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Torres v. Seemeyer

United States District Court, W.D. Wisconsin

September 14, 2016

CHELSEA TORRES and JESSAMY TORRES, individually and as next friends and parents of A.T., a minor child, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
LINDA SEEMEYER, in her official capacity as Secretary of the State of Wisconsin Department of Health Services, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         Plaintiffs Chelsea Torres, Jessamy Torres and A.T. are a family who live in Madison, Wisconsin. In 2012, Chelsea and Jessamy married in New York, where same-sex marriage was legal; in 2014, they conceived A.T. through artificial insemination, using an anonymous sperm donor; in 2015, after same-sex marriage became legal in Wisconsin, Chelsea gave birth to A.T. Although Jessamy and Chelsea requested a birth certificate listing both of them as parents, the Wisconsin Department of Health Services issued a certificate that named Chelsea as the sole parent.

         In this case, plaintiffs contend that the department's refusal to issue a two-parent birth certificate violates both the equal protection clause and the due process clause of the Fourteenth Amendment. In an order dated April 4, 2016, dkt. #65, I certified a class of families like plaintiffs, who conceived a child through artificial insemination but had not complied with Wis.Stat. § 891.40(1), which states that a couple conceiving through artificial insemination cannot receive a two-parent birth certificate unless the procedure is performed “under the supervision of a licensed physician” and the spouse not being inseminated gives written consent for the procedure.

         The parties have filed cross motions for summary judgment, dkt. ##71 and 75, which are ready for review. Not surprisingly, the department's asserted justification for denying plaintiffs a two-parent birth certificate is that Jessamy did not provide written consent for the insemination, as required by Wis.Stat. § 891.40(1). However, the undisputed facts show that the department was not enforcing § 891.40(1) against different-sex married couples until May 2, 2016, when the department changed the forms that parents of newborn babies must complete. Because it is well established that discriminatory enforcement can violate the equal protection clause and the department does not offer any justification for its discriminatory treatment, I am granting plaintiffs' motion for summary judgment and denying the department's motion with respect to class members who requested a two-parent birth certificate before May 2, 2016. However, because plaintiffs have not shown that the discriminatory enforcement continued after May 2, 2016, I am denying plaintiffs' summary judgment motion and granting the department's motion with respect to class members who requested a two-parent birth certificate on or after May 2, 2016.

         The scope of this order is limited to what is necessary to provide relief to the named plaintiffs and those similarly situated to them, namely, female married couples who conceived a child through artificial insemination but did not comply with the statutory requirements for obtaining a two-parent birth certificate. Obviously, this decision does not remedy any discrimination suffered by other married same-sex couples who have not received a two-parent birth certificate. However, the decision does not preclude those other couples from seeking relief from the courts. If the department wishes to avoid more litigation, it should consider taking more proactive steps to prevent discrimination from occurring.

         For example, although the department concedes that female married couples who conceive a child through artificial insemination should have the same right to a two-parent birth certificate as a different-sex couple, the department has not identified any official steps it has taken to implement that concession. It has not updated its forms to be inclusive of same-sex couples and it has not provided any instructions to hospital staff regarding what they should do when a mother identifies her female spouse as a second parent on a birth certificate form. In fact, the department has failed to identify any internal policies or memoranda instructing department staff what to do when they receive a request for a birth certificate from two parents of the same sex. Thus, a parent completing the form, a hospital staff member submitting the information to the department or even a department employee reviewing the information might have no way of knowing that the department's position has changed. Rather, if one were relying solely on the materials provided by the department, it would be reasonable to assume that the department will not provide same-sex couples a two-parent birth certificate under any circumstances in the absence of a court order. Even a department employee could be uncertain regarding how to handle birth certificates for children of same-sex couples.

         The department identifies no reason why it has failed to make the changes that even it acknowledges are necessary to comply with federal law. Same-sex marriage has been legal in Wisconsin since 2014, so there is little excuse for the department to be dragging its feet so long. If the department's inaction continues, it seems inevitable that more lawsuits will follow, bringing along with them the potential for large bills for attorney fees and even damage awards. The department should act now to prevent these lawsuits, minimize confusion and provide the equal treatment that same-sex couples are entitled to receive under the law.

         From the parties' proposed findings of fact and the record, I find that the following facts are undisputed.

         UNDISPUTED FACTS

         A. Named Plaintiffs

         Plaintiff Chelsea Torres and Jessamy Torres were married in New York in 2012. In 2013, Chelsea and Jessamy decided to have a child through artificial insemination, using a fertility clinic and an anonymous sperm donor. They also decided that Chelsea would be the birth mother. Although both Chelsea and Jessamy agreed to the procedure, Jessamy does not recall signing a written consent. A physician supervised the procedure. In March 2015, in Madison, Wisconsin, Chelsea gave birth to a child, A.T.

         On or around March 14, 2015, while at the hospital, Chelsea and Jessamy filled out a Wisconsin Department of Health Services form for the purpose of obtaining a birth certificate for A.T. On the form, Chelsea and Jessamy indicated that they were married and that both were parents of A.T. They supplied the requested information for both parents. However, hospital personnel did not enter Jessamy's information into the State Vital Records Information Service, so plaintiffs received a birth certificate listing Chelsea as the sole parent.

         In a letter dated April 24, 2015, counsel for plaintiffs asked the Department of Health Services to issue a birth certificate that identified both Chelsea and Jessamy as parents. In a letter dated May 1, 2015, counsel for the department stated that the “Vital Records Office . . . is evaluating the request and will respond when that evaluation is complete.” Plaintiffs have not yet received a birth certificate with both Chelsea and Jessamy identified as parents.

         B. Policies and Procedures of the Wisconsin Department of Health Services

         1. Before May 2, 2016

         The Department of Health Services publishes a document called “Birth Certificate Worksheet.” When a child is born in Wisconsin, the child's birth mother or a “certifier” must complete the worksheet to obtain a birth certificate. Hospital staff enter that information into the State Vital Records Information Service. The department then uses that information to create a birth certificate. The department does not investigate the accuracy of the information.

         Before May 2, 2016, all references on the worksheet to the mother's spouse used the term “husband” and all references to a second parent used the word “father.” If the mother was married, information about the husband had to be included on the form, even if he was not the child's genetic parent. Even after same-sex marriage became legal in Wisconsin, the department did not change the term “husband” to “spouse.” There are no instructions on the form that information about a same-sex spouse should be provided in the boxes related to the “husband.”

         The department publishes guidance for parents and hospital staff regarding how to complete the birth certificate worksheet. None of these publications address the question of how a mother with a female spouse should complete the form. Rather, all ...


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