ELECTRONICALLY FILED
Pulaski County Circuit Court
Larry Crane, Circuit/County Clerk

2015-Dec-01 16:07:30
60CV-15-3153
C06D06 : 13 Pages

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS
SXTH DTVISION
MARISA N. PAVA}I ANd TERRAH D. PAVAN,
individually and as parents, next friends, and
guardians of T.R.P., a minor child

PLAINTIFFS

LEIGH D.W. JACOBS and JANA S. JACOBS,
individually, and as parents, next friends, and
guardians of F.D.J., a minor child

COURTNEY M. KASSEL and KELLY L. SCOTT,
individually, and as parents, next friends, and
guardians of A.G.S., a minor child

CASE NO. 60CV-15-3153

VS.

NATHANIEL SMITH, MD,

MPH,

DEFENDANT

Director of the Arkansas Department of Health,
in his official capacity, and his successors in offrce

MEMORANDT]M OPIIIION
This case was submitted to the court on cross-motions for summary judgment. A hearing
was conducted on Monday, November 23,2015.

At the conclusion of the hearing, the court

orally ordered from the bench that the defendant was to immediately issue amended certificates

of birth to each of the three plaintiff couples evidencing both

spouses as the parents

of their

respective minor children. The court took under advisement all further rulings pending issuance

of a written decision. ^Iltis Memorandum Opinion is issued in conjunction with the Order fied
on even date herewith in this case.

 STIMMARY OF MATERIAL FACTS
The parties have filed cross-motions for sunmary judgment in which each side avers
there are no material facts in dispute.l After reviewing the parties' pleadings the court agrees

with the litigants.
The plaintiffs Pavan are a szrme-sex couple legally married in New Hampshire

in20ll.

The minor child T.R.P. was born in Arkansas in May of 2015. The Pavans completed the birth
certificate form at the hospital indicating they were married and the parents of the minor child.
The Arkansas Department of Health, Bureau of Vital Statistics did not include Marisa Pavan on

the original birth certificate. In July of 2015, the Pavans requested that the birth certificate be
amended to show them both as the minor's parents. The Arkansas Department of Health refused

to amend the birth certificate absent a court order.
The plaintiffs Jacobs are a same-sex couple legally ma:ried in Iowa in 2010. The minor

child F.D.J. was born in Arkansas in June of 2015. The Jacobs completed the birth certificate

form at the hospital indicating they were ma:ried and the parents of the minor child. The
Arkansas Department of Health, Bureau of Vital Statistics did not include Jana Jacobs on the

original birth certificate. In July

of

2015, the Jacobs requested that the birth certificate be

amended to show them both as the minor's parents. The Arkansas Department of Health refused

to amend the birth certificate absent a court order.

Ptaintiffs Kassel and Scott are a same-sex couple who were married on July 1, 2015 in
Arkansas. The minor child A.G.S. was born in January of 2015. Only one of the two plaintiffs
was included on the original birth certificate. Subsequent to their marriage, the plaintiffs Kassel

1

The only disputed fact between the parties is whether without court action in this matter, the minor children of the

plaintiffs can be added to health insurance plans as dependents. The court agrees with the State that such factual
dispute is not material to resolution of the Plaintiffs' constitutional claims by summary proceeding.

 and Scott were told by the Arkansas Department of Health that

it would not amend

the birth

certificate to include both plaintiffs as parents absent a court order.

Wright v. State,60CV-13-2662 md
Smith v. Wright,20ls Ark. 298 (June 26,2015)
The Arkansas litigation challenging the ban on same-sex marriage was filed in Pulaski
County as Wright v. State, 60CY-13-2662. T\e defendant in the present case, Nathaniel Smith,
was also a named defendant in lAright. He was named both times in his official capacity as either

Acting Director or Director of the Arkansas Department of Health. The Bureau of Vital Statistics

is a division of the Arkansas Department of Health and is the state agency charged with
maintenance

of vital records, including the

issuance

of

certificates

of birth and amended

certificates of birth. See, A.C.A. $ 20-18-201.
The defendant appealed the trial court's decision inWright, the case being styled as Smith

v. Wright on appeal. The Arkansas Supreme Court entered an Order dismissing that appeal on
Jwre26,2015. See, Smithv. Wright,2015 fuk.298 (June 26,2015).

