Legal Briefs (June 2013)

The NASW Legal Defense Fund celebrated a long-awaited victory in the Iowa Supreme Court case Gartner v. Iowa Department of Public Health.

On May 3, the court ruled that married same-sex couples have the same rights as married opposite-sex couples in applying the presumption of parentage law, where one member of the couple gives birth to a child and the other member of the couple is legally presumed to be the child’s parent and both their names are to be placed on the child’s birth certificate.

In its ruling, the court noted, “It is important for our laws to recognize that married lesbian couples who have children enjoy the same benefits and burdens as married opposite-sex couples who have children. By naming the nonbirthing spouse on the birth certificate of a married lesbian couple’s child, the child is ensured support from that parent and the parent establishes fundamental legal rights at the moment of birth.”

NASW, through its Legal Defense Fund, filed an amicus brief in the case in May 2012. The brief urged the court to affirm the district court’s judgment, ordering the state health department to issue a birth certificate naming both mothers as parents.

The brief noted that research strongly supports that a child’s best interests are met by protection of attachment bonds that naturally form between children and their parents, regardless of genetics and sex of each parent.

A pro bono legal team headed by Lance W. Lange at Faegre Baker Daniels LLP filed NASW’s amicus brief.

NASW, through the LDF, filed an amicus brief in the Court of Appeals for the First District of Texas in the case Berwick v. Wagner, in support of the parental rights of a gay father whose relationship with his child is being challenged in Texas courts.

The case involves former couple Jerry Berwick and Richard Wagner. The pair used assisted reproductive technology to have a child together and have California paternity orders recognizing them both as the child’s legal parents. They are jointly named as the child’s parents on the birth certificate. The couple raised the child together as a couple in Texas until 2008 when Berwick ended the relationship, married a woman, and has since sought to be the child’s only parent.

Berwick is seeking Wagner to be declared a non-parent on the basis that Wagner is not a biological parent.

The amicus brief notes that 30 years of peer-reviewed social science research conclusively establishes that when a child’s attachment relationship with any parent — including a nonbiological parent — is severed, the emotional and psychological harm to the child can be significant.

The brief notes that when a same-sex couple separates, their children will mourn for the absent nonbiological parent just as they would for an absent biological or married parent after separation.

The brief seeks to affirm the trial court’s ruling that Wager be declared a legal parent and reject Berwick’s efforts to declare him a non-parent.

NASW filed an amicus brief in the Ohio 4th District Court of Appeals in the case Ohio v. Clemons. The case involves Astasia Clemons, who gave birth to a healthy baby girl in 2011. The baby’s meconium tested positive for THC, morphine and oxycodone. In 2012, Clemons pleaded no contest to corrupting another with drugs, a felony for which she was sentenced to serve two years in prison.

In her appeal to overturn the conviction, the amicus brief states that if the court upholds Clemons’ conviction, any pregnant woman in Ohio who confides in her health care provider that she has used drugs risks being charged criminally, which would undermine the provider/patient relationship. It argues that the societal interest in protecting maternal and fetal health is “undermined, not advanced, by the judicial expansion of the Corrupting Another with Drugs law to apply to pregnant women who seek to continue their pregnancies to term despite using or being prescribed certain drugs, or having a drug problem.”

Open communication between drug-dependent pregnant women and their health care providers is critical, and courts have long viewed confidentiality as fundamental to this relationship, the brief explains.

It also notes that there is no conclusive evidence that exposure to illegal drugs causes harm that is greater than or different from harm resulting from legal drugs and innumerable actions, conditions and circumstances common to pregnant women.

These and other NASW LDF cases can be found online: Amicus Brief Database.

Legal Defense Fund

The NASW LDF annual report is available online.

2013 cases included 12 favorable court decisions that were reached in the fiscal year in cases in which amicus briefs were filed on behalf of NASW through the LDF.

The topics addressed in NASW’s briefs cover a broad range of issues, such as the death penalty, juvenile justice, post-partum psychosis and criminal sentencing, same-sex marriage, child custody and adoption for same-sex couples, and rights of pregnant women.