It has long been the law in Florida that when a child is born during an intact marriage between a man and a woman, the husband shall be placed on the birth certificate. Generally, this is the case even if the husband is not the biological father of the child; the right of the child to be considered “legitimate” is so strong that it does not matter whether there is an actual genetic connection between the child and the father.
Now that Florida’s ban on same-sex marriage has been declared unconstitutional by a federal judge and marriage licenses are being provided to same-sex couples, will a hospital put a woman on a birth certificate if her wife gives birth?
As of last week, the answer is no. Hospitals throughout Florida go by the procedures set forth by the State’s Office of Vital Statistics, whose counsel is reviewing the recent court rulings and determining how to apply them to birth certificates.
Florida Statutes Section 382.013(2)(a) states, “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.”
Currently, Vital Statistics is interpreting that section quite literally: if there is no husband, than only one parent will be placed on the birth certificate. This interpretation ignores relevant case law over the past few years.
One such relevant Florida Supreme Court case is DMT v. TMH, 129 So. 3d 320 (Fla. 2013), which stated that, for purposes of reproductive technology, there was no rational basis for limited commissioning couples to “intended mother and father.” Rather, the pertinent statute should be interpreted to permit same-sex couples to engage in surrogacy so that they, too, may be parents.
Vital Statistics is likely going to change their interpretation of who may go on birth certificates after the review from their attorneys, but that may take months.
In the meantime, LGBT parents still have the option of getting a court order requiring Vital Statistics to put both parents name on the birth certificate, whether though an adoption proceeding or a declaratory proceeding.