to the parties, or to the wife, in a marriage relationship . . . shall be
legitimate . . . .”); N.Y. Dom. Rel. Law § 24(1) (McKinney 2013) (“A child heretofore or
hereafter born of parents who prior or subsequent to the birth of such child shall have
entered into a civil or religious marriage, or shall have consummated a common-law
marriage where such marriage is recognized as valid, in the manner authorized by the
law of the place where such marriage takes place, is the legitimate child of both birth
parents notwithstanding that such marriage is void or voidable or has been or shall
hereafter be annulled or judicially declared void.”); Wash. Rev. Code Ann.
§ 26.26.116(1)(a) (West 2013) (“In the context of a marriage or a domestic partnership, a
person is presumed to be the parent of a child if . . . [t]he person and the mother or
father of the child are married to each other or in a domestic partnership with each
other and the child is born during the marriage or domestic partnership . . . .”).
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Based on these social policies, “ten states and the District of
Columbia have extended (or are set to extend) the ‘marital’ parentage
presumption to same-sex couples in the formalized relationship of
marriage, civil union, or domestic partnership.” Nancy D. Polikoff, A
Mother Should Not Have to Adopt Her Own Child: Parentage Laws for
Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. C.R. &
C.L., 201, 247 (2009).
Specific to Iowa, our court long ago articulated the principal bases
for presuming a child born in wedlock is the legitimate issue of the
marital spouses:
“This rule is founded on decency, morality, and public
policy. By that rule, the child is protected in his inheritance
and safeguarded against future humiliation and shame.
Likewise, under the rule, the family relationship is kept
sacred and the peace and harmony thereof preserved. No
one, by incompetent evidence, can malign the virtue of the
mother, and no one, by such evidence, can interrupt the
harmony of the family relationship and undermine the
sanctity of the home.”
Heath v. Heath, 222 Iowa 660, 661, 269 N.W. 761, 761 (Iowa 1936)
(quoting Craven v. Selway, 216 Iowa 505, 508, 246 N.W. 821, 823 (Iowa
1933), overruled on other grounds by In re Marriage of Schneckloth, 320
N.W.2d at 537)). Taking these policies individually, we recognize the
strong stigma accompanying illegitimacy.2 The presumption counteracts
the stigma by protecting the integrity of the marital family, even when a
biological connection is not present. The presumption in Iowa even
protects the child if the parents’ marriage later terminates. Iowa Code
2The Iowa Code chapter dealing with paternity and the obligation for support
prohibits reference to illegitimacy, except in birth records and certificates or in judicial
records where paternity is in dispute. See Iowa Code § 600B.35. The statute
specifically states, “[T]he term biological shall be deemed equivalent to the term
illegitimate when referring to parentage or birth out of wedlock.” Id. (emphasis added).
 16
§ 598.31. Specifically, the legitimacy statute located in the dissolution
chapter of the Iowa Code indicates:
Children born to the parties, or to the wife, in a marriage
relationship which may be terminated or annulled pursuant
to the provisions of this chapter shall be legitimate as to both
parties, unless the court shall decree otherwise according to
the proof.
Id. (emphasis added).
Finally, the presumption in Iowa functions to ensure a child’s right
to financial support against a spouse’s claim of not being a biological
parent. See Iowa Code § 252A.3(4). The child support statute provides:
A child or children born of parents who, at any time prior or
subsequent to the birth of such child, have entered into a
civil or religious marriage ceremony, shall be deemed the
legitimate child or children of both parents, regardless of the
validity of such marriage.
Id. (emphasis added).
In Iowa, the presumption applies broadly, legitimizing children
born during marriages formally solemnized, as well as those satisfying
the requirements for common law marriage, pursuant to Iowa Code
section 595.18. See Estate of Hawk v. Lain, 329 N.W.2d 660, 663 (Iowa
1983).