The Wright plaintiffs filed a Motion

for

Summary Judgment on February 26,2014. ln

their prayer for relief, the plaintiffs requested that the court issue a pennanent mandatory
injunction as follows:
[R]equiring Defendant Nathaniel Smith, M.D., as interim director of the Arkansas
Department of Health, and his successors, to henceforth issue birth certificates for
chitdren bom of marriages between members of the same sex that were entered
into in other states to reflect that the married parents are the parents of the
children bom of the ma:riage; and, also, requiring said Defendant to issue
amended birth certificates to any married couples of the same sex that previously
gave birth to children in Arkansas to reflect that the married parents are the
parents of the children born of this marriage.

 The trial court in Wright entered Summary Judgment in favor of the plaintiffs on May 9,
2014. On May 15,2014, the trial court issued a Final Judgment and Rule 54(b) Certification.

T\e Final Judgment reads, in relevant part, that:

[I]t is and was the intent of the Order to grant Plaintiffs' Motion for Summary
Judgment without exception and as to all injunctive relief requested therein. In
fact, this was the expressly stated title of the May 9, 2014 Order.
RES JADICATA
The Arkansas Supreme Court recently addressed the principle of res judicata in the case
of Abrahamv. Beck,20l5

tuk. 80,456 S.W.3d 744,2015 LEXIS

88, where

it stated:

The concept of res judicata has two facets, one being issue preclusion and the
other claim preclusion. Huffman v. Alderson, 335 Ark. 411,414,983 S.W.2d 899,
901 (1998) Collateral estoppel, also known as issue preclusion, bars
relitigation of issues of law or fact previously litigated by a party. Johnson v.
(Jnion Pac. R.R.,352 Ark. 534, 544,104 S.W.3d 745,750 (2003). The elements
of collateral estoppel are as follows: (l) the issue sought to be precluded must be
the same as that involved in the prior litigation; (2) the issue must have been
actually litigated; (3) it must have been determined by a valid and final judgment;
and (a) the determination must have been essential to the judgment. Id. In
Johnson v. [Jnion Pacific R.R., this court adopted the offensive use of collateral
estoppel, which prevents a defendant from relitigating a defense, approved by the
United States Supreme Court in ParHane Hosiery Co., Inc. v. Shore,439 U.S.
322,99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). This court held that the offensive use
of collateral estoppel should be available only in limited cases, and that the trial
court should be given broad discretion to determine if it should be applied.
Defendant Smith has raised the issue that Judge piazz.s.'s Final Judgment didn't strictly
comply with Rule 65(d) of the Arkansas Rules of Civil Procedure concerning the specificity

of

injunctive language. This is an issue that could have been and should have been raised by the
defendant Smith in the appeal inWright. When the Arkansas Supreme Court dismissed Wright as
being moot in light of the decision in Obergefell v. Hodges, 567 U.S.

(2015), the defendant

Smith again had the opportunity to point out to the Court that all of the issues involved in the

4

 injunction had not been conclusively resolved by Obergefel/. Collateral attacks on judgments
only allowed if there are allegations of fraud or lack ofjurisdiction.2

It is clear with respect to the claims of the plaintiffs

Pavan and Jacobs that the issues

before the court now were fully and completed litigated in the Wright case, and that the Wright

injunction is res judicata and binding upon the defendant Smith.

DECLARATORY JT]DGMENT AS TO
THE CONSTITUTIONALITY OF
A.C.A. S20-18-401and A.C.A. 520-18-406
The plaintiffs seek declaratory judgment alleging that two statutes addressing birth
certificates are unconstitutional in whole or part pursuant to the United States Supreme Court
decision in Obergefell.The subject statutes are A.C.A. $ 20-18-401 and A.C.A. $ 20-18-406.3

2

See, Fannie Mae v.

Taylor,20l5 Ark. 78,455 S.V/.3d 8l l, 2015 fuk. LEXIS 79,

and

Powers v. Bryant,3O9 Ark.

