all our first case this morning is henderson versus adams fisher thank you your honor may it please the court under indiana law parental rights arise in two ways a biological relationship to the child or an adoption decree the district court in this case created a new third way marriage to the birth mother but it appears to be a right created only for female same sex couples in our view that order creates inequality that did not exist before and undermines the rights of biological fathers and their children as a matter of indiana paternity case by a genetic test and it is not overridden by a birth certificate that happens to list the husband as the father how does indiana law treat the paternity rights of sperm donors as a general matter we don't have a statute unlike many states and i think to follow the statute literally what is supposed to happen in the at the birth certificate stage is that the mother supposed to disclose that she's not married to the father of the child that's by think you know our states have adopted but indiana has not gone beyond routes ok i don't have that and i think that makes us very different from some of the other states where we have cases where there are injunctions in the wake of a purge of l that say you must treat the same sex couples the same way as the opposite sex couples in the case of a statute that creates that parent or that parental relationship which make complete sense mean it follows that that is a benefit something that accompanies the the marriage that's what you should do but our view of the indiana law on the way it's written is that it is merely a factual presumption it doesn't actually create the parental rights it is subject to being disproven by my factual proof now here we have a district court that looked at the situation of same sex couples and came to a similar conclusion that well we're going to presume a more broadly defined parental right but still subject subject that to disprove through a genetic test in a perturbing action which i think confessed i think doesn't really hold up to wear very well together because if you're assuming or presuming parental rights based on marriage it's not clear why a genetic test would be useful to override if we think that you know if we're going to stick with the indiana system where it's biology or adoption then you know the the probably to look at it is is you have a different situation for opposite sex couples and same sex couples  and there's really no reason to go with you know something that might be the birth mother's preference at the beginning rather than rather than biology so i think i want to stress here that the birth certificate does not actually establish the paternity and the person difficult question is a safe and independent issue from the parental rights that exist the parental rights either exist or they don't have the birth certificate doesn't determine the birth certificate is meant to briefly act the parental rights that exist rather than to create them and i think that is something that perhaps is you know important to bear in mind as we look at the relationship between the two in its evidence  the birth certificate well i mean it might be in sums in some circumstances evidence as to whom and you know under what circumstances it cannot for example in a paternity action override the genetic test which is the critical piece of the paternity action or right my point is only that it doesn't create parental rights evidence of yeah i think i think that's right and i think that's right and in the for especially if we're talking about in any sort of ordinary everyday context somebody would look at that instant probably think that that's you know but it's but in many circumstances if it is based on a mistaken understand mistake of fact you know that goes undetected that is not itself you know creating the parental rights is for sure it's what's the state of the birth certificate form today is of is there been a change well there are there has been up to a point the system itself the official system created by the department of health is an online system that is in the midst of being overhauled and in light of the injunction will eventually refer to parent one and parent two but if it says right now because it would cause be too expensive to just change this one piece in advance it's still says mother and father on the front end but the information gets put in for both women in this case of  few men who are married and then birth certificate that comes out says the names of the parents parent one and parent two it doesn't say mother and father so that's the way it would come out today right right that's in light of the injunction that's right in the case of an adoption original birth certificate whether in and out of wedlock or in wedlock birth situation is retained in that system right but a second birth certificate is issued in the name of the it out of here that's right that's right the record of biological parentage is retained is retained is retained and what's the rationale for that well i think the right the basic rationale is to keep a record of you know if there's a need for it for health history or medical history for genetic history i think it's the understanding as it's sort of like getting a good practice to keep the basic information about the origins of the childhood is that is born as opposed to just pretending that it didn't  happen most of those states do it that way as well because of adoption or you know i can't say i'm aware of it but i think that there is a general understanding that it that keeping some sense of medical history available in this is is appropriate me a police record when a birth mother delivers a child conceived by artificial insemination and she is married to a man her husband is presumed to be the parent of the child and he is identified on the birth certificate as the parent of the child even though this case is a serious dispute about what indiana law actually provides really why should we accept your view of how indiana system works over the state's own view  question mr mr fisher just said and his brief spends a great deal of time saying that when a child is