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5th Circuit Appeal: Court Upholds Child’s right to Both Fathers on Birth Certificate

By Melanie Nathan.  2-20-10.   Lambda Legal heads case in what will undoubtedly turn out to be landmark.  The result – the  US Constitution requires state officials across the country “to respect the parent-child relationships established by adoption decrees, regardless of the state where that decree is entered.”

Adoptive parents, Oren Adar and Mickey Ray Smith, who now live in San Diego, were living in Connecticut when they obtained an emergency adoption decree in New York state court to adopt the baby who was born in Shreveport, La. in 2005. The baby’s mother had transferred him to Adar and Smith’s care shortly after the boy’s birth.

A federal appeals court on Thursday ordered the state of Louisiana to issue an amended birth certificate for the child of the men stating that the State of Louisiana is ordered to  put the names of both fathers on the new certificate.

The ruling by the 5th Circuit Court of Appeals upholds a 2008 ruling by US District Court Judge Jay Zainey.  He ordered the Louisiana Office of Public Health and Vital Records and registrar Darlene W Smith,  who had overtly discriminated against the parents, to supply an amended birth certificate for the boy that shows Adar and Smith as his parents, Courthouse News Service reports

Lambda Legal, a national civil rights organization based in Los Angeles, represented Adar and Smith sued on behalf of the couple in October 2007, saying Louisiana Vital Records Registrar Darlene Smith violated the U.S. Constitution in denying them an accurate birth certificate, which threatened the boy’s enrollment in a health care plan and treated him like a second-class citizen.

Clearly showing an aversion to the fact that the boy had two fathers, Louisiana Attorney General Buddy Caldwell, appealed the Zainey decision, arguing that state law wouldn’t have allowed such an adoption in the first place. The Vital Records office claimed that it would have supplied a birth certificate if just one of the parents had been listed in the New York record as adopting the boy.  This shows the Office of vital records attempting to assert its own ideas as to

Adar and Smith are the adoptive parents under Louisiana law, wrote Judge Jacques Wiener Jr. for the panel of three,  because the state “owes full faith and credit to the New York adoption decree that declares [the infant] to be the adopted child of Adar and Smith.” Because New York law allows adoption by unmarried couples, Louisiana had to follow those rules.  The registrar have the discretion to refuse to make a new, correct birth certificate for a Louisiana-born child,  when the New York adoption decree “indisputably satisfies” Louisiana requirements.

Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, which filed a friend-of-the-court brief in the case, called Caldwell’s decision to fight the birth certificate request discriminatory.

“It was shameful that Attorney General Caldwell took such extreme measures to deny a small child a proper birth certificate simply because he didn’t like the boy’s parents,” said Esman, in a statement. “Hopefully this decision will make him think twice before wasting taxpayer money to defend his anti-gay activism.”

PICTURE;  Kenneth D. Upton, Jr. , Supervising Senior Staff Attorney

“We’re pleased the court agrees that it’s wrong to punish children just because the Registrar doesn’t like their parents.”

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35 Responses to 5th Circuit Appeal: Court Upholds Child’s right to Both Fathers on Birth Certificate

  1. gert mcqueen

    May 16, 2011 at 1:47 pm

    It needs to be pointed out that the book Forbidden Family, written by Joan Wheeler, published by Trafford Publications
    has been pulled from their selling markets. The book in unavailable and no further copies of it’s present form will be printed.
    The book was pulled by the publisher after several months of investigating the documented proof sent to them by the birth family.
    The pulling of the book proves that what the birth sisters have been saying, that the book is full of lies and hate, is correct.
    For further details see:

    • gert mcqueen

      June 23, 2011 at 11:11 am

      I am a birth mother, a foster mother and an adoptive mother!

      I signed 3 documents, one to relinquish my birth child, one to became foster mother and one to become the adoptive mother. He was 16 and never left my presence, gave his own permission to be adopted, which in NYS anyone over 14 must give own permission. My daughter, 15, chose no adoption, she wanted to keep her own name.

