Texas Sets Birth and Death Certificate Guidelines for Same-Sex Couples

Aug 12, 2015

Texas Attorney General Ken Paxton avoided contempt of court charges this week by issuing a death certificate to the surviving member of a same-sex married couple that was amended to refer to the men as one another’s husbands, rather than significant others. The AG also said the state would acknowledge same-sex marriages on death certificates and list both same-sex parents on birth certificates going forward.

Updated: Judge Orlando Garcia gave Texas an Aug. 24 deadline to recognize same-sex marriages on death and birth certificates. 

From a KERA report:

In a court order issued Tuesday, U.S. District Judge Orlando Garcia said Texas Attorney General Ken Paxton — who “is in the unique position to ensure the proper implementation of the law across all state agencies” — must also assure the court that the Department of State Health Services has granted any pending applications from same-sex couples for amended death and birth certificates before that deadline.

Leigh Jorgeson visited the Department of State Health Services Wednesday afternoon, where she tried to obtain an amended birth certificate for her older son and an original birth certificate for her newborn son that list both Leigh and her wife Robin as parents. The clerk told Jorgeson there were two options at this time: Either she could wait until the DSHS offices had updated their software to be able to produce the new certificates, or she could obtain certificates today that list her as the father, then get an amended version once the software had updated. Jorgeson says she opted to wait on obtaining her new son's birth certificate, but she did get an amended certificate for her older son that lists her as the child's father.

Original story: Despite a U.S. Supreme Court ruling in June that invalidated Texas’ same-sex marriage ban, Paxton held back on acknowledging a couple’s legal marital status on a death certificate. But, while the state has since corrected that death certificate, an Austin couple seeking a response regarding their newborn son’s birth certificate has yet to hear from the AG’s office.

Leigh and Robin Jorgeson are waiting to be listed as parents on two birth certificates, those of their two young sons. One of their sons was born just last week — Leigh provided the biological material for him while Robin carried him.

“I completed the paperwork that listed me as a presumed parent, when the verification of birth facts was brought back to us I wasn’t listed,” Leigh says. “We had a conversation at the hospital with the registrar there about why I wasn’t able to be included on the birth certificate. And part of the explanation given to me was, because I didn’t have sperm, and I wasn’t related to the child.”

She explained to the registrar that she was, in fact, a biological parent to the newborn, and that her wife Robin was the mother who carried him. The couple were told they needed to wait while the registrar consulted the AG’s office. The following day, Leigh says, the Jorgesons received a phone call letting them know that only the mother who carried the child could be listed on the birth certificate.

The couple’s other son, born about two years ago, was adopted, and despite the Obergefell decision in June, the couple still has not been able to get his birth certificate amended to include both of them as parents.

Ian Pittman, Leigh Jorgeson’s law partner, says he feels “cautiously optimistic” that the state will move forward quickly with a new set of guidelines for the certificates.

“Based off of the timeline that the AG articulated in court [Monday]… we should have the new guidelines and the new policies to review by the beginning of next week, and if those are acceptable, I think those policies and guidelines can go into effect this month,” Pittman says.

Leigh’s name being left off her son’s birth certificate could result in a variety of complications, including not being able to enroll her son on her health plan, not being able to communicate with her son’s doctors, and, if something were to happen to her wife, Leigh might not even be able to maintain custody of her son.

“Not having legal rights with regard to my son puts us both in a lot of jeopardy,” Jorgeson says.

Pittman’s cautious optimism is tempered only by the waiting period as the state prepares to issue its new guidelines for birth and death certificates. He wants to be positive that the state goes as far as it needs to go in providing protections for same-sex married couples and their families.

And if those guidelines don’t go far enough in putting those protections in place, Attorney General Paxton is scheduled to appear for a rescheduled contempt hearing in September.