Heather Martin Gartner and Melissa Gartner, Individually and as Next Friends of Mackenzie Jean Gartner, a Minor Child v. Iowa Department of Public Health

IN THE SUPREME COURT OF IOWA

No. 12–0243

Filed May 3, 2013

HEATHER MARTIN GARTNER and MELISSA GARTNER, Individually

and as Next Friends of MACKENZIE JEAN GARTNER, a Minor Child,

Appellees,

vs.

IOWA DEPARTMENT OF PUBLIC HEALTH,

Appellant.

Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.

The State appeals from a district court order requiring the Iowa

Department of Public Health to issue a birth certificate naming the

nonbirthing spouse in a lesbian marriage as the parent of a child born to

the couple while married. AFFIRMED AS MODIFIED.

Thomas J. Miller, Attorney General, Julie F. Pottorff, Deputy

Attorney General, and Heather L. Adams, Assistant Attorney General, for

appellant.

Camilla B. Taylor and Kenneth D. Upton, Jr., Chicago, Illinois, and

Sharon K. Malheiro of Davis, Brown, Koehn, Shors & Roberts, P.C.,

Des Moines, for appellees.

Timm W. Reid, Des Moines, and Byron J. Babione, Scottsdale,

Arizona, for amicus curiae Iowa Family Policy Center.

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Lance W. Lange and Nicole N. Nayima of Faegre Baker Daniels LLP,

Des Moines, and Michael A. Ponto of Faegre Baker Daniels LLP,

Minneapolis, Minnesota, for amicus curiae National Association of Social

Workers, Iowa Chapter.

Amanda C. Goad, New York, New York, and Randall C. Wilson of

ACLU of Iowa Foundation, Inc., Des Moines, for amici curiae American

Civil Liberties Union Foundation and American Civil Liberties Union of

Iowa.

Catherine C. Dietz-Kilen and Earl B. Kavanaugh of Harrison &

Dietz-Kilen, P.L.C., Des Moines, and Shannon P. Minter, Catherine P.

Sakimura, and Angela K. Perone, San Francisco, California, for amici

curiae professors of law.

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WIGGINS, Justice.

In this appeal, we must decide whether Iowa Code section

144.13(2) (2011) requires the Iowa Department of Public Health to list as

a parent on a child’s birth certificate the nonbirthing spouse in a lesbian

marriage when the child was born to one of the spouses during the

couple’s marriage. The district court interpreted the statute to require

the Department to issue a birth certificate listing the spouse as the

child’s parent. The district court also stayed its ruling as to any other

birth certificates the Department may issue to married lesbian couples

pending the appeal of the district court’s ruling.

On appeal, we conclude that we cannot interpret the statute in the

same manner as the district court. However, we do find section

144.13(2) as applied to married lesbian couples violates the equal

protection clauses found in article I, sections 1 and 6 of the Iowa

Constitution. Accordingly, the Department must presumptively list on a

child’s birth certificate the nonbirthing spouse in a lesbian marriage

when the child was born to one of the spouses during their marriage.

Consequently, we affirm the judgment of the district court ordering the

Department to issue a birth certificate naming both spouses as parents.

Therefore, we remand the case to the district court, order the district

court to lift the stay, and order the district court to remand the case to

the Department for issuance of a birth certificate also listing the

nonbirthing spouse as the child’s parent.

I. Background Facts and Proceedings.

A. The Gartner Family. Melissa and Heather Gartner are a

lesbian couple. They have been in a loving, committed relationship since

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December 2003. On March 18, 2006, they participated in a commitment

ceremony with family and friends.

The couple dreamed of the day they would become parents. Acting

on that desire, they began planning their family. The couple agreed

Heather would serve as the biological mother, but both would act as

equal parents to their children. Melissa decided to stay home to be the

children’s primary caregiver, while Heather worked outside the home.

Heather conceived their first child by anonymous donor

insemination. Melissa participated in every step of Heather’s pregnancy,

which included choosing the anonymous sperm donor. Melissa was

present for the birth of the couple’s first child.

Because Melissa and Heather were not legally married at the time

of the first child’s birth, the couple went through formal adoption

procedures to ensure Melissa’s name was on the child’s birth certificate.

The Gartners successfully navigated the adoption process after both

Melissa and Heather underwent background checks for criminal

misconduct and sexual abuse. Heather characterized the adoption

process as expensive, intrusive, and laborious. Once the couple finalized

the adoption, the Department issued the child’s birth certificate, which

named both Heather and Melissa as parents.

Two years later, in April 2009, we decided Varnum v. Brien, 763

N.W.2d 862 (Iowa 2009), which held Iowa’s Defense of Marriage Act

unconstitutional. Thereafter, the state began solemnizing same-sex

marriages. Melissa and Heather Gartner subsequently married in

Des Moines on June 13. Heather was approximately six months

pregnant with the couple’s second child, Mackenzie Jean Gartner, at the

time of their marriage.

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Three months later, on September 19, Heather gave birth to

Mackenzie. Heather conceived Mackenzie using the same anonymous

donor as for their first child.

B. The Birth Certificate. The day after Mackenzie’s birth,

Heather and Melissa completed a form at the hospital to obtain

Mackenzie’s birth certificate. The Department provided the form. On the

form, the Gartners indicated that both Heather and Melissa are

Mackenzie’s parents and that they are legally married.

The Department issued Mackenzie’s birth certificate on

approximately November 19. The certificate only listed Heather as

Mackenzie’s parent. The space for the second parent’s name was blank.

C. Proceedings. After receiving Mackenzie’s birth certificate

naming only Heather, the Gartners sent a letter to the Department

requesting a birth certificate recognizing both Heather and Melissa as

Mackenzie’s parents. The Department denied the request. The

Department refused to place the name of the nonbirthing spouse in a

lesbian marriage on the birth certificate without the spouse first adopting

the child, pursuant to Iowa Code section 144.23(1). The Department

indicated: “The system for registration of births in Iowa currently

recognizes the biological and ‘gendered’ roles of ‘mother’ and ‘father,’

grounded in the biological fact that a child has one biological mother and

one biological father . . . .”

The Gartners then filed a mandamus action in the district court.