      My family had interference in this process by a meddling ‘angry militant adoptee’ (her own description of herself) who happened to be my reunioned adopted birth sister. When told to butt out of our business she placed a child abuse report against me because we were causing harm to my son by taking away his original birth certificate, he was too old for adoption and other things she didn’t like about my parental activities. This report was dismissed, by authorities, but she didn’t stop.

      She poisoned my daughter against me and when I moved my family out of Buffalo for economic and quality of life improvements, my daughter ran away. Her issues were my business no one else’s but this reunited adopted sister determine that now my daughter was a victim of sexual abuse! What ended up being a 2 years ordeal, with me placing my child in a PINS in a foster home for her safety and to keep her away from the meddling adoptee and a court hearing wherein we were proven fit parents, the charges were false and the record was expunged. But the damage was done to my family, this happened in 1980/83.

      In 2009 she rewrote history and facts, about my life, the family I was born into and the family that I gave birth to, exploiting us all into what she ‘views’ us to be. So tell me again.. that I don’t know Joan Wheeler’s character or about adoption!

      To see full story to which I posted the above go to:

  2. Ruth Pace

    December 8, 2010 at 12:30 pm

    I am another birth sister of Joan Wheeler’s -
    just want to point out the hypocrisy of both Joan and Mara. hatred, bad language?
    Yet TODAY, December 8, 2010, Mara was on a different forum and hypocritically said that I spread hatred. In February 2010, Mara came to my blog (referenced above by my sister Gert McQueen) and left several posts laced with obscenities. ~~~I have no opinon either way on the adoption issue –it is not my concern – my concern is the fact that Joan Wheeler continuously bandys about stories of MY childhood — I was not adopted, was only 3 years old when Joan was adopted out of our family — I see no constructive reason for Joan to be invading my privacy with these stories of MY life – especially when she gets on internet forums and doesn’t even bother to tell the truth of my life. It is MY life, why is Joan reporting on it? I get no privacy because SHE was adopted? No – it doesn’t work that way.

  3. gert mcqueen

    December 8, 2010 at 9:40 am

    My name is Gert McQueen I’m a birth sister to Joan Wheeler, who wrote the book, Forbidden Family. Two other sisters and myself have a blog wherein we are refuting this book called ‘Refuting a Book of Lies; Forbidden Family’ @ Our purpose behind our blog is truth telling. You may also want to check out our review of the book on

    Her book is billed as a true story and a help for adoption reform, it is no such thing. The truth is that the book is an extremely long painful account of the author’s own perceptions of her reality where in she fabricates, exaggerates and boldly lies about people and events. She describes her own character flaws presenting them as reasons for why she believes she has been traumatized by adoption and in that process doesn’t realize the harm she has done to herself and others. She portrays both the birth and adoptive families is very negative ways and claims to be harassed by us birth sisters. She does not tell of her own negative actions towards the birth sisters or many other people.

    There is very little in the book that could possible be of help to the adoption reform movement or for anyone interested in any aspect of adoption, period, for the author is violently opposed to adoption and adoptive parents. It is instead purely a opportunity and venue for the author to vent her extreme angry at the very fact that she had been adopted and she hates everyone. The author is not truly interested in helping people, she wants people to purchase the book. She has spend over 35 years writing about her inner projection of her life, instead of living a genuine life.

    The reason for my posting this statement here is to invite all interested in the balanced story to come to our blog and make up your own mind as to the validness of her book and purposes behind her activist agenda. My sisters and I are not hiding anything we say or do about refuting her book or other actions she has said or done to us; we put everything we do on our blog for it is a truth-telling blog. It is the birth sisters’ position that the fact of a publication of a book of lies and misrepresentation is an grave dishonor to our parents, ourselves and other members of our family and the adoptive family.

    Please do take a look at our blog…but be warned…it is not pretty…for we do tell the truth.

  4. Joan M Wheeler

    February 26, 2010 at 7:14 pm

    The Netherlands has never had sealed nor falsified birth certificates for adoptees. I have known the director of The Adoption Center there for 23 years and have met adoptive Dutch parents who are appauled and disgusted with the lies and hidden secrets USA has in the system of adoption here. Adoptive parents in Holland do not expect their names willever be on a falsied birth certificate. The proudly proclaim they are adoptive parents with the Adoption Certificate they have for their adoptee.