V. Statutory Interpretation of Iowa Code Section 144.13(2).
The district court interpreted section 144.13(2) to require the
Department to list Melissa as Mackenzie’s second parent on the birth
certificate. We do not agree the statute can be interpreted in this way.
When construing a statute, we have stated:
The goal of statutory construction is to determine legislative
intent. We determine legislative intent from the words
chosen by the legislature, not what it should or might have
said. Absent a statutory definition or an established
meaning in the law, words in the statute are given their
ordinary and common meaning by considering the context
17
within which they are used. Under the guise of
construction, an interpreting body may not extend, enlarge
or otherwise change the meaning of a statute.
Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)
(internal citations omitted).
A specific rule of construction found in Iowa Code section 4.1
applies to statutes containing gendered terms and assists us in
ascertaining the legislature’s intent. Section 4.1 provides: “Words of one
gender include the other genders.” Iowa Code § 4.1(17). This is not,
however, a blanket rule applicable to all types of statutes. Instead,
courts construing statutes can only utilize this rule when the statute
uses a specific type of gendered language.
When the statute refers to only one gender and the gender
referenced is masculine, section 4.1(17) extends the statute to include
females. The Henry County District Court observed this legal truth in an
early decision concerning whether it should admit Arabella Mansfield to
the Iowa bar. At that time, the Iowa statute regulating the bar admission
of attorneys referred to only “white male person[s].” Iowa Code § 2700
(1860). The court relied on a prior version of section 4.1(17)3 and found
“not only by the language of the law itself, but by the demands and
necessities of the present time and occasion,” that masculine terms
include feminine words. Mary L. Clark, The Founding of the Washington
College of Law: The First Law School Established by Women for Women,
47 Am. U. L. Rev. 613, 622 n.45 (1998). As a result, Mansfield became
the first woman to secure a state law license in the United States.
Richard, Lord Acton & Patricia Nassif Acton, To Go Free: A Treasury of
Iowa’s Legal Heritage, 132 (Iowa State Univ. Press 1995). Since then, we
3Iowa Code § 29.3 (1860).
18
have applied the rule in various other contexts.4 Thus, when a statute
employs a masculine term, we will construe the scope of the statute to
include the corresponding feminine term.
However, when the statute refers to only one gender and the
gender referenced is feminine, section 4.1(17) does not extend the scope
of the statute to include males. Young v. O’Keefe, 246 Iowa 1182, 1188,
69 N.W.2d 534, 537 (1955). There, the court found that a husband
could not recover under a pension statute, because the court could not
enlarge the term “widow,” as it referred to the surviving spouse who was
eligible for survivor benefits, to include “widowers.” Id. at 1186–89, 69
N.W.2d at 537–38 (“Nowhere . . . do we find any statute or authority
permitting substitution of the masculine for the feminine.”).
Finally, when the statute employs both masculine and feminine
words, section 4.1(17) does not apply. Cf. State ex rel. Mitchell v.
McChesney, 190 Iowa 731, 733–34, 180 N.W. 857, 858 (1921). Reading
such a statute in a gender-neutral manner “would destroy or change” the
plain and unambiguous language, and would “nullif[y] the intent of the
Legislature.” Id. at 734, 180 N.W. at 858.
Iowa’s presumption of parentage statute expressly uses both
masculine and feminine words by referring to a mother, father, and
husband. See Iowa Code § 144.13(2). Accordingly, section 4.1(17) does
not apply. If we applied the rule and imposed a gender-neutral
4See, e.g., State v. Clark, 180 Iowa 477, 483, 163 N.W. 250, 253 (1917) (finding a
jury instruction on the credibility of witnesses, which referred to “him,” did not single
the defendant out from the minor female, an alleged rape victim, because the masculine
term also included females); Haerther v. Mohr, 114 Iowa 636, 636–37, 87 N.W. 692, 692
(1901) (recognizing a life insurance policy designating the deceased husband’s
beneficiaries as “his executors, administrators, or assigns” also included those of his
wife (emphasis added)).
