Amicus Curiae Brief — Kristina Box, Commissioner, Indiana Department of Health, Petitioner v. Ashlee Henderson, et al.

No. 19-1385

In the Supreme Court of the United States

__________

KRISTINA BOX, IN HER OFFICIAL CAPACITY AS

COMMISSIONER, INDIANA STATE DEPT. OF HEALTH

Petitioner

v.

ASHLEE AND RUBY HENDERSON, et al.

__________

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Seventh Circuit

__________

BRIEF OF

THEM BEFORE US

AS AMICUS CURIAE

SUPPORTING PETITIONER

__________

GENE C. SCHAERR

Counsel of Record

JAMES A. HEILPERN*

HANNAH C. SMITH

SCHAERR | JAFFE LLP

1717 K Street NW, Ste. 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ........................................ii

INTRODUCTION & INTEREST OF AMICUS

CURIAE ....................................................................... 1

STATEMENT .............................................................. 2

REASONS FOR GRANTING THE PETITION.......... 3

I. The question presented is an important one that

affects every state and was incorrectly decided

below. ...................................................................... 3

II. Children are harmed when the state forever

deprives them of accurate information about their

biological origins by falsifying birth certificates. .. 8

A. The falsification of birth certificates leaves

children in the dark about their family medical

history. ............................................................ 10

B. The falsification of birth certificates can lead

to identity crises.............................................. 13

C. The falsification of birth certificates

complicates dating and intimacy. .................. 16

D. The falsification of birth certificates places

children at a higher risk of abuse. ................. 20

E. Falsified birth certificates cause children to

feel as if their rights are not important to the

state. ................................................................ 23

CONCLUSION .......................................................... 27

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ariel G. v. Greysy C.,

20 N.Y.S.3d 145 (N.Y. App. Div. 2015) ................... 5

Henderson v. Box,

947 F.3d 482 (7th Cir. 2020) ................................ 4, 6

Obergefell v. Hodges,

576 U.S. 644 (2015) .............................................. 3, 7

Pavan v. Smith,

137 S. Ct. 2075 (2017) .......................................... 7, 8

Rose & Another v. Secretary of State for Health and

Human Fertilization and Embryology Authority

[2002] EWHC (Admin) 1593 (Eng.) ...................... 26

Statutes

Ind. Stat. ch. 13. .......................................................... 9

Ind. Stat. ch. 24. .......................................................... 9

Other Authorities

Allegra Stratton, Twins Separated at Birth Married

Each Other, The Guardian (Jan. 11, 2008) ........... 17

Ann Young et al., Discovering Misattributed Paternity

in Living Kidney Donation: Prevalence, Preference,

and Practice, 87 Transplantation 1427 (2009). ...... 5

Anne Case & Christina H. Paxson, Mothers & Others:

Who Invests in Children’s Health?, Nat’l Bur. of

Econ. Research (2000) ............................................ 22

Count Me In!: The Global Campaign for Universal

Birth Registration .................................................... 8

iii

Donor conceived people present at United Nations, We

Are Donor Conceived (2019) .............................. 4, 11

Elizabeth Marquardt, Norval D. Glenn, and Karen

Clark, My Daddy’s Name is Donor: A New Study of

Young Adults Conceived Through Sperm Donation,

Institute for American Values (2010).. 13, 18, 19, 20

Ellie, Now it is my turn to speak. I hate my conception,

Them Before Us (Jan 2, 2018) ............................... 19

Helen Carrol, How would YOU feel to find you are a

sperm donor’s child? These women say it shattered

their lives, Daily Mail (Jun. 24, 2015) ................... 14

Keith Zvoch, Family type and investment in education:

a comparison of genetic and stepparent families, 20

Evolution & Human Behavior 453 (1999)............. 22

Kirsten van Houdt, et. al., Stepparental Support to

Adult Children: The Diverging Roles of Stepmothers

and Stepfathers, 82 Journal of Marriage and Family

639 (2019) ............................................................... 22

Martin Daly & Margo Wilson, An Assessment of Some

Proposed Exceptions to the Phenomenon of

Nepotistic Discrimination Against Stepchildren, 38

Ann. Zool. Fennici 287, 287 (2001) ........................ 22

Matt Roper, Woman tracks down the mother who

abandoned her as a baby … only to realise she has

unwittingly married her BROTHER, Daily Mail

(Aug. 6, 2014) .......................................................... 17

Matthew D. Bramlett and Laura F. Radel, Adverse

Family

Experiences

Among

Children

in

Nonparental Care, 2011–2012, Center for Disease

Control (2014) .......................................................... 3

iv

Nina Williams-Mbengue, Adult Adoptee Access to

Original Birth Certificates, National Conference of

State Legislatures (May 15, 2019) .......................... 9

Sophie Goodchild & Amy Iggulden, Twins Marry Each

Other, London Evening Standard (Jan. 11, 2008) 20

Testimonials of Individuals with Falsified Birth

Certificates ..................................................... passim

Theresa Porter, The Wicked Stepmother: Fairy Tales,

Child Abuse, and Historical Epidemiology, in

Retold Feminine Memoirs: Our Collective Past and

Present 39–49 (2013) ............................................. 22

United Nations Convention on the Rights of the Child

.................................................................................. 4