    We, in America, are very backward compared to progressive nations. And Mara is right! When the gay/lesbian community stands behind a false birth certificate naming two gay men as adoptive parents INSTEAD OF A TRUTHFUL ADOPTION CERTIFICATE, that means the the gay/lesbian community IS violating another oppressed group to assert their perceieved civil rights over that of an innocent baby who one day will be asking about his mother. And he will go to school to learn about sperm and egg and birth. He will look at the two gay men as his parents and shake his head in disbelief. For his two parents willfully and intentionally have kept the truth from him — the truth of his actual birth. The shame belongs squarely on the heads of the two gay men who took this to court and “won” a shallow victory. It is no victory when one group abuses the rights of another group — especially that of an innocent adopted infant. Shame on you all. ….
    1 birth certifcat4e + 1 adoption certifcate = adoption truth.

    • Sei

      February 26, 2010 at 8:12 pm


      Then change the system in the United States. That is the only thing that I can suggest. To date, this is the first time I, personally, have heard of these issues. Unfortunately, by accusing us in the American LGBT Community of violating someone’s rights in an angry and accusatory fashion, only serves to turn us away from those causes. We have to work within the system that we have. While I do feel that another system would be better and more representative, I find myself appalled by the accusations, anger, and down right homophobia that has been spewed towards the LGBT Community for working within the system as it is. Do not attack us for being ignorant of the trauma that this can cause if you do not bring it to us with a calm voice.

      These men did what our society deems normal. If it is causing problems for others, then the only thing that can be done is to bring it to light and to change the system. Until then, do not be angry with us in the LGBT Community in America for operating within our laws. Tell us your story without rancor, anger, vitriol, and with the understanding that we are not you, and we do not know your suffering. We can work together, but only if we set aside the harshness, anger, and vitriol. All the anger does is harden the hearts of those who could help rectify this problem.

      In other words, Joan, Mara, you both have valid points, but the only thing we have heard out of both of you is a wall of anger.

    • Melanie Nathan

      February 26, 2010 at 9:03 pm

      False or truth lies in the discussions between parents and children and ultimately may or may not lead to the revelation of who a birth parent is. It seems to me that the choice has always been with adoptive parent and also with the bio parent who may not want to ever be identified. Their choice. Why do you come to this site to argue whether this is good or bad. That is for your own BLOG on the topic. The thesis of my post is about EQUALITY FOR GAYS to have the SAME LAWS AS HETEROSEXUAL COUPLES. I am sorry your stumbled upon this post that does not really address your issue. Frankly I do not purport to know enough about the pain of those who seek their birth parents. But I do know my point in writing this post and that is to note that GAY PEOPLE and STRAIGHT PEOPLE should have exactly the same rights as each other when it comes to ANY ANY issue. What part of this do you people not get? Is there no forum or BLOG that can help you get pissed off at the law. I hope that if ever your advocacy for your cause succeeds but that has nothing to do with the question of equality.

  5. Fat chance of revealing my name in this crowd

    February 26, 2010 at 1:47 pm

    Man, the shit you people talk. Why can’t you just let this victory be what it is? Why can’t you see it as a ray of hope and use it properly to present the case of adoptees’ right to an accurate certification of birth in a rational manner? If we’ve come to the point where two men can be acknowledged on a birth certificate surely in time, with concrete argument that is devoid of over the top emotion and attack on whomever you’re trying to make your case to, society can be convinced it’s an injustice to human beings to alter their birth certificates. What you argue is true, a birth certificate naming adoptive parents as the parents is false and unfair to an adopted person. There are very simple solutions to this but they will take time and thought and many people need to be on board in order to make it happen. At present birth certificates are used as a form of identification and proof of citizenship, to have them not match up with their parents is impossible with the present system. It’s the system that needs to be changed and the likelihood of that happening with the approach I see from adoptee advocates such as yourselves will at best delay any change from occuring and at worst prevent it from ever happening. You people are bullies, hypocrites, self centered, and vicious all of which are not helpful in getting people on your side or to elicite much needed support from other minority groups, other members of the adoption triad, and from adoptees like myself who have to hide their identity out of fear of retaliation. You need to take another look at your agenda, your approach, and learn how to get along with others if you ever want to be successful in your efforts to change the way things are. Grow the hell up.