The Department moved to dismiss for lack of subject matter jurisdiction.

After various motions, amendments, and refilings, the district court

dismissed the Gartners’ mandamus action without prejudice for lack of

jurisdiction. The district court determined the Iowa Administrative

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Procedure Act (IAPA) provided the Gartners with the exclusive means for

obtaining review of the Department’s decision.

Accordingly, the Gartners brought this subsequent action for

judicial review under the IAPA. The district court ordered the

Department to issue Mackenzie a birth certificate naming Melissa as a

legal parent. The district court found under the presumption of

parentage, the Department erred in not naming Melissa on Mackenzie’s

birth certificate. However, the district court did not reach the

constitutional issues, focusing instead on the Department’s

interpretation of section 144.13(2).

The Department timely filed its notice of appeal and a motion to

stay the district court’s ruling. The district court denied the stay as to

the Gartners, but granted it for other birth certificates the Department

may issue while the appeal of the district court’s ruling in this case is

pending. Thus, the district court required the Department to issue the

Gartners a birth certificate listing both spouses as parents, but did not

require the Department to extend the same practice to other married

lesbian couples.

II. Issues.

We must decide if we can interpret Iowa Code section 144.13(2),

otherwise known as Iowa’s presumption of parentage statute, to require

the Department to list as a parent on a child’s birth certificate the

nonbirthing lesbian spouse, when the other spouse conceived the child

during the marriage using an anonymous sperm donor. If we cannot

adopt such an interpretation of the statute, we then must determine

whether the Department’s refusal to list the nonbirthing lesbian spouse

on the child’s birth certificate violates the equal protection clauses in

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article I, sections 1 and 6 of the Iowa Constitution or the due process

clause in article I, section 9 of the Iowa Constitution.

III. Standard of Review.

A. Statutory Interpretation. An individual adversely affected by

administrative agency action is entitled to judicial review. Iowa Code

§ 17A.19(1). Iowa Code section 17A.19(10) of the IAPA governs judicial

review of agency decisions. NextEra Energy Res. LLC v. Iowa Utils. Bd.,

815 N.W.2d 30, 36 (Iowa 2012). The Department is an agency governed

by the IAPA. See, e.g., Birchansky Real Estate, L.C. v. Iowa Dep’t of Pub.

Health, 737 N.W.2d 134, 138 (Iowa 2007) (applying the IAPA when

analyzing the Department’s interpretation of a statute); Greenwood

Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 828, 833–35 (Iowa

2002) (reviewing action by a division of the Department under the IAPA).

The agency action at issue here is the Department’s interpretation

of the presumption of parentage in Iowa Code section 144.13(2).

Specifically, the Department interpreted section 144.13(2), containing the

terms husband, father, and paternity, to apply only to a male spouse in

an opposite-sex marriage, not a female spouse in a lesbian marriage.

The deference we give to the Department’s decision depends upon

the legislative grant of authority to the agency. If the legislature “clearly

vested the agency with the authority to interpret the statute at issue,” we

reverse the Department’s decision only when its interpretation is

“irrational, illogical, or wholly unjustifiable.” NextEra, 815 N.W.2d at 36–

37 (citation and internal quotation marks omitted). However, if the

legislature did not clearly vest the agency with such authority, we reverse

the agency decision if it relies on an erroneous interpretation of the law.

Id. at 37.

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To determine the breadth of the agency’s vested authority, we

carefully consider “ ‘the specific language the agency has interpreted as

well as the specific duties and authority given to the agency with respect

to enforcing particular statutes.’ ” Id. (quoting Renda v. Iowa Civil Rights

Comm’n, 784 N.W.2d 8, 13 (Iowa 2010)). We recognize that even though

“[t]he legislature may explicitly vest the authority to interpret an entire

statutory scheme with an agency[,] . . . the fact that an agency has been

granted rule making authority does not ‘give[] an agency the authority to

interpret all statutory language.’ ” Evercom Sys., Inc. v. Iowa Utils. Bd.,

805 N.W.2d 758, 762 (Iowa 2011) (quoting Renda, 784 N.W.2d at 13).

“ ‘[B]road articulations of an agency’s authority, or lack of authority,

should be avoided in the absence of an express grant of broad

interpretive authority.’ ” NextEra, 815 N.W.2d at 37 (quoting Renda, 784

N.W.2d at 14). The agency’s own belief that the legislature vested it with

interpretive authority is irrelevant. Iowa Code § 17A.19(11)(a).

There are specific standards to assist us in determining the scope

of the agency’s interpretive authority. These standards are found in Iowa

Code section 17A.19(10), subsections (a) through (n). We use these

standards to see if we reach the same result as the district court

regarding whether the agency has clearly vested authority to interpret

the statute. Renda, 784 N.W.2d at 10.

The validity of agency action under these standards turns on the

type of action taken. There are at least three types of agency action:

(1) contested case hearings, (2) rulemaking, and (3) the catchall category

of other agency action. Jew v. Univ. of Iowa, 398 N.W.2d 861, 864 (Iowa

1987). Here, the parties do not dispute that this action falls within the

other agency action category.

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After examining the Code, we find the legislature did not clearly

vest the Department with the authority to interpret section 144.13(2). To

reach this conclusion, we first recognize, in accordance with the district

court’s decision, that the legislature did not expressly authorize the

Department to interpret section 144.13(2). A review of the language the

Department has interpreted and its legislative grant of authority leads us

to this result.

The Department’s primary responsibility is to record vital events

occurring within the state. See Iowa Code §§ 144.2, .5. The Department

describes its role as custodian of vital statistics. The Code grants the

Department the power to “adopt, amend, and repeal rules for the

purpose of carrying out the provisions of [the Vital Statistics Code], in

accordance with chapter 17A.” Id. § 144.3. Nonetheless, rulemaking

power does not give the Department the authority to interpret all

statutory language. NextEra, 815 N.W.2d at 37. Accordingly, to find the

Department had the authority to interpret the statutory terms at issue,

including paternity, father, and husband, would be overreaching because

these terms are not exclusively within the expertise of the Department.

Instead, the legislature utilized these terms throughout the Iowa Code.