568, 57 t, 832 S.W.2d 232, 233 (1992)_

3

20-18-+0t. Birth Registration generally.
A certificate of birth for each live birth which occurs in this state shall be filed with the Division of Vital
Records of the Department of Health, or as otherwise directed by the State Registrar of Vital Records, within ten
(10) days after the birth and shall be registered if it has been completed and filed in accordance with this section.
(b) When a birth occurs in an institution or en route thereto, the person in charge of the institution or his or her
authorized designee shall obtain the personal data, prepare the certificate, certiff that the child was born alive at the
place, time, and date stated on the certificate either by signature or in an approved electonic process, and file the
certificate as directed in subsection (a) ofthis section. The physician or other person in attendance shall provide the
medical information required by the certificate within seventy-two hours after the birth.
(c) When a birth occurs outside an institution:
(1) The certificate shall be prepared and filed by one (l) of the following in the indicated order of priority:
(A) The physician in attendance at or immediately after the birth, or in the absence of such a person;
(B) Any other person in attendance at or immediately after the birth, or in the absence of such a person; or

(a)

(C) The father, the mother, or in the absence of the mother, the person in charge of the premises where the
birth occurred; and

(2)
(d)

The division shall determine what evidence may be required to establish the fact of bith.
When a birth occurs on a moving conveyance within the United States and the child is first removed from
the conveyance in this state, the birth shall be registered in this state and the place where it is first removed shall be
considered the place of birttr. When a birth occurs on a moving conveyance while in international waters or air space
or in a foreign county or its air space and the child is first removed from the conveyance in this state, the birth shall
be registered in this state, but the certificate shall show the actual place of birth insofar as can be determined.
For the purposes of birth regisfiation, the mother is deemed to be the woman who gives birth to the child,
unless otherwise provided by state law or determined by a court of competent jurisdiction prior to the filing of the
birth certificate. The information about the father shall be entered as provided in subsection (f) of this section.
If the mother was married at the time of either conception or birth or between conception and birth the
name of the husband shall be entered on the certificate as the father of the child, unless:
(A) Paternity has been determined otherwise by a court of competent jurisdiction; or

(e)

(fxl)

 (B) The mother executes an affrdavit attesting that the husband is not the father and that the putative father
is the fatler, and the putative father executes an affrdavit attesting that he is the father and the husband
executes an affidavit attesting that he is not the father. Affidavits may be joint or individual or a
combination thereof, and each signature shall be individually notarized. In such event, the putative father
shall be shown as the father on the certificate and the parents may give the child any surname they choose.
If the mother was not married at the time of either conception or birth or between conception and birth, the
name of the father shall not be entered on the certificate of birth without an affidavit of patemity sigred by the
mother and the person to be named as the father. The parents may give the child any surname they choose.
[n any case in which paternlty of a child is determined by a court of competent jurisdiction, the name of the
father and surname of the child shall be entered on the certificate of birth in accordance with the fmding and order of
the court.
If the father is not named on the certificate of birth, no other information about the father shall be entered
on the certificate.
Either of the parents of the child or other informant shall veriff by sigrature or electronic process the
accuracy of the personal data to be entered on the certificate in time to permit the filing of the certificate within the
ten (10) days prescribed in this section.
(h) Certificates of birttr filed after ten (10) days but within one (l) year from the date of birth shall be registered on
the standard form of live birth certificate in the manner prescribed in this section. Such certificates shall not be
marked "DELAvED". The state registrar may require additional evidence in support of the facts of birth.

(2)
(3)
(4)
(g)

20- I 8406. New certificates.