W. Bradford Wilcox, Suffer the Little Children:

Cohabitation and the Abuse of America’s Children,

Public Discourse (April 22, 2001) .......................... 22

We Are Donor Conceived 2019 Survey Results, We Are

Donor Conceived (May 1, 2019) ....................... 13, 17

Wendy Wang, Who Cheats More? The Demographics of

Infidelity in America, Institute of Family Studies

(Jan. 10, 2018) .......................................................... 5

Zave Fors, I Was Artificially Created, We Are Donor

Conceived ............................................................... 18

INTRODUCTION

& INTEREST OF AMICUS CURIAE1

The overarching issue in this case is whether the

States have authority to make policy judgments about

how best to balance the sometimes-competing

interests of parents and children in the realm of family

law. The decision below imposes a one-size-fits-all

approach in the context of children born into same-sex

marriages, forcing states to prioritize the desires and

interests of adults over those of children when

designing birth certificate regimes. But states should

be free to balance the competing interests of children

and their parents or legal guardians on their own and,

should they choose, to design a system that gives

greater weight to the interests of children.

There is no denying that a child, especially one who

has grown to adulthood, has a legitimate interest in

knowing who his biological parents are. Decades of

experience with children who have been adopted or

donor-conceived demonstrate that children suffer

when deprived of accurate information about both

biological parents. It affects every aspect of their lives:

their health, their romantic relationships, and their

identity formation. In addition, automatically

extending parental rights to non-biologically related

No one other than Them Before Us and their counsel

authored any part of this brief or made a monetary contribution

to fund its preparation or submission. All parties have consented

in writing to its filing.

1

2

caregivers can also put children at greater risk of

abuse and neglect. Further, individuals whose birth

certificates do not list both biological parents often feel

that the certificate has been intentionally “falsified.”

They overwhelmingly wish the state had insisted on

recording their biological parentage. The state should

be free to do so.

This Court need not deny the legitimate interests

of spouses to conclude that the task of balancing these

interests should be left to the states. A state should be

allowed to give greater weight to the needs and

interests of children and to create a birth-certificate

system based on biology rather than marital status.

The Court should grant the present petition to

reaffirm the States’ legitimate authority in this area.

Amicus Them Before Us is a non-profit

organization that advances social policies that

encourage adults to actively respect the needs and

interests of children. Amicus takes no position in this

case on questions of fit or tailoring.

STATEMENT

This case involves a challenge to Indiana’s birthcertificate system. Indiana requires that a child’s

biological mother and biological father be listed on a

child’s original birth certificate. The statute contains

a rebuttable presumption of paternity for a birth

mother’s husband. Plaintiffs in this case are married

lesbian couples who claim the law violates the

Fourteenth

Amendment

because

the

same

3

presumption is not extended to a birth mother’s wife.

The Seventh Circuit agreed.

REASONS FOR GRANTING THE PETITION

I. The question presented is an important one

that affects every state and was incorrectly

decided below.

The Court should grant certiorari to protect the

authority of states to make policy judgements that

prioritize the interests of children over those of the

adults who raise them, a right that is jeopardized by

the Seventh Circuit’s egregious misinterpretation of

this Court’s precedent. Given the extraordinarily

important issues arising out of this Court’s mandatory

legalization of same-sex marriage in Obergefell v.

Hodges, 576 U.S. 644 (2015), there is no reason to wait

for a circuit split.

1. Children have an interest in knowing the

identity of both of their biological parents. Indeed,

research has shown that children generally fare best

when raised by their married biological mother and

father.2 Even when this ideal is not possible—because

of death, divorce, abandonment, adoption, or the use

of third-party reproduction—children have an interest

in at least knowing, at some point, the identity of their

biological parents. They suffer when they are forced to

2 See, e.g., Matthew D. Bramlett and Laura F. Radel, Adverse

Family Experiences Among Children in Nonparental Care, 2011–

2012, Center

for

Disease

Control (2014), https://www.cdc.gov/nchs/data/nhsr/nhsr074.pdf.

4

live their lives in ignorance of their genetic origins. For

this reason, states have a compelling government

interest in creating birth-certificate systems that

accurately document a child’s biological parentage.

This interest finds ample support in international

opinion, which, although not binding on the Court, is

instructive. As the United Nations Convention on the

Rights of the Child states, a child has a right to be

“registered immediately after birth and … as far as

possible, the right to know … his or her parents.” U.N.

