DES MOINES — A Polk County judge’s skeptical questioning of the reasons why a lesbian couple cannot both be listed as parents of their stillborn child on a state death certificate left the couple feeling “good” and their lawyer “optimistic” Friday.
The gay rights advocacy group Lambda Legal sued the Iowa Department of Public Health on behalf of Jenny and Jessica Buntemeyer after someone in the department removed Jenny’s name from the 2010 fetal death certificate for the couple’s son, Brayden, who was conceived through in vitro fertilization.
The Davenport couple was married in October 2010 after an Iowa Supreme Court decision allowed same-sex couples to be married in the state.
Jenny had identified herself as Brayden’s “father” on the certificate. Jessica had filled out the form as Brayden’s “mother.” There is no third option on the form.
Lambda attorney Camilla Taylor said the Buntemeyers aren’t asking for Jenny to be named father, but they want the health department to allow same-sex parents an option to have both their names listed.
Iowa law defines a father as a male, but it does not require that the health department list a father on its fetal death certificate forms.
Heather Adams, attorney for the department, said the form is based on other forms in use and it serves the purposes of the department and researchers who use death certificates in their studies.
“You have the tail wagging the dog. Why should the form dictate the law?” Judge Robert Hutchison asked.
Adams replied that the department thinks it has the right to make its own forms “absent a violation of the law” or a change in long-standing past practice.
Hutchison then went after the contention that the forms need to list biological parents for research purposes.
He said the department takes the word of the parent on who the father is, even in cases in which the mother may know it’s untrue.
“How can you justify this on a scientific basis?” Hutchison said of the research argument. “They’re not asking you to list one of these people as the father, and you’re not going to convince me of that.”
Hutchison gave no indication when he would have a decision on the case as he dismissed the hearing.
The Buntemeyers and their attorneys gathered in the courthouse rotunda following the hearing to talk to reporters.
The couple reiterated that they aren’t looking for one to be named father but wanted both of them to be listed as parents. They said they were grateful for all the support they’ve received.
“There’s actually been a lot smaller negative comments than I expected; I expected everybody to be really harsh on us,” Jenny said. “But actually, our support has been amazing. They’ll put up a petition, and they’ll have 800 signatures in 24 hours. I just can’t speak enough about the Davenport community and the nationwide support that we’ve received.”
Jessica is currently pregnant, and the couple is expecting the birth of their son, Liam, in January.
Mike Wiser reports from the Globe Gazette Des Moines Bureau.