The Birth Certificate Solution: Ensuring the Interstate Recognition of Same-Sex Parentage

In the celebrated decision of Obergefell v. Hodges, the Supreme Court held that same‐sex couples have a constitutional right to marry that cannot be infringed by state law bans on marriage equality. Post‐Obergefell, states around the country are grappling with what the mandate means for parentage and how their family law regimes should be adjusted in light of the increasing diversity in today’s family structures. Variation in whether states presume both partners in a same‐sex relationship to be the legal parents of their child and, if not, whether a second‐parent adoption is available to establish the parentage of the nonbiological parent implicates significant uncertainty for these couples. Entitling the parentage of same‐sex couples as reflected in the birth certificate of the child to interstate recognition on the basis that the birth certificate is a “record” within the ambit of the Full Faith and Credit Clause would provide greater protection of their legal status.

The birth certificate solution is both easily implementable and doctrinally supportable in light of various principles reflected in the Supreme Court’s recent family law jurisprudence. The interests at stake are significant for both the same‐sex couple and their child, and entitling the parentage listed in the birth certificate to full faith and credit recognition would provide greater immediate protection to the legal status of these couples.

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