Conv. Art. Rights of Child 7. On the thirtieth

anniversary of this Convention, one donor-conceived

individual admonished the United Nations, “Identity

should not literally be a corporate or state secret.”3

2. But the Seventh Circuit decision below declared

that biology-based birth-certificate systems designed

to protect these interests are unconstitutional—at

least to the extent that they include a rebuttable

presumption of paternity for a birth-mother’s husband

that is not extended to a birth-mother’s wife. Although

the panel acknowledged that “the Fourteenth

Amendment does not forbid a state from establishing

a birth-certificate regimen that uses biology rather

than marital status to identify parentage,” Pet. App.

2a, its opinion effectively forbids states from taking

basic facts about human biology into consideration

3 Donor conceived people present at United Nations, We Are

Donor

Conceived

(2019)

https://www.wearedonorconceived.com/homepage-featuredarticle/donor-conceived-people-present-at-the-united-nations/.

5

when crafting such a biology-based system. The

opinion does so by forcing states to extend the

presumption of paternity to a birth mother’s wife even

though the presumed fact is never true.

The reason that the presumption of paternity is

“one of the strongest and most persuasive known to

law”4 is biology: all but a miniscule fraction of children

are conceived through sexual intercourse between a

man and a woman, and the overwhelming majority of

married women do not have sexual relations with

anyone other than their husbands.5 As a result, for

opposite-sex married couples, the presumption of

paternity unites a child with both biological parents

nearly 100% of the time. Research indicates that cases

of misattributed paternity are rare—somewhere

between one and three percent.6 These exceptional

cases are the reason the presumption is rebuttable.

The opposite is true for same-sex couples. It is no

slight to them to say that biology itself always rebuts

4 Ariel G. v. Greysy C., 20 N.Y.S.3d 145, 147 (N.Y. App. Div.

2015) (internal citations omitted).

5 See Wendy Wang, Who Cheats More? The Demographics of

Infidelity in America, Institute of Family Studies (Jan. 10, 2018)

(finding only 11% of married women age 18–39 report ever having

sex with someone other than their husband while married),

https://ifstudies.org/blog/who-cheats-more-the-demographics-ofcheating-in-america.

6 See Ann Young, et al., Discovering Misattributed Paternity

in Living Kidney Donation: Prevalence, Preference, and Practice,

87 Transplantation 1427 (2009).

6

the presumption.7 A human female is obviously not

capable of fathering a child.8 So too, when a child is

born to a same-sex couple, a third-party is always

involved. Extending the presumption of paternity to a

birth mother’s wife, as the Seventh Circuit now

requires, is therefore nonsensical and—from a

children’s interest perspective—harmful because it

always results in the child’s being severed

permanently from one of his or her biological parents.

Losing a parent is always tragic. That is why under

Indiana law, the birth mother’s spouse—regardless of

sex—should appear on the birth certificate only if that

person is a biological or has undergone the rigorous

vetting of the adoption process. See Pet. 13–15.

3. Contrary to the Seventh Circuit’s conclusion,

this Court’s precedent does not require states to ignore

biological reality when designing laws regulating

In this respect, there should be no equal protection

violation. Even if the presumption is extended to a birth mother’s

wife, biology immediately rebuts it.

7

This is true even in cases like the Philip-Stackman

Plaintiffs here where the birth mother carried and gave birth to

a child created using not her own egg, but that of her wife.

Paternity (the contribution of genetic material through a sperm)

is not the same thing as maternity (the contribution of genetic

material through an egg). A third-party sperm donor was still

used to create the Philip-Stackmans’ child. The PhilipStackmans’ situation therefore implicates Indiana’s common law

presumption of maternity, rather than its statutory presumption

of paternity. Contrary to the Seventh Circuit’s opinion, in such

situations both women are not “biological mothers.” Pet. App. 2a.

The egg donor is the actual biological mother. The birth mother

is a surrogate.

8

7

birth certificates. To be sure, in Obergefell, this Court

held that same-sex couples have a right to the same

“constellation of benefits that the States” have

extended to opposite-sex couples through the

institution of marriage. 576 U.S. at 656. But the Court

has never held that the right to appear on the birth

certificate of a spouse’s child must be included in that

“constellation of benefits.” Ibid. On the contrary, it has

specifically held “the States are in general free to vary

the benefits they confer on all married couples.” Id. at

670–671.

That freedom was implicit in Pavan v. Smith, 137

S. Ct. 2075 (2017). There, Arkansas’s birth certificate

regime was declared unconstitutional only because

the state had “chosen to make its birth certificates

more than a mere marker of biological relationships.”

Id. at 2078. The state required the birth mother’s

husband to be listed as the father, even when all

parties knew that was a lie. It could not be rebutted.