(a) The State Registrar of Vital Records shall establish a new certificate of birth for a person born in this state when
he or she receives the following:
(l) A certificate ofadoption as provided in 20-18-405 [repealed], or a certificate ofadoption prepared and filed in
accordance with the laws of another state or foreign country, or a certif,red copy of the decree of adoption, together
with the information necessary to identify the original certificate of birth and to establish a new certificate of birth.
However, a new certificate of birth shall not be established if so requested by the court decreeing the adoption, the
adoptive parents, or the adopted person;
(2) A request that a new certificate be established and any evidence, as required by regulation, proving that the
person has been legitimated, or that a court of competent jurisdiction has determined the patemity of the person or
that both parents have acknowledged the paternity ofthe person and request that the surname be changed from that
shown on the original certificate.
(b) When a new certificate of birth is established, the actual city or county, or both, and date of birth shall be shown.
The new certificate shall be substiruted for the original certificate ofbirth. Thereafter, the original certificate and the
evidence of adoption, paternity determination, or legitimation shall not be subject to inspection except upon order of
an Arkansas court ofcompetentjurisdiction or as provided by regulation.
(c) Upon receipt of a report of an amended certificate of adoption, the certificate of birth shall be amended as
provided by regulation
(d) Upon receipt of a report of annulment of adoption, the original certificate of birth shall be restored to its place in
the files, and the new certificate and evidence shall not be subject to inspection except upon order of a court of
competent jurisdiction or as provided by regulation.
(e) Upon written request of both parents and receipt of a sworn acknowledgment of paternity signed by both parents
of a child born out of wedlock, the state registrar shall reflect paternity on the certificate of birth in the manner
prescribed by regulation if paternity is not already shown on the certificate of birth.
(0 (t) Upon request, the state registrar shall prepare and register an Arkansas certificate ofbirth for a person born in
a foreign country, who is not a citizen of the United States, and for whom a final order of adoption has been entered
in a court of competent jurisdiction in Arkansas when he or she receives the following:
(A) A certificate of adoption as provided in 20-18405 [repealed];
(B) Proof of the date and place of the adopted child's birth;
(C) A request by the court decreeing the adoption. the adoptive parents, or the adopted person if eighteen
( I 8) years of age or older.
(2) After preparation of the birth certificate in the new name of the adopted person, the state registrar shall seal and
fite the certificate of adoption. This certificate shall not be subject to inspection except upon order of a court of
competent jurisdiction or as provided by regulation or as otherwise provided by state law.
(3) The birth certificate shall show the actual foreign country of birth and shall state that the certificate is not

 It is well settled under the doctrine of separation of powers that it is not the business of
the courts or of the executive branch to legislate. See, Ark. State Bd. Of Election Comm'rs

v-

Pulaski County Election Commission,Z}l4 Ark.236,437 S.W.3d 80,2014 LEXIS 367. Further,

the courts have a duty to only declare unconstitutional those portions of an Act that
unconstitutional, and

if

are

the constitutional remainder remains complete in itself, the court's

obligation is to uphold that portion of the legislation. See, Seagrave v. Price,349

fuk.

433, 79

S.W.3d 339,2002 LEXIS 393 (2002), quoting Levy v. Albright,204 Atk.657,163 S.W.2d 529
(1e42).

The defendant Smith states on page 5 of his Brief in Support of Defendant's Motionfor
Summary Judgment,that;

As explained below, Plaintiffs' constitutional challenges fail because parental
rights, and parental designations on birth certificates, do not arise from marital
relationships. Plaintiffs' claims conflate statutorily distinct legal categories of
mariage, vital records, and parental rights. In Arkansas and most states, and
under the common law that predates statutory law, parental rights arise from
biological parentage, not from marriage.
The defendant's argument on this point is supported collaterally by the definition of "parent" as
defined in A.C.A. $ 9-27-303(40)

.o

evidence of United States citizenship for the child for whom it is issued.
(g) If no certificate of birth is on file for the person for whom a new birth certificate is to be established under this
section and the date and place of birth have not been determined in the adoption or paternity proceedings, a delayed
certificate of birth shall be filed with the state registrar as provided in 20-18-402 or 20-18-403 before a new
certificate of birth is established. The new certificate of birth shall be prepared on the delayed birth certificate form.
(h) When a new certificate of birth is established by the state registrar, all copies of the original certificate of birth in
the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the
state registrar as he or she shall direct.
4

"Parent" is defined in S 9-27-303(40) as a "biological mother, an adoptive parent, or a man to whom the biological
mother was maried at the time of conception or birttr or who has sigrred an acknowledgment of paternity pursuant to
$ 9-10-120 or who has been found by a court ofcompetentjurisdiction to be the biological father ofthejuvenile."
This definition is from the Arkansas Juvenile Code subchapter of the Family Law title, but is instructive of the type
of present code language that exists which may need to be changed as a result of the Obergefel/ decision.

 Defendant's argument is legally well fashioned and has been extremely well argued but it is not
correct factually with respect to the actual language of A.C.A. $ 20-18-401. In that statute, the
General Assembly has intert'wined the concepts of "parent" with certain rights and presumptions

occurring within a marital relationship, using now impermissible limiting spousal terms of
"husband" and "wife." Such language categorically prohibits every same-sex malried couple,
regardless

of gender, from enjoying the same spousal benefits which are available to

every

opposite-sex married couple.

