The opinions expressed in this article are those of the author.
By Travis Van Winkle, Van Winkle Legal
The U.S. Supreme Court handed down some major decisions over the last few weeks. Those decisions have angered some and pleased others. The overturning of Roe v. Wade, will, almost certainly, impact the practice of family law. That impact may come in the way of additional paternity and divorce cases. We may see an increase in CHINS and TPR cases. There will also be an increase in adoption cases and perhaps not just in the traditional sense.
Since the Dobbs v. Jackson Women’s Health Organization decision, my office has been bombarded with calls from same-sex married women concerned about possible implications for the status of their marriage and for their children. The concern being expressed is one of whether an adoption should be done as a precautionary measure. The fear, I am hearing, is that SCOTUS, as referenced by Justice Thomas in his concurring opinion in Dobbs, may end up overturning Obergefell (and others).
The question then becomes what impact this would have on the parental status of the married women who used artificial insemination to conceive. At this time, Indiana is required to list both women as parents on the birth certificate of a child conceived through artificial insemination. This was the holding of the United States Court of Appeals for the Seventh Circuit in Henderson v. Box. In particular, the Court ordered the state to treat same-sex and different-sex couples equally, noting that Obergefell v. Hodges mandates equal treatment. The 7th Circuit also noted the requirement by SCOTUS in Pavan v. Smith for states to place same-sex spouses on birth certificates according to the same procedures available to different-sex spouses.
I have, despite the Obergefell, Henderson and Pavan decisions, continued to advocate for adoption of children born to same-sex married women through artificial insemination. The legislature could pass laws to negate Henderson, Pavan and others. SCOTUS could overturn some of these decisions as well. Such changes could leave these families in uncharted territory with no clear answer as to the impact on parentage of the children born through insemination to married same-sex female couples.
Indiana has long recognized the right of same-sex partners, regardless of their marital status, to adopt a child through either a second parent or stepparent adoption. This, as our Courts have noted, brings about the result of making what was already a family a legal family. In turn, if Obergefell is overturned (the ripple effect thereof would impact cases like Henderson and Pavan) and/or legislation is passed impacting the State’s obligation to list both mothers on the birth certificate, these families can remain families because of the adoption.
Given the decision to reverse Roe and the uncertain future of cases like Obergefell, Pavan, Griswold, and Lawrence, family law practitioners should raise this concern with our same-sex married female clients. In doing so, we are offering solutions to help them resist the undoing of their status as parents. We are also making sure we advance the State’s long held interest in preserving/protecting families as set in cases like In Re the Adoption of K.S.P., In Re Infant Girl W., and In Re the Adoption of M.M.G.C. While we are at it, we may want to make sure these clients have solid estate planning, powers of attorney and healthcare representative designations in place and that the understand the implications of how they hold title to real estate, bank accounts and other assets.
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