  6. julie j

    February 26, 2010 at 1:55 am

    Hi Melanie, This is clearly for your own need to feel more like a parent & less of a babysitter. I don’t know why you claim this is for an “adopted CHILD’S right to have 2 gay parents listed on his/her birth certficate.” I have yet to ever see any adoptee campaigning for that so-called “right.” However, I do know of thousands of adoptees who campaign for their ORIGINAL BIRTH CERTIFICATES with their truth on it. Nobody wants a lie on their official document of origin stating 2 gay people created them (or 2 infertile heterosexuals either, for that matter.) Birth certificates are not ownership statements of who has legal custody of a child! That’s what the adoption decree is for that every adoptive parent already gets upon a finalization of an adoption. (It is not a babysitting certificate, it’s a legal document from court showing you as the current parents, legally responsible for that child.) Please do not confuse legal parentage with where the DNA came from. Not always the same thing. The birth certificate is for documenting an historical event as it actually happened, that’s why they call it a BIRTH certificate. Humans are not born again if legal custody later changes. The facts never change. Forging it later with lies is wrong whether it’s heterosexuals or gays who do that to pretend they gave birth to a child they clearly did not. It’s simply unacceptable. Please stop trying to make this into a gay rights issue when it is not. One may not morally gain extra rights by taking them away from other citizens. Every one has a right to their own real birth certificate. Your child will thank you later for leaving those alone!

  7. Mara

    February 25, 2010 at 11:05 pm

    PS: Fuck YOU!!!!!

    • Melanie Nathan

      February 25, 2010 at 11:13 pm

      You notice that this comment breaks our guideline/ rule for acceptability of comments – but we have allowed it to be posted here because this is the kind of language one has to resort to when they lose an argument or are too dumb to find proper language to express themselves. I feel sorry for your anger!! Please keep comment again either to apologize for your bad language or to continue to make an fool of yourself.

    • Melanie Nathan

      February 26, 2010 at 12:05 am

      Now Now Christine!

  8. Mara

    February 25, 2010 at 11:04 pm

    Melanie, your pity is vomitrous and your insults are laughable. You don’t know me. I think gay people should have equal rights to straight people, so take your prejudice accusation and shove it where the sun don’t shine. Your ignorance is bliss. But whether I’m gay or straight doesn’t make a damn difference when it comes to sealed birth certificates. It seems in the quest for “equal rights” the gay community (along with your ignorant self) have found a way to EQUALITY DISCRIMINATE AGAINST ADOPTEES NOW. Thank you, gay rights for in your efforts to “better yourselves” you have f&cked over another minority. BIRTH CERTIFICATES SHOULD BE JUST THAT. THE DOCUMENTATION OF BIRTH. Now pull your ignorant head out of your ass so you can breathe and come back to the real world where IT”S NOT ALL ABOUT YOU.

    • Melanie Nathan

      February 25, 2010 at 11:11 pm

      Clearly you have no idea the value of this case to the LGBT community who are constantly suffering for lack of equality., That is what this article IS ABOUT. You know how i know? Because I wrote it! Its not about sealed Birth certificates.. Talk about ignorance – you failed to read the thesis of the posting in the first place. My only stupidity was to engage you in the irrelevance of your comments. Silly silly me. I am not interested in your cause about what BC’s should or should not be- I am interested in children having loving parents, great homes, happy childhoods, their safety and civil rights!! So fo the rest of it, maybe you should write your own BLOG

  9. Pingback: Melanie Nathan

  10. not born where my BC says I was

    February 25, 2010 at 10:41 pm

    Melanie, I will be charitable and assume that you speak from ignorance as opposed to malice.

    “Sorry you are so bitter; your adoption experience does not sound a happy one at all.”

