When Sally Sparks and her partner, Heather Dugas, registered as domestic partners at the Multnomah County Building the day the new state law took effect on February 4, Sparks was overdue with their second child.
"It was a good feeling that [the law] went through and we were going to walk into the hospital as domestic partners," Sparks says.
When their son was born on February 10, Sparks and Dugas made sure to bring their certificate of domestic partnership to the hospital, just in case.
"It had only been implemented for a week at the time," Dugas says. Sparks adds: "I was holding my breath to see if it would be as smooth as it was supposed to be."
The law is supposed to give registered same-sex couples the same state rights and responsibilities that marriage laws provide for opposite-sex couples—but it remains to be seen if the separate institution will truly be equal.
Sparks had joined forces with Basic Rights Oregon and others to fight the lawsuit that anti-gay activists filed against the state (they wanted to send the law to the ballot before it was implemented, but didn't gather enough signatures).
In her January 2 declaration requesting intervener status in the lawsuit, Sparks noted that if the domestic partnership law had taken effect as planned on January 1, "we would have been able to have my partner presumed to be our child's second parent and named on our child's birth certificate," says Sparks. The lawsuit delayed the law by over a month, before a federal judge ruled against the anti-gay activists.
The law took effect in time for their son's birth, but the women still ran into red tape. Instead of noting Dugas' name on the birth certificate forms—which had not changed to reflect the new law, and only had spaces for a mother and father—a clerk at Providence St. Vincent Family Maternity Center handed her a separate form. Marked "For informational purposes only. This is not a legal document," the form has spaces for info on the child, mother, and partner. According to a note from the hospital clerk to Sparks, the form is "supplied to the state to be kept with your son's birth certificate."
A December 27 memo from State Registrar Jennifer A. Woodward to hospital birth clerks—which Providence St. Vincent also gave to Sparks—explains the informational form.
According to Woodward, Oregon's "new Electronic Birth Registration System [EBRS] was developed by a commercial vendor" before the legislature passed the domestic partnership law. "There is currently no provision in EBRS for reporting domestic partnership as the relationship between a mother and her partner," Woodward writes. She adds that the Center for Health Statistics is "obtaining a legal opinion from the Department of Justice on the effect of [the domestic partnership law] related to reporting parents on the birth certificate." Until that opinion is received, Woodward wrote, hospital clerks are supposed to use the informational form.
There's already one legal opinion on the books: In July 2007, Multnomah County Circuit Court Judge Eric Bloch ruled in favor of K.D. Parman and Jeanna Frazzini. The two had challenged a pair of state laws that gave parental rights to married couples who had conceived via artificial insemination, but withheld those rights from same-sex couples who could not wed. Judge Bloch ruled that the state laws unconstitutionally discriminated against same-sex couples, and added that the then-impending domestic partnership law would be a remedy.
Woodward says she's been working with the Department of Justice since October, though the governor signed the law on May 9. "We were not told officially that anything was going into effect until October," Woodward says.
"There was not any clear guidance in the law on how we're supposed to handle adding partners to birth certificates," she adds. "The law does not clearly state that state registrars need to add partners to the birth certificate."
She says she has a draft opinion from the Department of Justice, and is scheduling a meeting with attorneys later this week to discuss it. Neither Woodward nor the Department of Justice would disclose the initial opinion, citing attorney-client privilege. In the interim, she issued the memo "to make sure we had a process established to help the birth certificate clerks when the law was supposed to go into effect on January 1." She says she reissued the memo when the law finally took effect in February.
"Quite a few" babies have been born to couples registered as domestic partners, Woodward says, and if the Department of Justice determines that partners like Dugas should be added to the birth certificate, the decision would apply "to anyone who's had a baby since Oregon did registrations of domestic partnership, since February 1."
"We're kind of in a holding pattern right now," says Sparks. "We're waiting to see if we should contact our lawyer, [we're waiting to see] whether or not Heather's name will appear on the birth certificate. It's really frustrating. It means that Heather has no parental rights."
Sparks adds that "we're going to get Heather's name on the birth certificate one way or another," even if it means going to court. They may also do a second-parent adoption regardless of the state's decision, to protect their family outside of Oregon.