But Indiana has not made that choice. Rather, it

designed its birth-certificate system to serve the

interests of children rather than to affirm the birthmother’s romantic relationship. The opinion below

overrides that legitimate choice, and thereby hinders

states from protecting children’s interests to accurate

information about their biological origins. As

Archbishop Desmond Tutu has explained, “[A birth

certificate is] a small little paper but it actually

establishes who you are and gives access to the rights

8

and privileges, and the obligations, of citizenship.”9

But the Seventh Circuit’s decision requires states to

transform birth certificates into a second marriage

certificate, prioritizing what the adults wish the child

was—the product of two adults of the same sex—over

who (s)he actually is: the child of a particular man and

a particular woman.

II. Children are harmed when the state forever

deprives them of accurate information about

their biological origins by falsifying birth

certificates.

The prioritization of adult desires over the

interests of children—and the resulting falsified birth

certificates—long predates the debate over same-sex

marriage. As Pavan demonstrates, since 1947

Arkansas has required the spouse of the birth mother

to be listed as the parent of the child even in instances

where all parties involved know that is a lie—thus

depriving some children forever of their right to know

their biological parentage. Elsewhere, when a child is

adopted at birth, the adoptive parents are listed on a

reissued birth certificate, and the original certificate

listing the biological parents is often sealed

9 Count Me In!: The Global Campaign for Universal Birth

Registration

4,

https://americasns.org/wpcontent/uploads/2020/01/count_me_in__the_global_campaign_for_universal_birth_registration_plan_in

ternational_-_engelstalig.pdf (emphasis added).

9

permanently10—thus depriving adopted children and

their adoptive parents of critical information about the

child’s genetic origins.11

Consequently, we have decades of experience with

the impact of falsified birth certificates on the health

and general well-being of children. Regardless of how

loving a home the child is raised in, being permanently

deprived of accurate information about one’s biological

parentage has consequences that can last long into

adulthood. To demonstrate this, we collected the

stories of individuals who had their birth certificates

falsified for one reason or another and asked them

about their experiences.12 The respondents represent

the full panoply of American family life: Some were

raised by opposite-sex couples, others by same-sex

couples, and others still by single parents. Some were

10 In Indiana, when a child is adopted a new birth certificate

listing the adoptive parents rather than the biological parents is

generated and the original birth certificate is sealed. Ind. Stat.

ch. 13. Interested persons, including adoptees and their adoptive

parents, may request release of sealed adoption information from

any court with probate jurisdiction in Indiana. Ind. Stat. ch. 24.

See Nina Williams-Mbengue, Adult Adoptee Access to

Original Birth Certificates, National Conference of State

Legislatures

(May

15,

2019),

https://www.ncsl.org/research/human-services/adult-adopteeaccess-to-original-birth-certificates.aspx.

11

12 Those stories that are not otherwise available online have

been made available for the Court’s convenience. Testimonials of

Individuals

with

Falsified

Birth

Certificates,

https://tinyurl.com/y6qcjlnt (last updated Oct. 28, 2020)

[hereinafter “Testimonials”].

10

adopted, others conceived using donor sperm, and

others conceived the old-fashioned way. Some

maintain close relationships with the parents who

raised them, others are estranged. Regardless of

background, the respondents spoke with one voice in

affirming that a falsified birth certificate that

permanently deprives them of accurate information

about their parentage has affected virtually every

aspect of their lives. Surely, the state has a legitimate

interest in creating a birth-certificate system that

minimizes these harms.

The sections that follow address the harms most

frequently reported by the individuals we surveyed:

(1) deprivation of complete family medical histories;

(2) difficulty in identity formation; (3) fears of

accidental incest; and (4) increased exposure to abuse

and neglect. Finally, we highlight the fact that the

respondents in our survey feel the falsification of their

birth certificates shows that the state does not care

about their interests.

A. The falsification of birth certificates

leaves children in the dark about their

family medical history.

“Every year I learn about a new problem”—

Falsified birth certificates deprive children of a

complete health history. Jo Lloyd was one of many

donor-conceived adults to testify on behalf of the donor

conceived community at the United Nations last year.

She has a congenital heart defect called Tetralogy of

Fallot, which is hereditary in a small number of cases.

11

But her parents always told her and her doctors “that

there was no history of heart issues on her father’s

side.” And yet, “[a]ged 54, I discovered that I was

donor conceived. My father was Mr. Anonymous.

Amidst the shock of discovery was the trauma of

knowing I had been given inaccurate medical history

all my life. This was incredibly scary.”13

Gregory Loy’s experience demonstrates why.14 He

was conceived through an anonymous sperm donor.

Like Lloyd, his birth certificate lists his mother’s

husband as his father, a man he believed to be his

biological father for the first three decades of his life.

When the truth came out, the revelation shattered

him. To deal with the stress, he “went through a period

of alcohol substance abuse.”15 In his own words, “[i]t

nearly cost me my career and my family. The irony …

is that had I known who my biological father was … I

would have known that there was a family history of

alcohol dependency. … I was denied critical medical

information because I didn’t even know it existed.”16

Theodore expressed similar frustrations.17 He was

raised by a loving lesbian couple. Although they

13 Donor conceived people present at United Nations, supra

note 3.