The majority of A.C'A. $ 20-18-401 remains constitutional trnder ObergefelL The
stricken parts below are declared unconstitutional, the remainder is constifutional:

20-l 8-401. Birth Registration generally.
A certificate of birth for each live birth which occurs in this state shall be filed with the
Division of Vital Records of the Department of Health, or as otherwise directed by the State
Registrar of Vital Records, within ten (10) days after the birth and shall be registered if it has
been completed and filed in accordance with this section.
When a birth occurs in an institution or en route thereto, the person in charge of the
institution or his or her authorized designee shall obtain the personal data, prepare the certificate,
certiff that the child was born alive at the place, time, and date stated on the certificate either by
signafure or in an approved electronic process, and file the certificate as directed in subsection
(a) of this section. The physician or other person in attendance shall provide the medical
information required by the certificate within seventy-two hours after the birth.
When a birth occurs outside an institution:
The certificate shall be prepared and filed by one (l) of the following in the indicated
order of priority:
(A)The physician in attendance at or immediately after the birth, or in the absence of

(a)

(b)

(c)
(1)

such a person;

(B) AnV other person in attendance at or immediately after the birth, or in the absence of
such a person; or
(C)The father, the mother, or in the absence of the mother, the person in charge of the
premises where the birth occurred; and
The division shall determine what evidence may be required to establish the fact of birth.
When a birth occurs on a moving conveyance within the United States and the child is
first removed from the conveyance in this state, the birth shall be registered in this state and the
place where it is first removed shall be considered the place of birth. When a birth occurs on a
moving conveyance while in international waters or aii space or in a foreign country or its air
space and the child is first removed from the conveyance in this state, the birth shall be registered
in this state, but the certificate shall show the actual place of birth insofar as can be determined.

(2)
(d)

 (e)

ives

bir*r te *re ehildr uriless e*rerwise previded by state law er determined by a eerrt ef eempetent
ien'
ien
untessi

be individually netarized, kr streh event; tlre putative fatlrer shdl be shewn as the father

(2)

The parents may give the child any surname they choose.

(

l)

If *re father is net narred en the eertifieate ef birth; ne ether ir$ermatien abeut the fatlrer

(g)

Either of the parents of the child or other informant shall veriff by signature or electronic
process the accuracy of the personal data to be entered on the certificate in time to permit the
filing of the certificate within the ten (10) days prescribed in this section.
(h) Certificates of birth filed after ten (10) days but within one (l) year from the date of birth
shall be registered on the standard form of live birth certificate in the manner prescribed in this
section. Such certificates shall not be marked "DELAYED". The state registrar may require
additional evidence in support of the facts of birth.
The nonstricken portions allow either spouse, as the parents of the

child-without

gender

restrictive language-to provide the personal data to either the hospital, if it is a hospital birth, or

for either of the spouses to give that information directly to the Arkansas Deparhnent of Health
in the event of a non-hospital birth.

In

analyzing the challenge

construction is applicable.
constitutional

if

to A.C.A. $

20-18-406,

It is the court's obligation, if

a

separate

possible,

rule of

to interpret a

statutory

statute as

such interpretation can reasonably be reached. The use of the term "legitimated"

occurs only trvice in the entire Arkansas Code. Once in A.C.A. $ 20-18-406(a)(2) in the phrase,

9

 "that the person has been legitimated," and one other time, also in Title 20. "Legitimated" is not

a legislatively defined term, it is only defined by State Board of Health regulation, and is
therefore subject to reasonable judicial interpretation in order to insure A.C.A. $ 20-18-406 is
constitutional, as presently written.

In light of the decision in Obergefell, and in addition to any other meaning presently
given to the term by existing case law, the phrase "person has been legitimated" is declared to
include the minor children of any couple-same-sex or opposite-sex-who married subsequent

to the birth of the minor child, and who present proof to the Arkansas Department of Health of
the date of birth of the minor child and of the date of their marriage. In the event any biological
parent is listed on a birth certificate sought to be amended, a court order shall be required before
an amended certificate is issued which removes such person(s) name. In the event one or both

of

the spouses was married to another individual at any time from the birth of the minor child
forward, no amended birth certificate shall be issued absent a court order naming the current
spouses as the parents of the minor child.

This court-ordered definition of the phrase will allow the Department of Health to
immediately begin issuing amended birth certificates to same-sex couples without requiring the
State Board

Board

of Health to first amend its regulations. This interpretation also gives both the State

of Health and the General Assembly the time to fully and completely

consider all

viewpoints prior to promulgating any rule changes or amending the subject legislation.