    This is one of the most common lies. No, adoptees who ask for equal rights under the law are not doing so just because they had an unhappy adoption experience. You’d be surprised how many loving adoptive parents stand next to their sons and daughters to protest the inequalities.

    “What a shame for you because so many adopted children have a much better life than they would otherwise have had”

    This is unknowable. People change and grow, make mistakes and personal breakthroughs many times in their lives. You cannot know for certain whether or not an individual would have had a better life if they were with someone else.

    “As you may know open adoptions are more common now than they used to be – which then negates your argument in most cases.”

    No, they aren’t. The term is used more, as yet another way to entice women to give up their children. The truth is, open adoption isn’t legal: there’s no official contract that can be upheld by a court. The biological family is at the mercy of the adoptive family to keep its word. In the vast majority of cases, any promises regarding an open adoption disappear the instant the adoption is finalized.

    “It is clear also from your post that you are homophobic that too is a shame.”

    You know perfectly well that there was no indication of that in any of the posts. That was a deliberate attempt to demonize the poster. Shame on you.

    BTW, some adoptees are gay and lesbian too. Even some of the ones who have posted here.

    “I still have my daughter’s old Vietnamese birth certificates. She is welcome to them as soon as she is old enough.”

    They’re HER legal documents. You have the legal right to decide what happens to them only because she is not an equal human being under our laws: she is someone our laws are set up to openly discriminate against.

    Your prejudice against adoptees who refuse to stay in the closet is quite evident.

    • Melanie Nathan

      February 25, 2010 at 10:48 pm

      I stick by my words and continue to offer you my sympathy until such time you are able to make a meaningful argument. That said the only discrimination going on in this Post is that against same gender parents who are denied the same rights as different gender parents. The issue has nothing to do with whether an adopting parent should be or should not be on the BC. Its an equality issue for gay parents and the entitlement of their children to be treated in the same way as children of heterosexual parents. I think your comments about whether adopted children should have new BC’s is of no relevance to this case.

  11. Pingback: Forbidden Family » The Real Issue in Two Fathers on a Birth Certificate: The Adoptee

  12. Sandy

    February 24, 2010 at 1:01 am

    In response to the above replies:

    My son was placed in an adoption situation at age 7. His birth mother decided to place him with us, when “her” son did not get along with her new husband. We proudly accepted his new birth certificate listing us as parents, which came in handy the following football season when proof of birth certificate was needed to enroll him in i9 sports. This birth certificate also came in very handy when we as the parents who are raising him, NOT babysitting him for his birth mother; decided to apply for a passport to take him overseas, and to enroll him in school that next fall. ALL of which required BOTH HIS parents names on his birth certificate.

    My son was diagnosed with RAD when we first brought “him home” and now 6 years later is an honor student who still loves to hear about the night we first became a family.

    GLBT rights should be equal to straight adoptees without question. Adoption is not babysitting and family does not have to consist of a mother and a father.

    Doesn’t anyone remember Barney’s words: (purple dinosaur)
    A family is people; a family is love
    That’s a family, they come in all shapes and sizes,
    and thats OK, ‘cos mines just right for me…
    Mines just right for me…

    • Melanie Nathan

      February 24, 2010 at 1:16 am

      Great response thanks Sandy

  13. Mara

    February 23, 2010 at 11:20 pm

    A child is only born ONCE. Altering a birth certificate is immoral and should be ILLEGAL. As an adult adoptee, I am appauled that my original birth certificate (the authentic record of my birth and my heritage) has been sealed from me without my permission, without legal representation, and I cannot have access to it. I must carry around a fake one listing my adopted parents as my biological parents. Such lies!!!! Now judges are allowing two men to be placed on birth certificates? What is this world coming to? In England and other European countries, birth certificates of adoptees are not sealed. When they are adopted, certificates of adoption are issued. The children use both for identification. There is no crisis in England or Europe, everyone is o.k. with the TRUTH. I want what every non-adopted person in this country has: my original, unsealed, unedited, truthful birth certificate. Every person in the country should be ensured equal rights. However, there should NEVER be the misunderstanding that anyone is entitled to someone else’s child and has a “right to adopt”. No one should have the right to alter another person’s birth certificate either. Those FACTS should NEVER be changed, the truth is NOT editable. In the quest for equal rights, the GLBT community has entered an arena in which it is gaining “rights” at the expense of others. GLBT rights should also include the rights of gay, lesbian, bi-sexual, transexual and straight ADOPTEES.