14 Testimonials, supra note 12, at 1a–6a.

15 Id. at 2a.

16 Ibid.

Testimonials, supra note 12, at 7a–11a. Theodore

requested that his last name be withheld for privacy purposes.

17

12

separated when he was ten, he remains close to both

his biological mother and his “non-bio mom.”18 Only

his biological mother is listed on the birth certificate.

Because he was “conceived via a sperm bank,” no

father is listed, and he knows next to nothing about

him to this day—a fact that has complicated his efforts

to treat his own underlying medical conditions:

Every year I learn about a new problem that I

wish I had known about sooner. The severity of

my scoliosis could have been mitigated had I

known it was a genetic issue on my father’s side

…. I have no idea if the man is alive and what

cancers or other conditions he may suffer from.

This information is crucial, and I’m denied

access to it for his right to have anonymously

sold his sperm.19

Theodore continues, “I want to know his health history

and who his kids are and not much else. I don’t want

to go to talk to him, go to baseball games or sue him

for back child support, but I want to know who he is.”20

The need for accurate medical information is a top

concern for children created through sperm-and-egg

donations. Ninety-nine percent of donor-children

believe they should have access to their donor’s

18 Id. at 7a.

19 Id. at 9a.

20 Ibid.

13

medical history.21 Having accurate birth certificates

that list the identities of both biological parents

ensures that children receive (at least eventually) the

information they need for life-long health.

B. The falsification of birth certificates can

lead to identity crises.

“These absences haunt and recirculate throughout

my life”—Children who are deprived of accurate

information about their biological origins often

struggle with identity formation, torn between the

family they were raised by and their desire to know

more about their biological parents. They often feel

guilty seeking out such information, afraid that it will

hurt the parents who raised them. According to the

landmark study My Daddy’s Name is Donor, over half

(53%) of donor-conceived children agree that “I have

worried that if I try to get more information about or

have a relationship with my sperm donor, my mother

and/or the father who raised me would feel angry or

hurt.”22

We Are Donor Conceived 2019 Survey Results, We Are

Donor

Conceived

(May

1,

2019),

https://www.wearedonorconceived.com/uncategorized/we-aredonor-conceived-2019-survey-results/.

21

22 Elizabeth Marquardt, Norval D. Glenn, and Karen Clark,

My Daddy’s Name is Donor: A New Study of Young Adults

Conceived Through Sperm Donation 7, Institute for American

Values

(2010),

http://americanvalues.org/catalog/pdfs/Donor_FINAL.pdf.

14

For example, when Joanna Rose was eight years

old, she walked in on her father sobbing alone in the

family room. Concerned, she asked what was wrong.

He took her on a walk in the park where he confessed

that he was not her biological father. Despite the fact

that he was listed on her birth certificate, she had

been conceived using donor sperm. “Instead of

thinking about what this meant for me,” she explains,

“I felt very responsible for my parents’ feelings. I

wiped away my father’s tears and told him: ‘Don’t

worry, you are the only father I know, and I love

you.’”23 And while that remains true, the “invisible

absence” of her biological father—and the fact that she

knows nothing about him—“burdens and impinges on

my welfare, it troubles me.”24 As she put it:

These absences haunt and recirculate

throughout my life; they were there when I was

a child trying to make sense of my own

reflection and physique that was so different to

those around me. I surely resembled those that

weren’t visible to me. I felt such pressure to

celebrate others’ heritage, be that Jewish or

aristocracy, as both were in my immediate

family. These were imbued with significance,

23 Helen Carrol, How would YOU feel to find you are a sperm

donor’s child? These women say it shattered their lives, Daily Mail

(Jun. 24, 2015) https://www.dailymail.co.uk/femail/article3138016/How-feel-sperm-donor-s-child-women-say-shatteredlives.html; see also Testimonials, supra note 12, at 12a–15a.

24 Testimonials, supra note 12, at 12a.

15

while I was being intensely coerced to be

silenced about the loss or falsification of my own

identity, genetics, and heritage.25

For Joanna, the loss is now multigenerational. “Now I

have children and our shared medical, social, and

personal heritage is absent yet important to them

too.”26

Gregory Loy experienced similar pain when he

discovered well into adulthood that his mother’s

husband was not his biological father. The “discovery

of the deception of [his] birth”—aided and abetted by

the government who issued his birth certificate—

caused his “entire identity [to be] torn apart.”27

One half of my genetic makeup, affecting traits,

aptitudes, likes and dislikes, health, etc. was

completely unknown. It has been a bewildering

experience, not unlike feeling like you are lost

at sea in a life raft with nobody to call to for

help. I felt alone, as the two people I was

supposed to trust in this world, my mother and

father, had perpetrated a three decade lie and

were still unwilling to provide information.

