Arkansas became the state with no births for a few hours Friday.
Well, on paper, anyway.
A judge temporarily suspended the state's process for recording births, most commonly referred to as a birth certificate. That process had been deemed legally insufficient by the U.S. Supreme Court.
Why? It goes back to the summer of 2015, when the U.S. Supreme Court redefined marriage on a national scale. Until then, marriage from a federal perspective had largely been a union between a man and a woman. That June, marriage became legal across the nation for same-sex couples.
That legal case, however, didn't involve birth certificates. It just revealed the inadequacies of Arkansas' system, which remained focused on a woman giving birth (that hasn't changed) and presumptions about who the child's father was. Every birth certificate named the birth mother and, if desired, whomever she identified as the father, unless proven otherwise.
But when it came to a birth involving two women in a relationship, the state refused to designate anyone other than the birth mother as a parent on birth certificates. And the Legislature, where such things are generally clarified, didn't do anything in its last session to fix the situation. Which politicians in a Republican-majority Legislature of a conservative state wanted to lead the charge for parental recognition for lesbian couples on the state's birth certificates?
So the state's birth certificates remained unchanged as a result of political inertia. Until Friday, when Gov. Asa Hutchinson was forced by the judge's suspension to order modifications. He instructed the state's Division of Vital Records to include female spouses of women who give birth to be listed on a child's birth certificate on the same terms as male spouses of women who give birth. That might take the form of "Parent 1" and "Parent 2."
Really, Arkansas birth certificates haven't demanded strict accuracy when it comes to parentage for a long time. Practically speaking, being identified as a father on a birth certificate does not prove someone is the biological father. It just proves that the child's mother agreed to name that man as the father. In most cases, that's likely true. But there's little doubt a few fathers have been identified when the biological connections aren't there.
But Arkansas nonetheless got caught up in a tizzy at the idea of listing a female spouse on a birth certificates, one more form of resistance to the march of gay rights.
A birth certificate ought to be a clear, fact-based document. The judicial system rendered Arkansas' birth certificate approach invalid because it treated spouses of birth mothers differently based on gender. In truth, in the context of this legal document, no man listed as the (obviously) non-birthing parent of a child has any more claim to parentage than a "Parent 2" female listed on the form would.
The problem was, the state acted as though there was some legal distinction. Unless the state got into the paternity-proving business, there isn't.
So all this isn't really rocket science. Arkansas' birth certificates have never been about proving a biological connection to anyone but the birthing mother. The process would need something like DNA testing to establish one's claim to fatherhood. As long as it doesn't, a birth certificate shouldn't be used to exclude a person who, by all other measures beyond contribution of biological material, is serving as a child's parent.
Presumption of paternity has been Arkansas' tradition, but it's impossible to extend that to same-sex couples. So, Arkansas has to make a decision. If Arkansas asserts that biological parentage only should be reflected on birth certificates, the identification of a man as father is going to have to be proven by more than just the mother's word. Is the state going to crank up DNA testing to establish that? Imagine, sadly, how many surprises might be revealed by that process.
The answer isn't to maintain Arkansas' tradition of unproven parentage, but to treat facts as facts.
Given the legalization by the U.S. Supreme Court of same-sex marriage, it's vital that children in families of those same-sex couples have the same legal protections as so-called traditional marriages. That includes all those powers of parenting a birth certificate protects, such as ability to consent to medical care and enrolling children in schools, or traveling abroad with the child.
Birth certificates should not be used to camouflage a child's biological foundations any more than they should be used to deny a parent -- biological or not -- a claim to that vital role in some official capacity.
Birth certificates shouldn't be weapons in the battle over traditional values or chalking up a victory for LGBTQ forces.
The answer is not continuation of a flawed system, but a system that delivers an accurate reflection of known biological connections and that provides people fulfilling the duties of parenthood every bit of authority a parent needs to raise a child.
Commentary on 12/11/2017