For instance, the term “paternity” appears in statutes that the

Department has no role in enforcing. See, e.g., Iowa Code § 252A.3

(defining liability for the support of dependents); id. ch. 600B (detailing

how to establish paternity and calculate child support).

Finally, the Department contends the appropriate standard of

review is for correction of errors at law. By so arguing, the Department

concedes the legislature did not instill in the agency the authority to

interpret the presumption of parentage statute. Thus, we agree with the

district court and accord no deference to the Department’s interpretation

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of the statute when deciding whether the Department breached the

abovementioned standards. Id. § 17A.19(11)(b) (“[T]he [reviewing] court

. . . [s]hould not give any deference to the view of the agency with respect

to particular matters that have not been vested by a provision of law in

the discretion of the agency.”). Accordingly, our task is to determine

whether the Department erroneously interpreted the presumption of

parentage.

B. Constitutional Issues. We can grant relief from administrative

proceedings if the agency’s action is “[u]nconstitutional on its face or as

applied or is based upon a provision of law that is unconstitutional on its

face or as applied.” Id. § 17A.19(10)(a). The court gives the agency no

deference regarding the constitutionality of the statute or administrative

rule. NextEra, 815 N.W.2d at 44. Determining whether a statute or

administrative rule offends the state or federal constitution is a task

“entirely within the province of the judiciary . . . .” Id. Thus, we review

agency action involving constitutional issues de novo. Id.

IV. Iowa’s Presumption of Parentage Statute.

Iowa’s Vital Statistics Code requires filing a certificate of birth with

the Department within seven days of a live birth occurring in the state.

Iowa Code § 144.13(1)(a). The state uses the birth certificate to establish

the fact a birth occurred, as well as to identify the child for immunization

purposes. Id. § 144.13(1)(a), (d).

For purposes of preparing a birth certificate, the Code includes a

presumption of parentage. See id. § 144.13(2). The legislature

articulated the following procedure for preparing a child’s birth

certificate, based upon the presumption of parentage:

If the mother was married at the time of conception,

birth, or at any time during the period between

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conception and birth, the name of the husband shall be

entered on the certificate as the father of the child unless

paternity has been determined otherwise by a court of

competent jurisdiction, in which case the name of the

father as determined by the court shall be entered by the

department.

Id. The statute is rebuttable under the preponderance standard “by

clear, strong and satisfactory evidence.” In re Marriage of Schneckloth,

320 N.W.2d 535, 536 (Iowa 1982). The challenging party must also

demonstrate a parental relationship with the child. Huisman v.

Miedema, 644 N.W.2d 321, 325 (Iowa 2002). Here, rebutting the

presumption is a nonissue, because Heather conceived Mackenzie using

an anonymous sperm donor.

The presumption of parentage is a fundamental legal construct

originating in common law. Michael H. v. Gerald D., 491 U.S. 110, 124,

109 S. Ct. 2333, 2343, 105 L. Ed. 2d 91, 107 (1989). A New York court

described the presumption’s development as follows:

At common law, parentage derived from two events, a child’s

birth to its “mother,” and the mother’s marriage to a man.

Children born out-of-wedlock had only one legal parent,

their birth mother. Recognizing the many advantages that

flowed to children from having two parents, legislatures

enacted filiation or paternity proceedings to confer legal

parentage on non-marital biological/genetic fathers, a status

which carries support and other obligations. Similarly,

adoption statutes established legal parentage for married

couples who were biological/genetic strangers to a child.

In re Adoption of Sebastian, 879 N.Y.S.2d 677, 679 (Sur. Ct. 2009)

(footnote and internal citations omitted).

Legislatures across the nation have adopted statutes codifying a

presumption of parentage in order to address several key social policies.1

1Numerous states have codified their presumption of parentage. Certain

characteristics allow us to classify these provisions into three separate categories.

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First, there are statutes using traditional, gendered terms (such as husband,

wife, man, woman, father, and mother), without referencing the parent as natural or

biological. See Ala. Code § 26-17-204(a)(1) (LexisNexis 2012) (“A man is presumed to be

the father of a child if . . . he and the mother of the child are married to each other and

the child is born during the marriage . . . .”); Alaska Stat. § 18.50.160(d) (2012) (“If the

mother was married at conception, during the pregnancy, or at birth, the name of the

husband shall be entered on the certificate as the father of the child . . . .”); Ariz. Rev.

Stat. Ann. § 25-814(A)(1) (2012) (“A man is presumed to be the father of the child if . . .

[h]e and the mother of the child were married at any time in the ten months

immediately preceding the birth . . . .”); Cal. Fam. Code § 7540 (West 2013) (“[T]he child

of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively

presumed to be a child of the marriage.”); Del. Code Ann. tit. 13, § 8–204(a)(1) (West

2012) (“A man is presumed to be the father of a child if . . . [h]e and the mother of the

child are married to each other and the child is born during the marriage . . . .”); Fla.

Stat. Ann. § 382.013(2)(a) (West 2013) (“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.”);

Kan. Stat. Ann. § 23-2208(a)(1) (West 2012) (“A man is presumed to be the father of a

child if . . . [t]he man and the child’s mother are, or have been, married to each other

and the child is born during the marriage . . . .”); Ky. Rev. Stat. Ann. § 406.011 (West

2012) (“A child born during lawful wedlock, or within ten (10) months thereafter, is

presumed to be the child of the husband and wife.”); La. Civ. Code Ann. art. 185 (2012)

(“The husband of the mother is presumed to be the father of a child born during the

marriage or within three hundred days from the date of the termination of the

marriage.); Md. Code Ann., Fam. Law § 5-1027(c)(1) (LexisNexis 2012) (“There is a

rebuttable presumption that the child is the legitimate child of the man to whom its

mother was married at the time of conception.”); Mass. Gen. Laws Ann. ch. 209C,

§ 6(a)(1) (West 2013) (“[A] man is presumed to be the father of a child . . . if . . . he is or

has been married to the mother and the child was born during the marriage, or within

three hundred days after the marriage was terminated by death, annulment or divorce

. . . .”); N.M. Stat. Ann. § 40-11A–204(A)(1) (2012) (“A man is presumed to be the father

of a child if . . . he and the mother of the child are married to each other and the child

is born during the marriage . . . .”); N.C. Gen. Stat. § 49-12.1 (2011) (allowing a putative

father to overcome the “presumption of legitimacy” that the father is the man to whom

the child’s mother is married); N.D. Cent. Code Ann. § 14-20-10(1)(a) (West 2011) (“A

man is presumed to be the father of a child if . . . [h]e and the mother of the child are

married to each other and the child is born during the marriage.”); Okla. Stat. Ann. tit.