19
interpretation of the presumption, we would destroy the legislature’s
intent to unambiguously differentiate between the roles assigned to the
two sexes. Only a male can be a husband or father. Only a female can
be a wife or mother. The legislature used plain and unambiguous
language to convey its intent. Thus, we cannot nullify the intent of the
legislature by finding otherwise through statutory construction.
Finally, the district court relied on our decision in Varnum to
compel its statutory construction analysis. At the time of enactment, the
legislature made a conscious choice to use the word “husband.” It could
have chosen to use spouse or other such language, but it did not.5
Varnum was decided thirty-nine years after the legislature enacted
section 144.13(2). See 1970 Iowa Acts ch. 1081, § 14. Hence, it is
doubtful the legislature considered same-sex marriages when it enacted
section 144.13(2). Husband was an unambiguous term at the time of
passing section 144.13(2). Therefore, we cannot use the rules of
statutory construction to extend, enlarge, or otherwise change the plain
meaning of section 144.13(2).
Accordingly, we proceed to the second step of our analysis and
determine whether the constitutional guarantees of equal protection and
due process require applying the presumption of parentage to lesbian
married couples.
VI. Constitutional Analysis.
At the district court and on appeal, the Gartners raised numerous
constitutional arguments as to why section 144.13(2) is unconstitutional,
facially and as applied. Although the district court did not decide the
case on constitutional grounds, we can consider these grounds on appeal
5Footnote one cites the variations of this statute in our sister states.
20
to affirm the trial court’s judgment, because the Gartners made the
constitutional challenges below. See Fencl v. City of Harpers Ferry, 620
N.W.2d 808, 811–12 (Iowa 2000) (“[W]e may still affirm if there is an
alternative ground, raised in the district court and urged on appeal, that
can support the court’s decision.”); Chauffeurs, Teamsters & Helpers,
Local Union No. 238 v. Iowa Civil Rights Comm’n, 394 N.W.2d 375, 378
(Iowa 1986) (indicating we may decide issues on appeal not reached by
the district court when they have been raised in the district court and
“fully briefed and argued” by the parties on appeal).
Although the parties have argued and briefed numerous
constitutional issues in both courts, we can dispose of this appeal under
the equal protection clauses of our Iowa Constitution. Thus, we need not
address the due process claim.
The first clause in article I, section 1 states: “All men and women
are, by nature, free and equal . . . .” Iowa Const. art. I, § 1. In an early
case, we determined that this section of the Iowa Constitution
guaranteed an African-American woman equal accommodations. Coger
v. Nw. Union Packet Co., 37 Iowa 145, 155–56 (1873). In Coger, we said:
These rights and privileges rest upon the equality of all
before the law, the very foundation principle of our
government. If the negro must submit to different treatment,
to accommodations inferior to those given to the white man,
when transported by public carriers, he is deprived of the
benefits of this very principle of equality. His contract with a
carrier would not secure him the same privileges and the
same rights that a like contract, made with the same party
by his white fellow citizen, would bestow upon the latter.
Id. at 153–54.
We have also used article I, section 6 to determine if a statute
violates equal protection guarantees under the state constitution. See,
e.g., Varnum, 763 N.W.2d at 878, 907 (holding Iowa’s Defense of
21
Marriage Act violates the equal protection clause of article I, section 6 of
the Iowa Constitution); Bierkamp v. Rogers, 293 N.W.2d 577, 585 (Iowa
1980) (holding the guest statue violates the equal protection clause of
article I, section 6 of the Iowa Constitution). Article I, section 6 provides:
“All laws of a general nature shall have a uniform operation; the general
assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms shall not equally belong to all
citizens.” Iowa Const. art. I, § 6.