born by artificial insemination in a marriage the mother is supposed to report he's supposed to state that the husband is not the father and after that if the identity of the sperm donor or it is revealed that person is listed on the birth certificate right the district judge said as i understand it didn't disagree with indiana that that's how the system is supposed to work the district judge said many mothers will lie in response to that question and identify the husband as the father even though the husband didn't supply the sperm now that led me to think that your argument is that a state law becomes unconstitutional because people subject to the state law don't follow it which would be very difficult position to take your own or in this particular case be i'm not interested in this particular i came here i'm interested in al the state statute is supposed to work this way to state statute is supposed to work is that we believe is that working the way it is now when a child is born to a man and woman and he is presumed to be the parent of the child what we're saying then is we want to logically extend that given the advances in science in our society so  it sounds like we just have a fundamental dispute about what the indiana wall now provides i don't think there's a fundamental dispute about that you know under the indiana in the end and you are saying the opposite of mr fischer about what's supposed to happen in a marriage in a case of a married couple where the child is conceived by artificial insemination your daughter we need if you don't agree about that you're having a disagreement about how state law is supposed to operate sense that we are but what we're also saying is that indiana knows this is happening and it allows it to have you know it well then then we're in as i understand the law saying that something violates the equal protection clause requires disparate intent by the state it is not the same thing as saying a state knows that somebody else is violating the law and therefore the law becomes marriage that are accorded to a married man and woman must also be a source of paternity presumption it's physically impossible in a same sex marriage but what that presumption statute does is it presumes something that is physically impossible because  so what you're asking for is a retest and mission of parenthood you're not asking for it i mean the state cannot accord same sex couples the benefit of a paternity presumption it's physically impossible to write your own so you're asking for a redefinition of one of the turn parent under state law when you haven't challenge that statute as i understand it that's your  intercourse then that would be the case but that is not under over the fell under baskin hundred eleven undercard now were parenthood and families are no longer defined by simply having a married man and woman in their children that's ok rights cases those weren't parenthood cases but married but parenthood is part and parcel let me give you another marriage case the parties aren't covered you have a male male marriage in india because hires a surrogate mother one of the parents one of the members of the marriage donate sperm and a child is born to the surrogate mother who should be on the birth certificate you know under under india law you can't enter a contract for surrogacy you know establish paternity prior to the child marry but the second husband i don't understand why on your view the answer isn't father number one and father number two because in june members of the married couple because indian under indiana law father number two  discrimination and you're now saying that there must be sex discrimination in the female female in marriage the right answer is mother number one and mother number two in the male male marriage the right answer on the birth certificate is surrogate mother sperm donor or followed by adoption on your view doesn't there have to be a dedicated treatment of the male male marriage and the female female marriage your honor possibly yes but not under the arguments that we're making regarding this so we can't we can't ignore the logical implications of your argument since you seem to want to know your honor under the presumption statute if the requirement is the man must be married to the birth mother that is the statute so what in when you have two men the man who are married one of them cannot be married to the birth mother now if someone wants to challenge that understands and give due process or something else that is a different argument than what we have here today citizenship as following biological parent so that a birth certificate revealing that mother and any german citizen confers german citizenship on the child your view apparently extinguishes citizenship by requiring a mis recording of who the father rings connect the right you're right you're saying know in the united states the norm is that anybody born in the united states is a u s citizen most countries in the world do not follow that rule they don't treat birth within the territory as a grant or citizenship they treat descent as the grant of citizenship so the correctly recording who the parents are is essential to determining the citizenship of the child that's your view seems to be that it is unconstitutional for indiana to correctly record the parent and therefore the citizenship of the child that's a very big loss for a child no you don't and that is not our view in these cases where you have artificial insemination distinguish what's on a birth certificate if it's supposed to be recording facts or biology with facts about parental rights who has parental rights in the trial who has parental duties and the right these are logically separate things and one of the worries here is that this case seems to be an attempt to blend the two but blending them may be very hard in circumstances where you've got a male male couple or where you have one of whom has a foreign citizenship your honor first of all first if it is legal document it is not a medical document you or is it intended to be a medical document it is a legal document that establishes legal relationships secondly who knows an irreconcilable