10, § 7700-204(A)(1) (West 2013) (“A man is presumed to be the father of a child if . . .

[h]e and the mother of the child are married to each other and the child is born during

the marriage . . . .”); Or. Rev. Stat. Ann. § 109.070(1)(a) (West 2012) (“A man is

rebuttably presumed to be the father of a child born to a woman if he and the woman

were married to each other at the time of the child’s birth . . . .”); R.I. Gen. Laws Ann.

§ 23-3-10(d)(1) (West 2012) (“If the mother was married either at the time of conception

or birth, the name of the husband shall be entered on the certificate as the father of the

child . . . .”); S.D. Codified Laws § 25-8-57 (2012) (“Any child born in wedlock, or born

within ten months after dissolution of the marriage, is presumed legitimate to that

marriage . . . .”); Tenn. Code Ann. § 36-2-304(a)(1) (2012) (“A man is rebuttably

presumed to be the father of a child if . . . [t]he man and the child’s mother are married

or have been married to each other and the child is born during the marriage . . . .”);

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Tex. Fam. Code Ann. § 160.204(a)(1) (West 2012) (“A man is presumed to be the father

of a child if . . . he is married to the mother of the child and the child is born during the

marriage . . . .”); Wyo. Stat. Ann. § 14-2-504(a)(i) (2011) (“A man is presumed to be the

father of a child if . . . [h]e and the mother of the child are married to each other and the

child is born during the marriage . . . .”).

Second, there are code provisions applying the presumption only when the

presumed parent shares a genetic connection with the child. These statutes refer to

those eligible to be the presumed parent as the “natural” or “biological” parent. See

Colo. Rev. Stat. § 19-4-105(1)(a) (2012) (“A man is presumed to be the natural father of

a child if . . . [h]e and the child’s natural mother are or have been married to each other

and the child is born during the marriage . . . .”); Haw. Rev. Stat. § 584-4(a)(1) (2007)

(“A man is presumed to be the natural father of a child if . . . [h]e and the child’s natural

mother are or have been married to each other and the child is born during the

marriage . . . .”); 750 Ill. Comp. Stat. Ann. 45/5(a)(1) (West 2012) (“A man is presumed

to be the natural father of a child if . . . he and the child’s natural mother are or have

been married to each other . . . and the child is born or conceived during such marriage

. . . .”); Ind. Code Ann. § 31-14-7-1(1)(A) (LexisNexis 2012) (“A man is presumed to be a

child’s biological father if . . . the . . . man and the child’s biological mother are or have

been married to each other . . . .”); Mich. Comp. Laws Ann. § 700.2114(1)(a) (West 2012)

(“If a child is born or conceived during a marriage, both spouses are presumed to be the

natural parents of the child for purposes of intestate succession. A child conceived by a

married woman with the consent of her husband following utilization of assisted

reproductive technology is considered as their child for purposes of intestate

succession. Consent of the husband is presumed unless the contrary is shown by clear

and convincing evidence. If a man and a woman participated in a marriage ceremony in

apparent compliance with the law before the birth of a child, even though the attempted

marriage may be void, the child is presumed to be their child for purposes of intestate

succession.”); Minn. Stat. Ann. § 257.55(1)(a) (West 2013) (“A man is presumed to be

the biological father of a child if . . . he and the child’s biological mother are or have

been married to each other and the child is born during the marriage . . . .”); Mo. Ann.

Stat. § 210.822.1(1) (West 2013) (“A man shall be presumed to be the natural father of a

child if . . . [h]e and the child’s natural mother are or have been married to each other

and the child is born during the marriage . . . .”); Mont. Code Ann. § 40–6–105(1)(a)

(2011) (“A person is presumed to be the natural father of a child if . . . the person and

the child’s natural mother are or have been married to each other and the child is born

during the marriage . . . .”); Nev. Rev. Stat. § 126.051(1)(a) (2011) (“A man is presumed

to be the natural father of a child if . . . [h]e and the child’s natural mother are or have

been married to each other and the child is born during the marriage . . . .”); N.J. Stat.

Ann. § 9:17–43(a)(1) (West 2012) (“A man is presumed to be the biological father of a

child if . . . [h]e and the child’s biological mother are or have been married to each other

and the child is born during the marriage . . . .”); Ohio Rev. Code Ann. § 3111.03(A)(1)

(LexisNexis 2012) (“A man is presumed to be the natural father of a child [if] . . . [t]he

man and the child’s mother are or have been married to each other, and the child is

born during the marriage . . . .”); Vt. Stat. Ann. tit. 15, § 308(4) (2012) (“A person

alleged to be a parent shall be rebuttably presumed to be the natural parent of a child if

. . . the child is born while the husband and wife are legally married to each other.”);

Wis. Stat. Ann. § 891.41(1)(a) (West 2012) (“A man is presumed to be the natural father

of a child if . . . [h]e and the child’s natural mother are or have been married to each

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Specifically, “the presumption protected the legitimacy of children, which

in turn entitled them to the financial support, inheritance rights, and

filiation obligations of their parents.” Diane S. Kaplan, Why Truth Is Not

a Defense in Paternity Actions, 10 Tex. J. Women & L. 69, 70 (2000)

[hereinafter Kaplan]. It thwarted the possibility that children would

become wards of the state and promoted familial stability by preventing

“a third-party putative father from insinuating himself onto an intact

family by claiming to have sired one of the family’s children.” Id. at 70–

71; see also Michael H., 491 U.S. at 125, 109 S. Ct. at 2343, 105

L. Ed. 2d at 107. Moreover, at a time when “genetic origins were more a

matter of suspicion than science,” the presumption served judicial

efficiency by curtailing debates between parents as to the biological

nature of their parent–child relationship. Kaplan, 10 Tex. J. Women & L.

at 71.