We recently applied an equal protection analysis in Varnum. 763
N.W.2d at 878–906. There, we said that when conducting an equal
protection analysis under the Iowa Constitution, the first step is to
determine if the “laws treat all those who are similarly situated with
respect to the purposes of the law alike.” Id. at 883. Thus, our threshold
inquiry is whether the Gartners are similarly situated to married
opposite-sex couples for the purposes of applying the presumption of
parentage. If they are, we proceed to the second step and decide which
level of constitutional scrutiny to apply when conducting our review of
the challenged statute. Id. at 879–80.
A. Similarly Situated Analysis. Under the Iowa Constitution,
“the equal protection guarantee requires that laws treat all those who are
similarly situated with respect to the purposes of the law alike.” Id. at
883. Here, the Department is responsible for “install[ing], maintain[ing],
and operat[ing] the system of vital statistics throughout the state.” Iowa
Code § 144.2. Vital statistics are the “records of births, deaths, fetal
deaths, adoptions, marriages, dissolutions, annulments, and data related
thereto.” Id. § 144.1(15). The state uses birth certificates to establish
the fact a birth occurred, as well as to identify a child for immunization
purposes. Id. § 144.13(1)(a), (d). The state also uses a birth certificate to
22
verify a person’s identity and date of birth. See, e.g., Iowa Admin. Code
r. 761—601.5(1)(b) (2009) (identifying a birth certificate as one of the
documents persons applying for a new driver’s license or nonoperator’s
identification card may provide to verify their identity and birthdate).
The federal government recognizes the following purposes for birth
certificates: (1) to maintain population statistics, (2) to confirm a child’s
identity, and (3) to ensure access to federal benefits and programs. See
Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 764–67 (2008)
(discussing the federal government’s use of birth certificates).
Thus, with respect to the subject and purposes of Iowa’s marriage
laws, we find the Gartners similarly situated to married opposite-sex
couples. The Gartners are in a legally recognized marriage, just like
opposite-sex couples. The official recognition of their child as part of
their family provides a basis for identifying and verifying the birth of their
child, just as it does for opposite-sex couples. Additionally, married
lesbian couples require accurate records of their child’s birth, as do their
opposite-sex counterparts. The distinction for this purpose between
married opposite-sex couples and married lesbian couples does not exist
and cannot defeat an equal protection analysis. Therefore, with respect
to the government’s purpose of identifying a child as part of their family
and providing a basis for verifying the birth of a child, married lesbian
couples are similarly situated to spouses and parents in an opposite-sex
marriage.
B. Classification Analysis. The Gartners argue the refusal of the
Department to list both of the spouses in a lesbian marriage on the birth
certificate of a child born during marriage classifies a person based on
sex and sexual orientation under the Iowa Constitution. The Department
contends the refusal only classifies individuals based on sex.
23
Nonetheless, the Department concedes that even if we classify the refusal
on sex, an intermediate level of scrutiny applies.
In Varnum, we rejected the argument that the Defense of Marriage
Act classified individuals based on sex and analyzed the classification
based on sexual orientation. 763 N.W.2d at 885. The legislature’s
purposeful use of “husband” in section 144.13(2) does not allow married
lesbian couples to have the nonbirthing spouse’s name on the birth
certificate when one of the spouses in that relationship gives birth to the
child. Therefore, as in Varnum, the refusal to list the nonbirthing lesbian
spouse on the child’s birth certificate “differentiates implicitly on the
basis of sexual orientation.” Id.
C. Application of Judicial Scrutiny. Under Varnum, a sexual-
orientation-based classification is subject to a heightened level of
scrutiny under the Iowa Constitution. Id. at 896. Neither the Gartners
nor the Department asks us to overturn Varnum, which requires the
state to allow same-sex couples to marry. Therefore, it would be
inappropriate for this court to revisit the Varnum decision. Instead, our
task is to measure the Department’s classification against the
heightened-level-of-scrutiny standard.
Heightened scrutiny requires the State to show the statutory
classification is substantially related to an important governmental
objective. Id. Accordingly, we must evaluate whether the governmental
objectives proffered by the State are important and whether the statutory
classification substantially relates to those objectives. Id. at 897.
