Two Omaha women are suing the Nebraska Department of Health and Human Services after the agency denied an application to add both of their names as parents to their sons' birth certificates.
The civil rights lawsuit, filed Monday in Lancaster County District Court, says the state law for parental acknowledgement is unconstitutional and discriminatory toward LGBTQ couples.
According to the complaint, Erin Porterfield and Kristin Williams were in a relationship from 2000 to 2013, during which each gave birth to a son using assisted reproductive technology and an anonymous donor.
Each said they considered themselves to be equal parents to both children, continuing to co-parent even after they split, a status recognized by a Douglas County District Court judge, who ordered the addition of the nonbirth parent to each child's birth certificate.
But when Porterfield and Williams submitted an application to amend both sons' birth certificates in February 2018, they were denied by DHHS. A hearing officer later affirmed the denial in August 2018, stating that a person who stands "in loco parentis" is not the equivalent of a father under state statute.
On July 8, 2021, Porterfield and Williams signed a voluntary acknowledgement of parentage — a gender-neutral document nearly identical to the Office of Vital Statistics form provided to parents at the hospital — in the presence of a notary public.
HHS rejected that application on Sept. 29, however, saying "the only routes to legal parentage" in Nebraska are marital presumption, adoption or biological relationship.
"Ms. Porterfield and Ms. Williams were not legally married at or around the dates of birth, they have not adopted the biological child of the other, nor do they share a biological connection with the child born to the other," the letter reads.
Written by HHS attorney Bo Botelho, the letter states granting the application for both women to appear on both sons' birth certificates would require the department "to interpret new meaning into the current laws."
"This would extend beyond the authority of the executive branch and infringe upon the constitutional purview of either or both the Legislature or the courts," Botelho wrote.
In their complaint, Porterfield and Williams argue the department's denial is discriminatory and unconstitutional because it violates equal protection and due process in refusing to grant the same amenities to unmarried same-sex parents as it does for unmarried, opposite-sex parents.
Porterfield and Williams argue that Nebraska law prohibited them from being married at the time when both children were born, and while same-sex couples could adopt children conceived prior to the U.S. Supreme Court's ruling in Obergefell v. Hodges, they were not be able to pursue that opportunity.
The lawsuit, which names Dannette Smith, CEO of HHS, and Dr. Gary Anthone, the director of the department's Division of Public Health, seeks a declaration that each woman is the legal mother of both children.
It also seeks a declaration that voluntary acknowledgements of paternity be applied equally without regard for the gender or sexual orientation of the acknowledging parent.
Porterfield and Williams are also seeking a court order enjoining HHS to issue an amended birth certificate for both sons, as well as costs and attorney fees.
Koenig Dunne, an Omaha law firm, is partnering with the ACLU of Nebraska on the case.
In a statement, Williams said both women are like "most good parents," attending activities, teaching values and manners, and trying to guide their boys "to be their truest selves regardless of cultural expectations."
"We haven’t had the luxury of peace of mind that should something happen to one of us our boys would seamlessly be afforded the government benefits other families take for granted,” Williams said.
Porterfield said the lawsuit seeks to provide security to their children, and others, in areas ranging from education to estate planning.
"Our boys have a right to the security of having both parents on their birth certificates, a required document in so many life changes and decisions," she said. "That's why this matters to us. It's about looking out for our sons."
The ACLU of Nebraska's Legal and Policy counsel, Sara Rips, said the lawsuit is about equal treatment for families with same-sex parents.
"I know if one of them were a man, the department would have accepted their acknowledgment without any thought or inquiry," Rips said. "Once again, LGBTQ Nebraskans must appeal to the courts to affirm that they are entitled to the same treatment as anyone else."
Earlier this year, the Nebraska Supreme Court unanimously decided another case brought by the ACLU of Nebraska on behalf of two women who were wrongfully denied an opportunity to adopt a child they have raised from birth.
DHHS said Monday it had not received a notice of the lawsuit, but said it was unable to comment on pending litigation.