photo by: Contributed

Lawrence attorney David Brown, left, and the Judicial and Law Enforcement Center, which houses the Douglas County District Court, right.

A recent ruling in Douglas County District Court resulted in a major legal victory for unmarried same-sex couples who have a child together.

A couple in the Lawrence area — Amanda Torbett and Amanda Peterson — recently experienced the birth of their daughter, but were forced to fight through court to have both of their names included on the child’s original birth certificate.

Lawrence attorney David Brown, who represented the couple in court, told the Journal-World that the ruling issued by Judge Sally Pokorny to have both legally recognized on the child’s original birth certificate as the mother of the child appears to be the first in Kansas.

“Same-sex couples face discrimination on many fronts,” Brown said. “The idea that an unmarried couple could have a child and the state could deny one of the parents to be on the birth certificate is outrageous.”

The couple declined to speak to the Journal-World for this story.

The saga began earlier this year when Peterson gave birth to the couple’s child, Arleigh, who was conceived through artificial insemination. After the birth, both women filed necessary paperwork to request that they both be listed as mothers of the child on the birth certificate, as any heterosexual unmarried couple would be granted under the same circumstances.

However, the hospital and state government would not comply with the request. The couple then turned to Brown, who began to work with the state’s Office of Vital Statistics, which tracks deaths and births in the state.

But Brown said the hospital and the state office both said the couple’s request would not be granted because the two women were not married and thus were not legally recognized as both being the mother of the child.

Brown said the refusal appeared to be discriminatory against same-sex couples, since unmarried heterosexual couples would not have to deal with the same issue.

“In every instance where there is a man and a woman who conceive a child one way or another and they go to the hospital and the man signs all the appropriate paperwork, his name is automatically added to the birth certificate for the child, regardless of whether the couple is married or not,” Brown said.

The state offered to provide an amended birth certificate that acknowledged both women as the mothers, while the original birth certificate only recognized Peterson. But Brown said that was not good enough because it could set up other hurdles for the family in the future, specifically because amended birth certificates can “raise questions” as to why the certificate was amended in the first place.

“It creates in some instances some very embarrassing situations for people to explain why their birth certificate had been amended,” he said. “There was no reason in this case for the state to do that two-step process.”

Without the state office reversing course, Brown and the couple pursued legal action, filing a lawsuit that ultimately related to the Kansas Parentage Act.

But prior to that, the couple already had legal precedents supporting their claim. Brown said a Kansas Supreme Court ruling in 2020 included the “same fact patterns.”

In that case, the court found that at the time of birth, if both women say they are parents, they are parents with all of the legal rights and responsibilities that come with it. However, the previous case was a bit different because it focused on a custody dispute between two mothers after their relationship had ended, with one of the women believing she was a co-parent to the child, while the other did not.

Brown said part of the reason the court ruled the way it did in the earlier case is that it has, at least since 2013, read Kansas parentage laws as gender-neutral. Additionally, the law states that if someone claims to be a parent, it is presumed to be true unless there is a conflicting presumption. Brown said there was no conflicting presumption in the case of Torbett and Peterson, because the use of artificial insemination means there was no one to claim to be the father of the child.

“When someone openly and notoriously acknowledges they are a parent, that creates a presumption that they are indeed a parent under the parentage statute,” Brown said.

Pokorny agreed, noting in her ruling that the court reads the law as gender-neutral and both women are presumed to be the parents of the child.

“Two mothers, same sex partners, can both be on the original birth certificate, and all they have to do is follow the statutory procedure as a heterosexual couple would,” Pokorny ruled.

While the state was given 30 days to file an appeal, Brown said he was informed earlier this month that it would not, allowing Pokorny’s ruling to stand.

Brown said he was happy with the ruling, not only for helping the family, but because it appears to be a landmark ruling for same-sex couples in a similar situation who want both of their names on their child’s birth certificate.

“This lawsuit sets a precedent that says when two people sign all of the paperwork required to establish that they are parents of a child, the state has to conform and adopt that finding that they are parents,” Brown said. “While this case involves two women, there are often two men who will be in the same kind of situation.”