Mr. Loy then explains the psychological impact of his

falsified birth certificate:

25 Id. at 12a–13a.

26 Id. at 13a.

27 Testimonials, supra note 12, at 1a.

16

To add to the challenge of finding my identity,

there are no legal documents in existence to tie

me to my real identity. My birth certificate lists

my social father, which according to the state is

a legal definition, but it left me feeling like an

illegitimate member of society.

Every

government document I have ever filled out

that required me to list my father’s name,

including passport applications, security

clearance

questionnaires,

marriage

applications, the list goes on … felt like an

unwitting deception on my part. Nothing I had

ever done in that regard was truth, and that is

because that truth was stolen from me at the

beginning of life.28

Yet the Seventh Circuit has made it so that an

increasing number of children will be raised without

ever knowing even the identity of one of their

biological parents.

C. The falsification of birth certificates

complicates dating and intimacy.

“Dating is hard enough without having to

genetically screen all my Tinder matches”—Falsified

birth certificates also increase the risk of accidental

incest. For example, Adriana is a Brazilian woman

who was abandoned by her mother at the age of one.

In 2004, she met and fell in love with Leondro. After

seven years together, Leondro discovered that the

28 Id. at 1a–2a.

17

woman he thought was his mother was actually his

stepmom: His biological mother, like Adriana’s, had

abandoned him when he was a small child. This

revelation prompted the couple to seek out their

biological mothers together. With the help of a local

radio program, Adriana reconnected with her birth

mother, and discovered in the process that Leondro—

her sexual partner for almost a decade and the love of

her life—was actually her younger brother.29

The same thing happened to a British couple in

2008. Both were adopted and, as such, neither had

their biological parents listed on their birth

certificates. Sometime after they were married, they

discovered not only that they were siblings, but twins,

and had to have their marriage annulled.30

Fears of accidently dating or marrying a relative

are only amplified with children of third-party

reproduction. It’s one of the many reasons why donorconceived children oppose anonymous sperm

donations.31 Many of these children have dozens to

29 Matt Roper, Woman tracks down the mother who

abandoned her as a baby … only to realise she has unwittingly

married her BROTHER, Daily Mail (Aug. 6, 2014),

https://www.dailymail.co.uk/news/article-2718216/Womantracks-mother-abandoned-baby-realises-unwittingly-marriedBROTHER.html.

30 Allegra Stratton, Twins Separated at Birth Married Each

Other,

The

Guardian

(Jan.

11,

2008),

https://www.theguardian.com/uk/2008/jan/11/allegrastratton.

31 We Are Donor Conceived 2019 Survey Results, supra note

21.

18

hundreds of half-siblings who often live in the same

area.

For Zave Fors it could be up to a thousand. “I went

to high school with a half-brother and didn’t even

know until years later. Due to the quantity of siblings

and the fact that many donor-conceived people aren’t

aware that they’re donor-conceived, I have to worry

about accidental incest. Dating is hard enough

without having to genetically screen all my Tinder

matches.”32

As these stories demonstrate, the risk of

inadvertent incest weighs heavily on those who lack a

complete knowledge of their biological origins. Recent

research shows that forty-six percent of donor

offspring and seventeen percent of adopted adults

have worried that they might be unknowingly related

to someone to whom they were romantically attracted.

A similar percentage—forty-three percent of adult

donor offspring and sixteen percent of adopted

adults—have feared having sexual relations

unknowingly with someone to whom they are

biologically related.33 As one donor-conceived woman

explained,

I was … shocked to find out what a huge

number of donor-conceived half siblings I

32 Zave Fors, I Was Artificially Created, We Are Donor

Conceived,

https://www.wearedonorconceived.com/personalstories/i-was-artificially-created/ (last visited October 28, 2020).

33 Marquardt, supra note 22.

19

probably have living near me. At least 20,

maybe over 50 … They are unlikely to have

been told they were donor conceived. … I’m

grateful that I didn’t accidentally marry one of

them, and I worry that my own children will

accidentally enter into a romantic relationship

with one of their many (hundreds, maybe?) of

cousins. They won’t know they are related

without DNA testing. Can you imagine having

to screen dates for potentially being your

unknown cousin?34

These fears are especially pronounced for certain

sub-groups, such as the donor-conceived children of

lesbians. As one study put it, “the fact that lesbian and

gay parents tend to concentrate in lesbian and gayfriendly cities and neighborhoods,” means that

children living near each other and approximately the

same age may have had parents who used the same

local sperm bank and—perhaps because of cultural

similarities and shared interests—were unknowingly

drawn to the same sperm-donor profile.35 This

complicates having a crush on the kid down the street.

The study further observes that “[t]he same social

network argument can be made about the

independent, alternative-life style embracing women

who might opt for being a single mom by choice and

who move in circles with other like-minded

34 Ellie, Now it is my turn to speak. I hate my conception,

Them Before Us (Jan 2, 2018), https://thembeforeus.com/ellie/.