LEGAL EFFECT OF DECLARATORY JTIDGMENT
From their own different litigation perspectives, the parties have each touched on a very

important legal issue. The plaintiffs framed the issue by averring that issuance of a decision
acknowledging their constitutional right to be treated the same as opposite-sex married couples

10

 with respect to being named as parents on birth certificates, would be a panacea with respect to
litany of potential legal issuess created by the decision in Obergefell.
argues that the Department

T"he defendant

a

Smith first

of Health only has a non-discretionary ministerial duty to issue and

amend binh certificates in accordance with applicable statutes and regulations6, but then attempts

to become the advocate for the minor children involved by alleging that the relief requested by
the plaintiffs is contrary to the "best interests of the minor children."T

In

cases

involving title to real property, the execution of a deed, whether warranty or

quitclaim, is only evidence of title between the parties to the deeds, and does not affect the rights

of anyone else in the entire world. The proper way to obtain good and valid title against the
entire world is to institute and prosecute a quiet title action.

At the end of

such proceeding,

provided that all persons who may claim interest in the real property have been made parties, the

court issues a decree vesting title in the claimant. This legal scenario is analogous to that
presented

in the present

case. The defendant Smith,

in his pleadings, correctly wams the

plaintiffs of potential future problems.
The Obergefell case was decided less than six months ago. In the years to come it will
cause significant changes to established law in many areas. Those cases are not before the court,

nor are the legal issues that will be presented by those cases being decided in this case. Today's
decision affords the plaintiffs, as same-sex couples, the same constitutional rights with respect to

the issuance of birth certificates and amended binh certificates as opposite-sex couples. That is
the sum total of the legal effect of this decision.

5
6

Complaintfor Declaratory and Injunctive Relief,Paragraph 31.
Defendant's Reply in Support of Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary

Judgment, p.2.
7 Defendant's Reply in Support of Motiorr for Summary Judgment and Response'to Plaintiffs' Motion for Summary

Judgment, pp. 5-7.

l1

 In paragraph 31 of their Complaint, the plaintiffs list eight specific examples of how the
failure to include both same-sex spouses on birth certificates or amended birth certificates may
adversely affect legal status with respect to the minor children. The list includes: identification
procedures for Social Security numbers and passports, denial of the right to authorize medical
care for the minor, denial of the right to authorize school related activities, denial of the right to

apply for needed governmental or employment related benefits, denial of survivor benefits in the
case

of death of one of the spouses, denial to the child of inheritance rights, disruption of the

parent-child relationship in the event of divorce of the same-sex couple, and the award of child
support in the event of divorce of a same-sex couple. The court's declaration today does not
conclusively resolve any of those legal issues.

It may

create equitable and legal arguments for

resolution of issues that involve only the two spouses of the same sex-mariage, such as child
support or child custody. It does not in any manner resolve the multitude of legal issues that may

arise involving third parties. Biological parents, mother

or father, whose statutory

and/or

common law rights may not have been properly terminated, whether through an adoption
proceeding or by the signature

of surrogacy documents, are not bound by the listing of two

ntrmes on a birth certificate. Other heirs claiming against a same-sex spouse estate, or attempting

to disallow a minor child's interest in the estate of one of the same-sex spouses, are not bound by

an amended birth certificate. Instrance companies-life, health, or casualty-may decide in
order

to prevent potential duplication of claims, or liabilities not actuarially

considered in

premium calculations, to change their contract language to exclude birth certificates as indicia

of

acceptable legal relationship, and may require other documentation such as adoption decrees. In
the future, government benefits, both state and federal, ffi&y key off of legal documentation other

than a birth certificate. Today's decision does not legally resolve any of those potential issues.

12

 The defendant Smith addresses these potential legal problems several times in his pleadings, and
the warnings have substance to them. The plaintiffs are constitutionally entitled to the declaration

issued today by the court, but the only way for same-sex couples to foreclose potential future

legal problems involving their minor children is the exact same way that opposite-sex couples,
who are not both the biological parents of the minor child or children, must follow. There must

be a court-approved adoption, or srurogacy contracts must be executed in accordance with
statutory procedure, or any of the other statutorily approved methods for legally foreclosing all
other individuals from claiming parentage of the minor child or children must be utilized.

IT IS SO ORDERED.

DAVIS FOX
CIRCUIT JUDGE

l1r't.a/OE
DATE

13