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other and the child is conceived or born after marriage and before the granting of a

decree of legal separation, annulment or divorce between the parties.”).

Finally, there are statutes that apply or could apply in a gender-neutral manner

or to same-sex spouses. See Ark. Code Ann. § 28-9-209(a)(2) (2011) (“A child born or

conceived during a marriage is presumed to be the legitimate child of both spouses . . .

.”); D.C. Code § 16–909(a–1)(1) (2012) (“There shall be a presumption that a woman is

the mother of a child if she and the child’s mother are or have been married, or in a

domestic partnership, at the time of either conception or birth, or between conception

or birth, and the child is born during the marriage or domestic partnership . . . .”); Ga.

Code Ann. § 19-7-20(a) (West 2012) (“All children born in wedlock or within the usual

period of gestation thereafter are legitimate.”); Neb. Rev. Stat. § 42-377 (2012)

(“Children born to the parties, or to the wife, in a marriage relationship . . . shall be

legitimate . . . .”); N.Y. Dom. Rel. Law § 24(1) (McKinney 2013) (“A child heretofore or

hereafter born of parents who prior or subsequent to the birth of such child shall have

entered into a civil or religious marriage, or shall have consummated a common-law

marriage where such marriage is recognized as valid, in the manner authorized by the

law of the place where such marriage takes place, is the legitimate child of both birth

parents notwithstanding that such marriage is void or voidable or has been or shall

hereafter be annulled or judicially declared void.”); Wash. Rev. Code Ann.

§ 26.26.116(1)(a) (West 2013) (“In the context of a marriage or a domestic partnership, a

person is presumed to be the parent of a child if . . . [t]he person and the mother or

father of the child are married to each other or in a domestic partnership with each

other and the child is born during the marriage or domestic partnership . . . .”).

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Based on these social policies, “ten states and the District of

Columbia have extended (or are set to extend) the ‘marital’ parentage

presumption to same-sex couples in the formalized relationship of

marriage, civil union, or domestic partnership.” Nancy D. Polikoff, A

Mother Should Not Have to Adopt Her Own Child: Parentage Laws for

Children of Lesbian Couples in the Twenty-First Century, 5 Stan. J. C.R. &

C.L., 201, 247 (2009).

Specific to Iowa, our court long ago articulated the principal bases

for presuming a child born in wedlock is the legitimate issue of the

marital spouses:

“This rule is founded on decency, morality, and public

policy. By that rule, the child is protected in his inheritance

and safeguarded against future humiliation and shame.

Likewise, under the rule, the family relationship is kept

sacred and the peace and harmony thereof preserved. No

one, by incompetent evidence, can malign the virtue of the

mother, and no one, by such evidence, can interrupt the

harmony of the family relationship and undermine the

sanctity of the home.”

Heath v. Heath, 222 Iowa 660, 661, 269 N.W. 761, 761 (Iowa 1936)

(quoting Craven v. Selway, 216 Iowa 505, 508, 246 N.W. 821, 823 (Iowa

1933), overruled on other grounds by In re Marriage of Schneckloth, 320

N.W.2d at 537)). Taking these policies individually, we recognize the

strong stigma accompanying illegitimacy.2 The presumption counteracts

the stigma by protecting the integrity of the marital family, even when a

biological connection is not present. The presumption in Iowa even

protects the child if the parents’ marriage later terminates. Iowa Code

2The Iowa Code chapter dealing with paternity and the obligation for support

prohibits reference to illegitimacy, except in birth records and certificates or in judicial

records where paternity is in dispute. See Iowa Code § 600B.35. The statute

specifically states, “[T]he term biological shall be deemed equivalent to the term

illegitimate when referring to parentage or birth out of wedlock.” Id. (emphasis added).

16

§ 598.31. Specifically, the legitimacy statute located in the dissolution

chapter of the Iowa Code indicates:

Children born to the parties, or to the wife, in a marriage

relationship which may be terminated or annulled pursuant

to the provisions of this chapter shall be legitimate as to both

parties, unless the court shall decree otherwise according to

the proof.

Id. (emphasis added).

Finally, the presumption in Iowa functions to ensure a child’s right

to financial support against a spouse’s claim of not being a biological

parent. See Iowa Code § 252A.3(4). The child support statute provides:

A child or children born of parents who, at any time prior or

subsequent to the birth of such child, have entered into a

civil or religious marriage ceremony, shall be deemed the

legitimate child or children of both parents, regardless of the

validity of such marriage.

Id. (emphasis added).

In Iowa, the presumption applies broadly, legitimizing children

born during marriages formally solemnized, as well as those satisfying

the requirements for common law marriage, pursuant to Iowa Code

section 595.18. See Estate of Hawk v. Lain, 329 N.W.2d 660, 663 (Iowa

1983).

V. Statutory Interpretation of Iowa Code Section 144.13(2).

The district court interpreted section 144.13(2) to require the

Department to list Melissa as Mackenzie’s second parent on the birth

certificate. We do not agree the statute can be interpreted in this way.

When construing a statute, we have stated:

The goal of statutory construction is to determine legislative

intent. We determine legislative intent from the words

chosen by the legislature, not what it should or might have

said. Absent a statutory definition or an established

meaning in the law, words in the statute are given their

ordinary and common meaning by considering the context

17

within which they are used. Under the guise of

construction, an interpreting body may not extend, enlarge

or otherwise change the meaning of a statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)

(internal citations omitted).

A specific rule of construction found in Iowa Code section 4.1

applies to statutes containing gendered terms and assists us in

ascertaining the legislature’s intent. Section 4.1 provides: “Words of one

gender include the other genders.” Iowa Code § 4.1(17). This is not,

however, a blanket rule applicable to all types of statutes. Instead,

courts construing statutes can only utilize this rule when the statute

uses a specific type of gendered language.

