Same-sex couples sue state over birth certificates

Jackie Phillips-Stackman watched nurses whisk away her newborn daughter to the neonatal intensive care unit while her wife, blood pressure tanking, hemorrhaged on the c-section operating table.

Baby Lola Jean had been a long time in the making. Years ago, Phillips-Stackman had harvested her eggs and found a donor to create embryos — before she ever met Lisa, before Lisa offered to carry their child, before they got married.

And then during Lisa's pregnancy, they found out Lola had fluid in her brain and a rare chromosome deletion. With Lisa encountering complications, doctors decided to deliver Lola early.

But if anything happened to either Lola or Lisa, Jackie would be helpless. Because the state of Indiana wasn't legally recognizing her as Lola's mother.

Now she is seeking to change that.

Along with another Central Indiana couple, the Phillips-Stackmans filed a lawsuit Monday in the U.S. Southern District of Indiana in Indianapolis against the state and local health departments to have both same-sex parents named on their children's birth certificates.

The state only lists Lisa as Lola's mother, because Lisa carried and delivered her. In order for Jackie to legally be Lola's mom, she would have to adopt her — even though Lola is biologically Jackie's child.

"There's just no space for two moms," Jackie Phillips-Stackman, 37, said. "This is all new ground that our state is having to travel."

Earlier this year, several Indiana families, led by Ashlee and Ruby Henderson of Lafayette, also filed a similar lawsuit against the state and county health departments. One of the attorneys on both cases, Karen Celestino-Horseman, said this is an issue created by part of the law not catching up to the recent legalization of same-sex marriages.

Birth certificates, the lawsuits allege, continue to treat marriage as being between a man and a woman, without giving equal recognition to married same-sex couples.

If a mother is married to a man, he is presumed to be the child's father — even in cases of artificial insemination. Or, a mother can provide other paternity information.

But if a mother is married to a woman, the female spouse receives no legal status in relation to the child.

"The thought of having to adopt my own child just rubbed me wrong, especially with all the planning we had done," Jackie Phillips-Stackman said. "It's offensive."

A birth certificate, the lawsuits said, is a vital record that is often necessary for parents to register a child in school, make medical decisions, line up Social Security and inheritance benefits, or list a child as a dependent on insurance and income taxes.

For the Phillips-Stackmans, there were no issues with the hospital or insurance recognizing Jackie as a mother. But since Jackie is an Indianapolis Metropolitan Police Department detective, she said the omission on the birth certificate could cause other problems.

If their parents are killed in the line of duty, children of police officers can receive college tuition assistance and a monetary death benefit.

In addition, it's yet to be seen to what extent Lola's chromosome syndrome could cause any physical or developmental delays. After having a stent placed in her head shortly after birth, Lola is healthy at six weeks old, her parents reported.

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Several other states have recently grappled with this same issue. In Nebraska, for example, the state agreed to change its birth certificate policies after couples brought a lawsuit, according to news reports. In Utah and Arkansas, judges ruled in favor of married same-sex couples.

The Indiana State Department of Health declined to comment on the pending litigation.

Indiana Attorney General Greg Zoeller, whose office represents state agencies in court, said in a statement: “There are many legal unknowns following the U.S. Supreme Court's decision of June striking down marriage statutes in many states. It may take time for the lower courts to resolve any remaining issues surrounding the complex, interwoven system of laws involving birth records, divorce and parental rights, property and tax laws. Challenges to Indiana statutes require the Attorney General’s Office as state government’s lawyer to defend the laws passed by the people’s elected representatives in the Legislature.”

For McCordsville couple Crystal and Noell Allen, who are also on Monday's lawsuit, having both women's names recorded on their twin babies' birth certificates is an emotional plea.

Ashton and Alivea Allen were born and lost Nov. 21, too many weeks too early.

"They were perfectly made — just tiny," Crystal Allen said. "They had all their fingers and all their toes and beautiful faces, and it was amazing to be able to hold them for a few minutes before they passed away."

At 19 weeks, Allen had begun to feel a different kind of pregnancy pain than she was used to. Three days later, she was bleeding. At the hospital, the doctors told her she was fully dilated, and she started having contractions.

She knew the babies weren't developed enough to survive outside the womb.

But the contractions stopped, she said, "and then there was hope."

Allen and her wife, Noell, were planning everything around their new arrivals — their careers, their finances, their vacations. They told their 5-year-old daughter, Elon, that she would be a big sister to two baby siblings.

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But a week later, 35-year-old Crystal Allen developed an infection. The twins arrived, too little to live.

At sleepovers while her parents were in the hospital, Elon called to ask, how are the baby twins doing? How's mama doing?

Crystal and Noell had to explain that Ashton and Alivea were now "our angel babies."

"You mean they're not coming here? I won't get to see them?" Elon asked.

"We had to break her heart, and she cried, because she knew what that meant," Noell Allen said.

In the hospital, a staff member asked Crystal Allen to confirm the names of the babies and provide her information.

As the woman turned to leave, Allen asked: "Well, do you need Noell's information as well?"

No, she said she was told, you would have to go through the courts for that.

"What do you mean? She's my wife, the other parent of my babies," Allen said. "Why would we have to go to court, now that our marriage is recognized by the state of Indiana?"

On the twins' death certificates, both Crystal and Noell Allen are listed as parents. All they want, the couple said, is to have both of their names on their children's birth certificates, too.

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Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.