Our construction of the statute is the same as the Department’s.
The plain language of the statute requires the Department to put a
husband’s name on the birth certificate if a married opposite-sex couple
has a child born during the marriage and if the couple used an
24
anonymous sperm donor to conceive the child. Thus, the statute treats
married lesbian couples who conceive through artificial insemination
using an anonymous sperm donor differently than married opposite-sex
couples who conceive a child in the same manner. We must analyze this
differential treatment to determine if it is substantially related to an
important governmental objective.
In the Department’s response to the Gartners’ request for
admissions, the State admitted Iowa Code section 144.13(2) requires the
Department to put a male’s name on a child’s birth certificate if a
married opposite-sex couple has a child born during the marriage and if
the couple utilized an anonymous sperm donor to conceive the child.
However, this is not true if paternity has been determined otherwise by a
court of competent jurisdiction.
The Department enumerates three objectives supporting section
144.13(2)’s differing treatment of married, lesbian and opposite-sex
couples. Specifically, the Department argues the government has an
interest in the accuracy of birth certificates, the efficiency and
effectiveness of government administration, and the determination of
paternity.
First, we understand that ensuring the accuracy of birth records
for identification of biological parents is a laudable goal. However, the
present system does not always accurately identify the biological father.
When a married opposite-sex couple conceives a child using an
anonymous sperm donor, the child’s birth certificate reflects the male
spouse as the father, not the biological father who donated the sperm. In
that situation, the Department is not aware the couple conceived the
child by an anonymous sperm donor.
25
Furthermore, the Department claims that the only way a married
lesbian couple, who uses an anonymous sperm donor to conceive the
child, can list the nonbirthing spouse as the parent on the birth
certificate is to go through an adoption proceeding. This will not make
the birth certificate any more accurate than applying the presumption of
parentage for married lesbian couples, because the birth certificate still
will not identify the biological father. The birth records of this state do
not contain a statistical database listing the children conceived using
anonymous sperm donors. Thus, the classification is not substantially
related to the asserted governmental purpose of accuracy.
The Department next asserts the refusal to apply the presumption
of parentage to nonbirthing spouses in lesbian marriages serves
administrative efficiency and effectiveness. The Department argues that
it takes valuable resources to reissue a birth certificate when a
challenger successfully rebuts the presumption of parentage. However,
when couples use an anonymous sperm donor, there will be no rebuttal
of paternity. Moreover, even when couples conceive without using an
anonymous sperm donor, there is no showing in the record that the
presumption of paternity in opposite-sex marriages is rebutted in a
significant number of births.
The Department concedes its interest in administrative efficiency
and effectiveness is present when the Department puts the father on the
birth certificate of a child born during the marriage of an opposite-sex
couple. This efficiency is lost if the law is not applied equally to married
lesbian couples. It is more efficient for the Department to list,
presumptively, the nonbirthing spouse as the parent on the birth
certificate when the child is born, rather than to require the Department
to issue a birth certificate with only one spouse’s name on the certificate
26
and then later, after an adoption is complete, reissue the certificate.
These realities demonstrate that the disparate treatment of married
lesbian couples is less effective and efficient, and that some other
unarticulated reason, such as stereotype or prejudice, may explain the
real objective of the State.
The third proffered reason for the Department’s action is the
government’s interest in establishing paternity to ensure financial
support of the child and the fundamental legal rights of the father.
When a lesbian couple is married, it is just as important to establish who
is financially responsible for the child and the legal rights of the
nonbirthing spouse. As we said in Varnum:
[Same-sex couples] are in committed and loving
relationships, many raising families, just like heterosexual
couples. Moreover, official recognition of their status
provides an institutional basis for defining their
fundamental relational rights and responsibilities, just as it
does for heterosexual couples. Society benefits, for
example, from providing same-sex couples a stable
framework within which to raise their children and the
power to make health care and end-of-life decisions for
loved ones, just as it does when that framework is provided
for opposite-sex couples.