When the statute refers to only one gender and the gender

referenced is masculine, section 4.1(17) extends the statute to include

females. The Henry County District Court observed this legal truth in an

early decision concerning whether it should admit Arabella Mansfield to

the Iowa bar. At that time, the Iowa statute regulating the bar admission

of attorneys referred to only “white male person[s].” Iowa Code § 2700

(1860). The court relied on a prior version of section 4.1(17)3 and found

“not only by the language of the law itself, but by the demands and

necessities of the present time and occasion,” that masculine terms

include feminine words. Mary L. Clark, The Founding of the Washington

College of Law: The First Law School Established by Women for Women,

47 Am. U. L. Rev. 613, 622 n.45 (1998). As a result, Mansfield became

the first woman to secure a state law license in the United States.

Richard, Lord Acton & Patricia Nassif Acton, To Go Free: A Treasury of

Iowa’s Legal Heritage, 132 (Iowa State Univ. Press 1995). Since then, we

3Iowa Code § 29.3 (1860).

18

have applied the rule in various other contexts.4 Thus, when a statute

employs a masculine term, we will construe the scope of the statute to

include the corresponding feminine term.

However, when the statute refers to only one gender and the

gender referenced is feminine, section 4.1(17) does not extend the scope

of the statute to include males. Young v. O’Keefe, 246 Iowa 1182, 1188,

69 N.W.2d 534, 537 (1955). There, the court found that a husband

could not recover under a pension statute, because the court could not

enlarge the term “widow,” as it referred to the surviving spouse who was

eligible for survivor benefits, to include “widowers.” Id. at 1186–89, 69

N.W.2d at 537–38 (“Nowhere . . . do we find any statute or authority

permitting substitution of the masculine for the feminine.”).

Finally, when the statute employs both masculine and feminine

words, section 4.1(17) does not apply. Cf. State ex rel. Mitchell v.

McChesney, 190 Iowa 731, 733–34, 180 N.W. 857, 858 (1921). Reading

such a statute in a gender-neutral manner “would destroy or change” the

plain and unambiguous language, and would “nullif[y] the intent of the

Legislature.” Id. at 734, 180 N.W. at 858.

Iowa’s presumption of parentage statute expressly uses both

masculine and feminine words by referring to a mother, father, and

husband. See Iowa Code § 144.13(2). Accordingly, section 4.1(17) does

not apply. If we applied the rule and imposed a gender-neutral

4See, e.g., State v. Clark, 180 Iowa 477, 483, 163 N.W. 250, 253 (1917) (finding a

jury instruction on the credibility of witnesses, which referred to “him,” did not single

the defendant out from the minor female, an alleged rape victim, because the masculine

term also included females); Haerther v. Mohr, 114 Iowa 636, 636–37, 87 N.W. 692, 692

(1901) (recognizing a life insurance policy designating the deceased husband’s

beneficiaries as “his executors, administrators, or assigns” also included those of his

wife (emphasis added)).

19

interpretation of the presumption, we would destroy the legislature’s

intent to unambiguously differentiate between the roles assigned to the

two sexes. Only a male can be a husband or father. Only a female can

be a wife or mother. The legislature used plain and unambiguous

language to convey its intent. Thus, we cannot nullify the intent of the

legislature by finding otherwise through statutory construction.

Finally, the district court relied on our decision in Varnum to

compel its statutory construction analysis. At the time of enactment, the

legislature made a conscious choice to use the word “husband.” It could

have chosen to use spouse or other such language, but it did not.5

Varnum was decided thirty-nine years after the legislature enacted

section 144.13(2). See 1970 Iowa Acts ch. 1081, § 14. Hence, it is

doubtful the legislature considered same-sex marriages when it enacted

section 144.13(2). Husband was an unambiguous term at the time of

passing section 144.13(2). Therefore, we cannot use the rules of

statutory construction to extend, enlarge, or otherwise change the plain

meaning of section 144.13(2).

Accordingly, we proceed to the second step of our analysis and

determine whether the constitutional guarantees of equal protection and

due process require applying the presumption of parentage to lesbian

married couples.

VI. Constitutional Analysis.

At the district court and on appeal, the Gartners raised numerous

constitutional arguments as to why section 144.13(2) is unconstitutional,

facially and as applied. Although the district court did not decide the

case on constitutional grounds, we can consider these grounds on appeal

5Footnote one cites the variations of this statute in our sister states.

20

to affirm the trial court’s judgment, because the Gartners made the

constitutional challenges below. See Fencl v. City of Harpers Ferry, 620

N.W.2d 808, 811–12 (Iowa 2000) (“[W]e may still affirm if there is an

alternative ground, raised in the district court and urged on appeal, that

can support the court’s decision.”); Chauffeurs, Teamsters & Helpers,

Local Union No. 238 v. Iowa Civil Rights Comm’n, 394 N.W.2d 375, 378

(Iowa 1986) (indicating we may decide issues on appeal not reached by

the district court when they have been raised in the district court and

“fully briefed and argued” by the parties on appeal).

Although the parties have argued and briefed numerous

constitutional issues in both courts, we can dispose of this appeal under

the equal protection clauses of our Iowa Constitution. Thus, we need not

address the due process claim.

The first clause in article I, section 1 states: “All men and women

are, by nature, free and equal . . . .” Iowa Const. art. I, § 1. In an early

case, we determined that this section of the Iowa Constitution

guaranteed an African-American woman equal accommodations. Coger

v. Nw. Union Packet Co., 37 Iowa 145, 155–56 (1873). In Coger, we said:

These rights and privileges rest upon the equality of all

before the law, the very foundation principle of our

government. If the negro must submit to different treatment,

to accommodations inferior to those given to the white man,

when transported by public carriers, he is deprived of the

benefits of this very principle of equality. His contract with a

carrier would not secure him the same privileges and the

same rights that a like contract, made with the same party

by his white fellow citizen, would bestow upon the latter.

Id. at 153–54.

We have also used article I, section 6 to determine if a statute

violates equal protection guarantees under the state constitution. See,

e.g., Varnum, 763 N.W.2d at 878, 907 (holding Iowa’s Defense of

21

Marriage Act violates the equal protection clause of article I, section 6 of

the Iowa Constitution); Bierkamp v. Rogers, 293 N.W.2d 577, 585 (Iowa

1980) (holding the guest statue violates the equal protection clause of

article I, section 6 of the Iowa Constitution). Article I, section 6 provides:

“All laws of a general nature shall have a uniform operation; the general

assembly shall not grant to any citizen, or class of citizens, privileges or

immunities, which, upon the same terms shall not equally belong to all

citizens.” Iowa Const. art. I, § 6.

