Expert's Perspective

Why Birth Certificates Don't Establish Parentage

Don’t be misled by a birth certificate. In our society, we use birth certificates to apply for a driver’s license, to register for school, and to obtain government identification. They are the currency of how we prove who we are.

Actually, a birth certificate is only generated through an administrative process; it is not a legal document. It only records someone’s birth. Don’t depend on a birth certificate to prove parentage. A birth certificate by itself can neither create parentage nor terminate it. Just being named on a birth certificate does not necessarily make you a parent. Not being named on the birth certificate does not mean that you are not a legal parent.

A rule, known as the marital presumption, provides that the husband of a woman who gives birth is listed as a parent on the birth certificate. The presumption is based on the relationship between the couple, not the relationship between parent and child. That presumption is rebuttable; it can be challenged and defeated. There are cases where that presumption was successfully overcome because the non-bio parent had not contributed genetic material to the creation of the child.

People who create family using donated gametes or embryos need to be cautious. Having one’s name on a birth certificate may not be sufficient protection. A judge, hospital, government agency or foreign government can question the parentage of a person with no genetic connection to the child, even if their name is on the birth certificate.

Thus, a heterosexual, married couple who use a sperm donor to conceive should not rely on the fact that the husband’s name is on the birth certificate. They need to seek legal advice whether a court order is required to confirm the husband’s parentage. A same-sex couple who cannot biologically create a family without a gamete donation are particulary vulnerable.

Families who use a gamete donor cannot presume that issuance of a birth certificate alone will cut off the rights of the donor. A court order, not a birth certificate, can provide the security that all rights of the gamete donor are terminated.

Issues can also arise in other contexts. Parentage based solely on a birth certificate may not be sufficient to prove the right to inherit through an intestacy (when there is no will), to obtain government benefits like Social Security for a surviving child or the right of an adult to claim a child as a dependent under tax laws.

If you, as intended parents, are using a donated gametes to create your family, you need to consult a legal advisor to determine if you need more than a birth certificate to confirm your parentage.