    • Melanie Nathan

      February 24, 2010 at 1:26 am

      Mara, Sorry you are so bitter; your adoption experience does not sound a happy one at all. What a shame for you because so many adopted children have a much better life than they would otherwise have had, regardless of whether such adoption is open or not. As you may know open adoptions are more common now than they used to be – which then negates your argument in most cases. Sandy is correct .
      My lesbian partner and I adopted my baby daughter from an orphanage in Vietnam.. The California Secretary of State did not hesitate to place both Mothers on the birth certificate. We traveled around the world with our daughter about three times – she is now 13. Thank goodness we were both on the birth certificate – because we would not have made it on one flight, nor through one border, especially looking different to our child.

      we have needed birth certificate to get into schools, to get a social security number, to secure her citizenship, to get a passport, to register for school,etc.

      It is clear also from your post that you are homophobic that too is a shame. Because so many gay mothers and fathers have given so many children beautiful loving homes and exceptional lives. I still have my daughter’s old Vietnamese birth certificates. She is welcome to them as soon as she is old enough. Why should both her moms who are now raising her not be entitled to a birth certificate reflecting our spiritual birthing of our child?

      For you to decide that my child’s rights are different to any other child’s rights or that my child has been adopted at the expense of anyone is ludicrous and cruel. Mara get out of your hick town and tortoise shell and realize that there is more to the world than the cryptic thoughts of small people like you.

  14. Daryl Royal

    February 23, 2010 at 12:14 pm

    Without taking anything away from the rest of the discussion, this decision is NOT from the U.S. Supreme Court, but is instead from the Fifth Circuit, which is a federal appeals court one step below the Supreme Court. It is only binding precedent for courts in that circuit, which include some or all of Louisiana, Mississippi, and Texas.

    • Melanie Nathan

      February 23, 2010 at 2:12 pm

      Yes thanks for the clarification, Melanie

  15. Pingback: Forbidden Family » This is Just Too Stupid: Two Fathers on a Birth Certificate: NumbNuts

  16. not born where my BC says I was

    February 22, 2010 at 10:50 am

    The birth certificate is supposed to be a legal document listing the actual parents responsible for the birth of a baby.

    It is true that in the US, birth certificates are routinely falsified by being reissued with the names of people who did not give birth to the baby, and often weren’t even in the same state as the baby’s birth (such as this example). The problem isn’t that two dads are listed on the birth certificate: it’s that two people who weren’t even in the same part of the country when the baby was born are falsely listed as being the parents responsible for that birth.

    Now that gays and lesbians have rights, when will it be time for adoptees to have the same rights?

  17. Chloe

    February 22, 2010 at 9:22 am

    Accurate birth certificate?

    An accurate birth certificate should state who actually gave birth to the child. The child became a second class citizen the minute his original birth certificate was replaced by the first falsified document.

    This is not a gay rights issue. This is an adoptee rights issue. Falsifying birth certificates in the name of adoption is legalized identity theft. This child should be entitled to his true identity just as non-adopted citizens are.

    • Melanie Nathan

      February 22, 2010 at 12:43 pm

      The truth is that all adoptive parents get to go on an amended birth certificate and same should apply straight or gay

    • Cully

      March 1, 2010 at 1:27 pm

      Actually… Melanie, the “truth” is the Original Birth Certificate. There should be no such thing as an “amended” (fasified) birth cerfificate. There should be a legally binding Certificate of Adoption… after all, isn’t the adopted child a person just like an non-adopted child? Whether parents are gay or straight what makes them Mommy or Daddy is the love they have for their child/children. These men love their son, they also know that they did not “father” him, and they also know that no piece of paper (no matter what it says) will ever make them love him less or more. What they don’t know is what will happen in their son’s life when he will be required to show his “birth certificate” to someone. Even those adopted by straight couples have experienced these problems – it won’t be something new.

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