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Same-sex couple in WI will get both names on child's birth certificate after legal battle

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A same-sex couple in Wisconsin who had a child in 2015 – but was never issued a birth certificate with both names on it, even though they asked for it – will now get that birth certificate.

And the Wisconsin Department of Health Services got a slap on the wrist for what a judge said was "unconstitutional" behavior.

The suit was brought by Chelsea and Jessamy Torres, who were married in New York in 2012. They opted to have a child through artificial insemination, with Chelsea serving as the birth mother. She gave birth in Wisconsin in March of 2015.

While at the hospital, they filled out the forms to get a birth certificate for their new child, indicating they were married and that both of them were parents. But when they received the birth certificate, it listed only Chelsea's name.

The Torreses, in April of 2015, asked the department for the birth certificate. On May 1, the department said their request was being evaluated. They never got the proper birth certificate, so they filed a lawsuit.

The Wisconsin Department of Health Services argued the two names on a birth certificate are only issued for artificial insemination cases when the spouse signs a form – which Jessamy Torres did not do.

However, Judge Barbara B. Crabb – in a ruling issued Wednesday – said the department had ignored that clause with different-sex couples repeatedly. Choosing to enforce it for a same-sex couple, like it appears they did, would be discriminatory.

“Many same-sex parents can breathe a sigh of relief," said Kyle Palazzolo with Lambda Legal, which represented the Torres, "Now their children will have the security of both parents listed on their birth certificates, a vital document in a family’s day-to-day life."

'Husband' not 'spouse'

There's also a language issue.

Same-sex marriage became legal in Wisconsin in 2014, before the Torreses had their child.

As Crabb wrote, from that point up to May 2 of this year, all of the forms tied to getting a birth certificate still listed only a "husband" – never a "spouse," or some other term not tied to gender. There was no direction to couples, or workers within the health department, about how to handle same-sex couples who had a child during that period.

"Rather, if one were relying solely on the materials provided by the department, it would be reasonable to assume that the department will not provide same-sex couples a two- parent birth certificate under any circumstances in the absence of a court order," Judge Crabb wrote, later adding:

"None of these publications address the question of how a mother with a female spouse should complete the form. Rather, all of the publications rest on an assumption that the second parent is a man."

After May 2, one section indicating whether artificial insemination was used includes the term "husband/spouse," but as the judge wrote, "all other references to the mother’s spouse refer to a “husband” exclusively." The department has also said it's enforcing that signature law on all couples now.

So what happens now

The Torres had asked for basically all same-sex couples to be awarded judgment in the lawsuit. But the judge said that's too broad of a request, so it's a smaller group.

Same-sex couples who conceived a child through artificial insemination, and gave birth from the time gay marriage became legal in Wisconsin through may 2, 2016 – and also did not fill out that one form – should get a two-parent birth certificate from the Department of Health Services.

Those outside that window, this case is too narrow to apply to them, Judge Crabb wrote.

However, she did say the department needs to get its act together.

"The department identifies no reason why it has failed to make the changes that even it acknowledges are necessary to comply with federal law. Same-sex marriage has been legal in Wisconsin since 2014, so there is little excuse for the department to be dragging its feet so long."

She said the department has "failed to make the form more inclusive," and should do so as soon as possible or risk more lawsuits, and mounting costs from those lawsuits.

In any case, Judge Crabb said the Wisconsin Department of Health Service should take "husband" on the form to mean simply "spouse."

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