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.