We recently applied an equal protection analysis in Varnum. 763

N.W.2d at 878–906. There, we said that when conducting an equal

protection analysis under the Iowa Constitution, the first step is to

determine if the “laws treat all those who are similarly situated with

respect to the purposes of the law alike.” Id. at 883. Thus, our threshold

inquiry is whether the Gartners are similarly situated to married

opposite-sex couples for the purposes of applying the presumption of

parentage. If they are, we proceed to the second step and decide which

level of constitutional scrutiny to apply when conducting our review of

the challenged statute. Id. at 879–80.

A. Similarly Situated Analysis. Under the Iowa Constitution,

“the equal protection guarantee requires that laws treat all those who are

similarly situated with respect to the purposes of the law alike.” Id. at

883. Here, the Department is responsible for “install[ing], maintain[ing],

and operat[ing] the system of vital statistics throughout the state.” Iowa

Code § 144.2. Vital statistics are the “records of births, deaths, fetal

deaths, adoptions, marriages, dissolutions, annulments, and data related

thereto.” Id. § 144.1(15). The state uses birth certificates to establish

the fact a birth occurred, as well as to identify a child for immunization

purposes. Id. § 144.13(1)(a), (d). The state also uses a birth certificate to

22

verify a person’s identity and date of birth. See, e.g., Iowa Admin. Code

r. 761—601.5(1)(b) (2009) (identifying a birth certificate as one of the

documents persons applying for a new driver’s license or nonoperator’s

identification card may provide to verify their identity and birthdate).

The federal government recognizes the following purposes for birth

certificates: (1) to maintain population statistics, (2) to confirm a child’s

identity, and (3) to ensure access to federal benefits and programs. See

Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 764–67 (2008)

(discussing the federal government’s use of birth certificates).

Thus, with respect to the subject and purposes of Iowa’s marriage

laws, we find the Gartners similarly situated to married opposite-sex

couples. The Gartners are in a legally recognized marriage, just like

opposite-sex couples. The official recognition of their child as part of

their family provides a basis for identifying and verifying the birth of their

child, just as it does for opposite-sex couples. Additionally, married

lesbian couples require accurate records of their child’s birth, as do their

opposite-sex counterparts. The distinction for this purpose between

married opposite-sex couples and married lesbian couples does not exist

and cannot defeat an equal protection analysis. Therefore, with respect

to the government’s purpose of identifying a child as part of their family

and providing a basis for verifying the birth of a child, married lesbian

couples are similarly situated to spouses and parents in an opposite-sex

marriage.

B. Classification Analysis. The Gartners argue the refusal of the

Department to list both of the spouses in a lesbian marriage on the birth

certificate of a child born during marriage classifies a person based on

sex and sexual orientation under the Iowa Constitution. The Department

contends the refusal only classifies individuals based on sex.

23

Nonetheless, the Department concedes that even if we classify the refusal

on sex, an intermediate level of scrutiny applies.

In Varnum, we rejected the argument that the Defense of Marriage

Act classified individuals based on sex and analyzed the classification

based on sexual orientation. 763 N.W.2d at 885. The legislature’s

purposeful use of “husband” in section 144.13(2) does not allow married

lesbian couples to have the nonbirthing spouse’s name on the birth

certificate when one of the spouses in that relationship gives birth to the

child. Therefore, as in Varnum, the refusal to list the nonbirthing lesbian

spouse on the child’s birth certificate “differentiates implicitly on the

basis of sexual orientation.” Id.

C. Application of Judicial Scrutiny. Under Varnum, a sexual-

orientation-based classification is subject to a heightened level of

scrutiny under the Iowa Constitution. Id. at 896. Neither the Gartners

nor the Department asks us to overturn Varnum, which requires the

state to allow same-sex couples to marry. Therefore, it would be

inappropriate for this court to revisit the Varnum decision. Instead, our

task is to measure the Department’s classification against the

heightened-level-of-scrutiny standard.

Heightened scrutiny requires the State to show the statutory

classification is substantially related to an important governmental

objective. Id. Accordingly, we must evaluate whether the governmental

objectives proffered by the State are important and whether the statutory

classification substantially relates to those objectives. Id. at 897.

Our construction of the statute is the same as the Department’s.

The plain language of the statute requires the Department to put a

husband’s name on the birth certificate if a married opposite-sex couple

has a child born during the marriage and if the couple used an

24

anonymous sperm donor to conceive the child. Thus, the statute treats

married lesbian couples who conceive through artificial insemination

using an anonymous sperm donor differently than married opposite-sex

couples who conceive a child in the same manner. We must analyze this

differential treatment to determine if it is substantially related to an

important governmental objective.

In the Department’s response to the Gartners’ request for

admissions, the State admitted Iowa Code section 144.13(2) requires the

Department to put a male’s name on a child’s birth certificate if a

married opposite-sex couple has a child born during the marriage and if

the couple utilized an anonymous sperm donor to conceive the child.

However, this is not true if paternity has been determined otherwise by a

court of competent jurisdiction.

The Department enumerates three objectives supporting section

144.13(2)’s differing treatment of married, lesbian and opposite-sex

couples. Specifically, the Department argues the government has an

interest in the accuracy of birth certificates, the efficiency and

effectiveness of government administration, and the determination of

paternity.

First, we understand that ensuring the accuracy of birth records

for identification of biological parents is a laudable goal. However, the

present system does not always accurately identify the biological father.

When a married opposite-sex couple conceives a child using an

anonymous sperm donor, the child’s birth certificate reflects the male

spouse as the father, not the biological father who donated the sperm. In

that situation, the Department is not aware the couple conceived the

child by an anonymous sperm donor.