35 Marquardt, supra note 22.

20

mothers.”36 One such woman has “concluded that in

the future her son, who is currently still a [child], will

simply have to have genetic testing with any girl he

seriously considers having sex with.”37

A system like Indiana’s, that requires biological

parents to be listed on a birth certificate and makes it

illegal to falsify this information, can ameliorate these

concerns. As David Alton, a former member of the

British Parliament and later a member of the House

of Lords has pointed out, “[t]he right for children to

know the identity of their biological parents is a

human right. There will be more cases [of inadvertent

incest in the future] if children are not given access to

the truth. The needs of the child must always be

paramount.”38

D. The falsification of birth certificates

places children at a higher risk of abuse.

“[A] convicted pedophile is listed on my birth

certificate”—For some children, an inaccurate birth

certificate also connects them to dangerous adults. For

example, Elizabeth Howard was conceived using an

anonymous sperm donor. Her birth certificate lists

her “social father” as her father. However, “[h]e was

36 Ibid.

37 Id. at 34–35.

38 Sophie Goodchild & Amy Iggulden, Twins Marry Each

Other, London Evening Standard (Jan. 11, 2008),

https://www.standard.co.uk/news/twins-marry-each-other6671157.html.

21

convicted of child sex abuse against my brother and

other children and went to prison when I was 13. …

My ‘social father’ who is a convicted pedophile is listed

on my birth certificate and that pains me greatly.”39

Similarly, Tara Westrich’s birth certificate was

knowingly falsified by her mother who listed her

husband of one month as the father, despite knowing

Tara’s father to be the man from her previous

relationship.40 “I was raised by my mother and this

man—a stepfather she passed off as my real father to

me.”41 And being raised without one biological parent

affected her before she even knew the truth: “My

stepfather was verbally abusive … I always felt like I

didn’t love this father in my home the way I thought I

was supposed to love a dad. When I learned the truth

of my parentage, I felt relief. Suddenly, I knew the

reason behind my lack of attachment to him.”42 But

decades later, her birth certificate still causes her

pain. “Since I learned the truth of my paternity, I have

ALWAYS wished that the document recording my

birth was accurate. Even as a 48-year-old woman, I

hate that this piece of paper stating my identity is

inherently wrong.”43

39 Testimonials, supra note 12, at 19a.

40 Testimonials, supra note 12, at 16a–18a.

41 Id. at 16a.

42 Ibid.

43 Id. at 17a.

22

Thankfully, most social parents and stepparents

are not abusive and are doing their best in what are

often

difficult

circumstances.

But

research

demonstrates that biological parents tend to be the

most connected to,44 protective of, 45 and invested in

their children.46 While there are certainly many heroic

stepparents and adoptive parents who deserve praise,

non-biologically-related adults living in the home are

far more likely to abuse, neglect, or kill a child than a

child’s biological parents.47 That’s why adoptive

44 Kirsten van Houdt, et. al., Stepparental Support to Adult

Children: The Diverging Roles of Stepmothers and Stepfathers,

82 Journal of Marriage and Family 639 (2019).

W. Bradford Wilcox, Suffer the Little Children:

Cohabitation and the Abuse of America’s Children, Public

Discourse

(April

22,

2001),

https://www.thepublicdiscourse.com/2011/04/3181/.

45

46 Keith Zvoch, Family type and investment in education: a

comparison of genetic and stepparent families, 20 Evolution &

Human Behavior 453 (1999).

47 See, e.g., Theresa Porter, The Wicked Stepmother: Fairy

Tales, Child Abuse, and Historical Epidemiology, in Retold

Feminine Memoirs: Our Collective Past and Present 39–49 (2013)

(finding stepchildren experience “higher rates of neglect and

abuse as well as higher likelihood of an early death.”); Martin

Daly & Margo Wilson, An Assessment of Some Proposed

Exceptions to the Phenomenon of Nepotistic Discrimination

Against Stepchildren, 38 Ann. Zool. Fennici 287, 287 (2001)

(“Stepparents commit child abuse and homicide at much higher

rates than genetic parents.”); Anne Case & Christina H. Paxson,

Mothers & Others: Who Invests in Children’s Health?, Nat’l Bur.

of Econ. Research (2000) (finding stepchildren less likely to

receive

regular

medical

care)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=228984.

23

parents rightly undergo screening and vetting prior to

child placement. Casually connecting children to

biological strangers on the birth certificate can place

children in risky households and grant parental

authority to adults who are statistically more likely to

abuse or neglect them, or both.

E. Falsified birth certificates cause children

to feel as if their interests are not

important to the state.

“My birth certificate was not created with me in

mind”—Finally, falsified birth certificates leave

children feeling abandoned by not just their missing

biological parents, but also by the government that

enabled, and in some cases mandated, the deception.