disagreement about how the indiana system is supposed to work in terms of sperm donor agreements your honor we've cited the cases in there where they are recognized the one case cited by mr fisher was a case where they had a  donor agreement that was covered why one i have one more question does anything in this case depend on conception being via artificial insemination rather than sexual intercourse for the  are by artificial when you can does anything marjorie clee depend on it you have a female female marriage and one of them conceived the child by a sexual intercourse what is supposed to be on the birth certificate on your view in that particular case she would say no because and her husband will go the birth certificate whoever she doesn't have a husband she has a wife to her former husband because he is the father child now if she wants to say i don't understand why you don't agree with mr conceive a child via artificial insemination with an anonymous sperm donor or even a no in sperm donor but if you have and you can have a contract that says that he is not to go on the birth certificate in which the change mr fisher speaks about the changes coming about as a result of the into what does that do if if that is in fact in place where it's going to have mother one and mother two what does that do to your case create parental rights but what it does do is it allows you to go out and operate in the world and to raise your child and make decisions regarding that child by showing that burst or to fit the presumption is maybe a presumption of an evidentiary presumption but it is also a substantive rule of law because that's what it does is it allows who's ever named on that to make these decisions regarding children otherwise you have to carry around with you a pair of attorney and other documents so that you can make these decisions you have to carry or you have to carry around also the agreement from the sperm donor for comes with the guillotine as well as the birth certificate in the loop for you know you don't try to well hans how can you register at a school for your after school sports you have to show them a person of the get or getting a passport the other document showing the confidentiality is one that you would keep at home and keep it in a safe place if you in case it's ever challenged or you ever need it but it's not something voluntarily consent to the conception of a child to be artificial insemination both of them are the legal parents of the child and by the way in less than the husband was listed on the birth certificate february of this year the indiana appellate court in the decision applied the same rule to two legally joined women who also agree to conceive a child by artificial insemination holding them they both are the legal parents of the child in you are asked to would like to state that when we were here before this court a an incident but marriage and that's in their brief a document thirty four page fifteen and fourteen dash twenty three eighty six now we know that these statutes are our incidence of marriage because the first thing that you have to do is you have to actual terms of the statute it's a paternity presumption well and i guess that you're wrong and that goes to her which is what i have been trying to say is that the notion i mean paternity in compass is i mean you waive the word father you say the word paternity it means a biological relationship because that's what this that's what the state considers that is heritage biological parent or adoptive parent and what we are saying your honor is that it is now after the advent means when the child was born the parent who was there they're just now saying ok for purposes of this divorce we're going to acknowledge what previously happened i mean parenthood now is much more than being a mother and a father we have two mothers we have two fathers marriage is much more than just being a man and woman indiana has no artificial insemination statutes it has nothing but this general presumption of if if that's the argument you wish to make you have to take it to the state legislature and get them to amend the definition of parent what is right now it's biological parents age in other words the biological mother or father that's specifically what the statute says or adoptive parents what your honor in the constitution requires indiana to change its definition of parenthood from the biological one goes well beyond the marriage cases but you on your question was should we leave this to the legislature what i'm telling you is they had the opportunity in two thousand and four they were is no longer defined by people then you have to take that's a policy argument to take to the legislature and which i think i've answered that question in so why are our asking is that i see my time is up our asking is that our clients if the state's going to extend protections to children conceive have much to add just a couple of quick points i think on the issue of the live in case garden our again we agree that that's about equity and really nothing more and is if anything demonstrates the kind of equality approach by the indian courts when it comes to addressing   with for the affordability of don't regret means we have two cases that don't really complete the picture for us one is from indiana court of appeals and it even that cases seems to say that there are some times when it might be enforceable sometimes but it may not be  supreme court hasn't reviewed that issue directly so i don't think we have any definitive understanding and the rights at issue here of the rights of the child relate to support from the biological parents indeed in there's a statute that says that that the parents cannot disclaim in that sense they can't they cannot waive those rights and the constitutional right to raise a child is also based on biological parentage it is it is it is we agree and the supreme court has acknowledge that wolf you know from both directions as as you as you state so there could be many circumstances where to go in that direction would undermine those rights and create other constitutional problems so that some i think that that's really all i have