Married same sex couple files lawsuit over birth certificate

Lawsuit asks that form allow both same-sex parents to name themselves as parents

A 2-month-old baby boy is at the center of a Madison same-sex couple’s federal discrimination lawsuit seeking to have the state’s birth certificate policy ruled unconstitutional.

The Lambda Legal complaint filed Wednesday on behalf of Chelsea and Jessamy Torres, who were married in New York in 2012, claims the Wisconsin Department of Health Services’ routine practice of allowing opposite-sex parents, but not same-sex parents, to be listed on birth certificates should be declared illegal.

“So we just feel it’s discrimination toward us. That we aren’t treated the same way an opposite sex couple would be,” Jessamy Torres said.

“What’s most important to us is he should just have two parents on his birth certificate,” Chelsea Torres said.

While the couple’s son Asher has grown a lot since he was born March 15, the complications of that day, including Chelsea hemorrhaging, were deathly scary for Jessamy.

“And in the operating room he started to turn blue. And I though which one of them might die,” Jessamy said. “And I’m sitting there thinking ‘What if something happens to her? What happens to him? Is he technically a ward of the state?'”

To the relief of the Torres family, both Chelsea and Asher survived. Sitting next to Chelsea in the hospital, Jessamy found herself filling out both their names on their son’s birth certificate. In Wisconsin, the document only has a mother and father line.

“So I just put my information in where the spouse would be. I guess I kind of hoped they would send it back with my name on the birth certificate,” Jessamy said.

But two weeks later, when the certificate arrived in the mail, the state had omitted Jessamy’s name from the document.

“So that was just a punch to the gut. I mean I’m not really sure what I thought would happen. I pictured seeing his birth certificate with both our names on it,” Jessamy said. “And to get official paperwork back from the state that just omits my name, it felt like they were saying I was not part of this family.”

So the couple’s lawyer wrote to the state. Their lawsuit claims the only response has been to say the vital records office is evaluating the Torres’ request, and will respond when that evaluation is complete.

“What if something were to happen to her now before this is all sorted out?” Jessamy said.

“We just decided that we should not have to concede she’s not a mother,” Chelsea said. “It’s all about him (Asher.) I mean it really is. He had no choice. We made the choices for him. He’s here. He should have the same rights as any other child.”

The Torres family was surprised by the state’s action for a couple reasons. Since gay marriage has been legal in Wisconsin since last year, their lawsuit cites state law, which says a birth mother’s spouse is the presumed parent of a child born during the marriage. And that opposite sex couples who conceive with the help of a fertility clinic, like they did, are routinely given birth certificates.

DHS spokeswoman Stephanie Smiley had no comment Thursday.