Gregory Loy’s response is typical: “My birth certificate

was not created with me in mind.”48 He continues:

Birth certificates are used as tools for state

sponsored lies that support multiple people,

really everyone except the children that they

are about. These certificates enable a legal

record that hides the truth for the parents’

benefit [to] the detriment of the child. They

create an environment that props up the

adoption and fertility industries by giving

parents that false peace of mind that the real

identity is now hidden by [a] legal record. …

This is a system actively hiding a child’s

48 Testimonials, supra note 12, at 5a.

24

fundamental

identity.49

right

to

know

their

own

Ben Smith expressed similar sentiments.50 He was

raised by his biological mother and her wife, both of

whom were listed on his birth certificate. He notes

that the fact “[t]hat my mother’s wife was able to be

listed as my second parent allowed my mother and her

wife to feel affirmed in their perspective … that my

father does not matter, that he doesn’t need to take a

presence in my life”51—that having two moms could

eliminate the need for a dad. It also allowed his father

to remain anonymous and by so doing not “value and

prize what he gave away” and shirk the obligations he

owed to his offspring.52 “So at the end of the day, I’m

left feeling there’s a big disconnect between what

matters and what is actually celebrated, and the

distortion of the birth certificate enabled this to

happen.”53

Over and over, survey respondents expressed

feeling that their interests didn’t matter to the state.

As Theodore put it, “I’m clearly at the bottom of the

pecking order as far as rights are concerned.”54

49 Ibid.

50 Testimonials, supra note 12, at 21a.

51 Ibid.

52 Ibid.

53 Ibid.

54 Testimonials, supra note 12, at 10a.

25

Overwhelmingly, those we surveyed indicated that

they would have preferred that both of their biological

parents be listed accurately on their birth certificates

and that their lives would be significantly different

had it been so. For example, Sarah St. Onge was born

out of wedlock to a mother who intentionally lied

about the identity of her biological father. She was an

incredibly negligent mother.55 But “[b]ecause she

falsified his name, social services was not able to

locate him. I always assumed he was in and out of jail,

or something, because we never received any child

support.”56 It turned out he was actually from a fairly

wealthy family. And “[i]f my bio dad’s real name had

been on my certificate, I believe even if he’d shown no

interest, his family would have. I’ve spoken at length

with his sister who informed me that my paternal

grandfather would have never allowed [me to continue

being abused and neglected by my mother].”57

Similarly, for Joanna Rose—who grew up in a

loving home and has achieved great professional

success as an adult—her falsified birth certificate has

prevented her from “invest[ing] [her] energy and focus

on other areas of … personal security.”58 Instead it has

defined her career. Her Ph.D. dissertation was

entitled “A Critical Analysis of Sperm Donation

55 Testimonials, supra note 12, at 27a–28a.

56 Id. at 27a.

57 Id. at 27a–28a.

58 Testimonials, supra note 12, at 13a.

26

Practices.”59 She was also the lead plaintiff in Rose &

Another v. Secretary of State for Health and Human

Fertilization and Embryology Authority [2002]

EWHC (Admin) 1593 (Eng.), the lawsuit that resulted

in the Queen’s Bench declaring that anonymous sperm

donation violated the European Convention on

Human Rights. These were “all emotionally expensive

appeals to try to explain the significance of this loss to

me and others, and have it responded and corrected.

My energy was not consequently utilised towards

personal stability, finance, and pension due to my

attention being in this.”60 The impact is impossible to

quantify. “I would … not have spent my adult life

hunting for the proverbial ‘needle in the haystack’ and

to resolve injustice. I would have my correct

information and feel supported by the State … rather

than [feel the] State sanctioned and facilitated

deception.”61

These survey responses confirm that a birth

certificate should not serve as a second marriage

license for a parent who chooses to live with someone

other than the child’s other biological parent. States

should be free to prioritize children’s interests and

needs when designing a birth-certificate system.

59 Ibid.

60 Ibid.

61 Id. at 15a.

27

CONCLUSION

The decision below ignores the important

government interest in protecting children. It gives

adults the option of state-sanctioned denial of a child’s

interest in knowing and having access to his/her

biological identity. In these cases, the birth certificate

erases a child’s genetic parentage and replaces it with

someone’s intent to parent. It centers the birth story

on the adults’ emotions, and not the child’s truth. In

other words: it prioritizes alternative facts. If allowed

to stand, the Seventh Circuit’s decision will take

society further down the path of treating children as a

means to fulfill adult desires, rather than encouraging

adults to orient their lives around their children’s

wellbeing.

For these reasons, certiorari should be granted,

and the Seventh Circuit’s decision should be reversed.

Respectfully submitted,

GENE C. SCHAERR

Counsel of Record

JAMES A. HEILPERN*

HANNAH C. SMITH

SCHAERR | JAFFE LLP

1717 K Street NW, Ste. 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

*Practicing pursuant to Rule

49(c)(8).

October 28, 2020