25

Furthermore, the Department claims that the only way a married

lesbian couple, who uses an anonymous sperm donor to conceive the

child, can list the nonbirthing spouse as the parent on the birth

certificate is to go through an adoption proceeding. This will not make

the birth certificate any more accurate than applying the presumption of

parentage for married lesbian couples, because the birth certificate still

will not identify the biological father. The birth records of this state do

not contain a statistical database listing the children conceived using

anonymous sperm donors. Thus, the classification is not substantially

related to the asserted governmental purpose of accuracy.

The Department next asserts the refusal to apply the presumption

of parentage to nonbirthing spouses in lesbian marriages serves

administrative efficiency and effectiveness. The Department argues that

it takes valuable resources to reissue a birth certificate when a

challenger successfully rebuts the presumption of parentage. However,

when couples use an anonymous sperm donor, there will be no rebuttal

of paternity. Moreover, even when couples conceive without using an

anonymous sperm donor, there is no showing in the record that the

presumption of paternity in opposite-sex marriages is rebutted in a

significant number of births.

The Department concedes its interest in administrative efficiency

and effectiveness is present when the Department puts the father on the

birth certificate of a child born during the marriage of an opposite-sex

couple. This efficiency is lost if the law is not applied equally to married

lesbian couples. It is more efficient for the Department to list,

presumptively, the nonbirthing spouse as the parent on the birth

certificate when the child is born, rather than to require the Department

to issue a birth certificate with only one spouse’s name on the certificate

26

and then later, after an adoption is complete, reissue the certificate.

These realities demonstrate that the disparate treatment of married

lesbian couples is less effective and efficient, and that some other

unarticulated reason, such as stereotype or prejudice, may explain the

real objective of the State.

The third proffered reason for the Department’s action is the

government’s interest in establishing paternity to ensure financial

support of the child and the fundamental legal rights of the father.

When a lesbian couple is married, it is just as important to establish who

is financially responsible for the child and the legal rights of the

nonbirthing spouse. As we said in Varnum:

[Same-sex couples] are in committed and loving

relationships, many raising families, just like heterosexual

couples. Moreover, official recognition of their status

provides an institutional basis for defining their

fundamental relational rights and responsibilities, just as it

does for heterosexual couples. Society benefits, for

example, from providing same-sex couples a stable

framework within which to raise their children and the

power to make health care and end-of-life decisions for

loved ones, just as it does when that framework is provided

for opposite-sex couples.

Id. at 883. It is important for our laws to recognize that married lesbian

couples who have children enjoy the same benefits and burdens as

married opposite-sex couples who have children. By naming the

nonbirthing spouse on the birth certificate of a married lesbian couple’s

child, the child is ensured support from that parent and the parent

establishes fundamental legal rights at the moment of birth. Therefore,

the only explanation for not listing the nonbirthing lesbian spouse on the

birth certificate is stereotype or prejudice. The exclusion of the

nonbirthing spouse on the birth certificate of a child born to a married

27

lesbian couple is not substantially related to the objective of establishing

parentage.

Thus, section 144.13(2) fails to comport with the guarantees of

equal protection under article I, sections 1 and 6 of the Iowa

Constitution. The Department has been unable to identify a

constitutionally adequate justification for refusing to list on a child’s

birth certificate the nonbirthing spouse in a lesbian marriage, when the

child was conceived using an anonymous sperm donor and was born to

the other spouse during the marriage. Thus, the language in section

144.13(2) limiting the requirement to “the name of the husband” on the

birth certificate is unconstitutional as applied to married lesbian couples

who have a child born to them during marriage.

VII. Remedy.

We find the presumption of parentage statute violates equal

protection under the Iowa Constitution as applied to married lesbian

couples. However, we are not required to strike down the statute

because our obligation is to preserve as much of a statute as possible,

within constitutional restraints. See Racing Ass’n of Cent. Iowa v.

Fitzgerald, 648 N.W.2d 555, 563 (Iowa 2002), rev’d on other grounds, 539

U.S. 103, 123 S. Ct. 2156, 156 L. Ed. 2d 97 (2003). Accordingly, instead

of striking section 144.13(2) from the Code, we will preserve it as to

married opposite-sex couples and require the Department to apply the

statute to married lesbian couples. Therefore, we affirm the district court

and order the Department to issue a birth certificate naming Melissa

Gartner as the parent of the child, Mackenzie Jean Gartner.

VIII. District Court’s Stay Order.

The Department asked the district court to stay the enforcement of

its order pending this appeal. The district court would not stay its order

28

as applied to the Gartners, but did grant the stay as to other birth

certificates the Department may issue pending the appeal of the district

court’s ruling. The district court’s rationale in issuing this stay was that

administrative problems would arise if the Department issued birth

certificates to other married lesbian couples and we subsequently

reversed the district court’s decision. These administrative problems no

longer exist because of our holding that section 144.13(2) presumptively

listing only “the name of the husband” on the birth certificate is

unconstitutional as applied to married lesbian couples who have a child

born to them during marriage. Accordingly, on remand, we order the

district court to lift the stay.

IX. Disposition.

We affirm the judgment of the district court ordering the

Department to issue a birth certificate naming Melissa Gartner as the

parent of the child, Mackenzie Jean Gartner, because section 144.13(2)

with its limited application allowing for only “the name of the husband”

to appear on the birth certificate is unconstitutional as applied to a

married lesbian couple who has a child born to them during their

marriage. We also order on remand that the district court lift the stay as

to other married lesbian couples.

Therefore, we remand the case to the district court to lift the stay.

On remand, we instruct the district court to enter an order under

17A.19(10), remanding this case to the Department and ordering it to

issue a birth certificate naming Melissa Gartner as the parent of the

child, Mackenzie Jean Gartner.

AFFIRMED AS MODIFIED.

All justices concur except Mansfield and Waterman, JJ., who

specially concur and Zager, J., who takes no part.

29

#12–0243, Gartner v. Dep’t of Pub. Health

MANSFIELD, Justice (concurring specially).

The Iowa Department of Public Health accepts the decision in

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), for purposes of this

appeal. I agree that if Varnum is the law, then Iowa Code section

144.13(2) cannot be constitutionally applied to deny Melissa Gartner’s

request to be listed as parent on the birth certificate of the child delivered

by her same-sex spouse. Accordingly, I concur in the judgment in this

case.

Waterman, J., joins this special concurrence.