Id. at 883. It is important for our laws to recognize that married lesbian
couples who have children enjoy the same benefits and burdens as
married opposite-sex couples who have children. By naming the
nonbirthing spouse on the birth certificate of a married lesbian couple’s
child, the child is ensured support from that parent and the parent
establishes fundamental legal rights at the moment of birth. Therefore,
the only explanation for not listing the nonbirthing lesbian spouse on the
birth certificate is stereotype or prejudice. The exclusion of the
nonbirthing spouse on the birth certificate of a child born to a married
27
lesbian couple is not substantially related to the objective of establishing
parentage.
Thus, section 144.13(2) fails to comport with the guarantees of
equal protection under article I, sections 1 and 6 of the Iowa
Constitution. The Department has been unable to identify a
constitutionally adequate justification for refusing to list on a child’s
birth certificate the nonbirthing spouse in a lesbian marriage, when the
child was conceived using an anonymous sperm donor and was born to
the other spouse during the marriage. Thus, the language in section
144.13(2) limiting the requirement to “the name of the husband” on the
birth certificate is unconstitutional as applied to married lesbian couples
who have a child born to them during marriage.
VII. Remedy.
We find the presumption of parentage statute violates equal
protection under the Iowa Constitution as applied to married lesbian
couples. However, we are not required to strike down the statute
because our obligation is to preserve as much of a statute as possible,
within constitutional restraints. See Racing Ass’n of Cent. Iowa v.
Fitzgerald, 648 N.W.2d 555, 563 (Iowa 2002), rev’d on other grounds, 539
U.S. 103, 123 S. Ct. 2156, 156 L. Ed. 2d 97 (2003). Accordingly, instead
of striking section 144.13(2) from the Code, we will preserve it as to
married opposite-sex couples and require the Department to apply the
statute to married lesbian couples. Therefore, we affirm the district court
and order the Department to issue a birth certificate naming Melissa
Gartner as the parent of the child, Mackenzie Jean Gartner.
VIII. District Court’s Stay Order.
The Department asked the district court to stay the enforcement of
its order pending this appeal. The district court would not stay its order
28
as applied to the Gartners, but did grant the stay as to other birth
certificates the Department may issue pending the appeal of the district
court’s ruling. The district court’s rationale in issuing this stay was that
administrative problems would arise if the Department issued birth
certificates to other married lesbian couples and we subsequently
reversed the district court’s decision. These administrative problems no
longer exist because of our holding that section 144.13(2) presumptively
listing only “the name of the husband” on the birth certificate is
unconstitutional as applied to married lesbian couples who have a child
born to them during marriage. Accordingly, on remand, we order the
district court to lift the stay.
IX. Disposition.
We affirm the judgment of the district court ordering the
Department to issue a birth certificate naming Melissa Gartner as the
parent of the child, Mackenzie Jean Gartner, because section 144.13(2)
with its limited application allowing for only “the name of the husband”
to appear on the birth certificate is unconstitutional as applied to a
married lesbian couple who has a child born to them during their
marriage. We also order on remand that the district court lift the stay as
to other married lesbian couples.
Therefore, we remand the case to the district court to lift the stay.
On remand, we instruct the district court to enter an order under
17A.19(10), remanding this case to the Department and ordering it to
issue a birth certificate naming Melissa Gartner as the parent of the
child, Mackenzie Jean Gartner.
AFFIRMED AS MODIFIED.
All justices concur except Mansfield and Waterman, JJ., who
specially concur and Zager, J., who takes no part.
29
#12–0243, Gartner v. Dep’t of Pub. Health
MANSFIELD, Justice (concurring specially).
The Iowa Department of Public Health accepts the decision in
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), for purposes of this
appeal. I agree that if Varnum is the law, then Iowa Code section
144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s
request to be listed as parent on the birth certificate of the child delivered
by her same-sex spouse. Accordingly, I concur in the judgment in this
case.
Waterman, J., joins this special concurrence.