Wednesday, 10 May 2017

Atty. Bill Pesch helps same-sex couple with baby's birth certificate

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Pesch hopes to work with the Guam Legislature in the future to draft laws that will accommodate these complicated issues.

Guam - It looks like another victory for the LGBTQ community after Public Health's Division of Vital Statistics agreed to include both names of a same-sex married couple on their daughter's birth certificate.

Same-sex unions are still fairly new to Guam, after the U.S. Supreme Court ruled in favor of legalizing gay marriage across the nation, including Guam, in June of 2015.

While it is becoming more and more socially acceptable, laws are still playing catch-up. That was the case with Kimberley and Devidene Chargualaf. Kim and Dev were married in New York in 2013, and just had a child through in vitro fertilization. They hit a road block when they tried to put both of their names on their new bundle of joy’s birth certificate, but were told by the Vital Statistics registrar at the Department of Public Health that one could not be listed as a “father” because she was a woman. An option presented to them was to go through the adoption process. The couple went to Atty. Bill Pesch for help.

In an interview with PNC, Pesch said, "They were told the only way the both of them could appear on the birth certificate as parents would be for Kim to adopt; she was the non-biological mother, and so she would need to adopt to have her name put on the birth certificate."

He could relate to the situation, explaining "However, I’m gay, I’m married, I have two adopted children, and all they did was cross out ‘mother’ and put one of our names in there as the other parent. So, if they can do it after an adoption, why can’t they do it at the time of birth, if that child is born at the time of a marriage?"

Pesch says the registrar refused to accommodate the couple, so he sent a letter in mid-February to Public Health’s director, James Gillan, asking for his intervention in the matter. "So, I had asked for a response by March 1st. I did not receive any response. So, we had no other alternative but to pursue a decision through the court," said Pesch.

But Director Gillan told PNC that it was not possible for the registrar to accommodate because of the laws currently in place. "I think he was being a little disingenuous by saying that the registrar refused to change. The registrar could not, by law," Gillan explained. "The law prevents the registrar from striking through that document and putting ‘parent’ or anything else. There are two ways to do this. One is: the court can decide, and I think the court is probably going to decide. The other is: we get all those laws — everything that has to do with vital records — changed to accommodate this same-sex and gender-neutral kind of thing. And it’s fine with me. None of us here have a problem with that. What we have is ‘are we allowed to break the law?’"

Pesch drafted a Writ of Mandate a few weeks ago, asking the court to order the registrar to include both spouses’ names on the birth certificate. Before the scheduled Monday hearing on the writ, Pesch says Public Health’s counsels informed him that Vital Statistics would agree to his clients’ demands to both be listed as parents on their child’s birth certificate. However, they did not agree to pay for the legal fees, a matter that will be heard on August 7.

"As far as placing the name of both individuals on that birth certificate, that will be a court order. I have been requested to draft the order on behalf of the judge. I will do that, hopefully completed by Friday," Pesch stated.

In the near future, Pesch expressed his intention of working with the Guam Legislature to pass laws that will address issues like this, saying "I would like very much to work with some of the senators for Guam to come up with a comprehensive law on reproductive technology that addresses these issues. I will give Vital Statistics a break to a certain extent because, with advances in reproductive technology, many things are possible now that weren’t years ago. As a result, the law hasn’t kept up with it. So, there are some questions that are going to arise from time to time. We need to anticipate those, like other states have, and create some sort of legislation so Vital Statistics will know what to do in the future when these situations arise."

Pesch is already anticipating the complications of surrogacy in a male same-sex union in the coming months, and the legal issues that could result. Public Health Director James Gillan says changing the law would need to be dealt with carefully.

"They’re called ‘vital records’ for a reason. They have a lot to do with later on in life: estates, probate, all of these kinds of things. So, it’s not just a simple matter of ‘we’ll just strike it through’. And we want to accommodate people," Gillan clarified. "But we have to be careful about anticipating because if you make a mistake in the law and you have to go back and change it, what happens, and we’ve seen it so much, the courts wind up determining how the government is going to operate. That should not really happen."

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