Can a Transgender Parent Change Her Name on Her Child’s Birth Certificate?
Q: Dear Dana:
I'm a male-to-female lesbian born and living in California. I have changed my name in court to my adult, female name. I have not yet had surgery. But I understand that if I do and submit a letter from my surgeon, the state will change my birth certificate to reflect my true gender.
Before my partner gave birth to our daughter, I asked a lawyer with experience in lesbian parenting about having my name on our daughter's birth certificate. Because my partner and I remain legally married, and because our daughter was conceived using my frozen sperm, the lawyer said that we would have no problem getting both moms' names on the birth certificate, although mine would be next to the "father" label. This seemed a small price to pay for not having to suffer the indignities and legal efforts other non-birth moms go through for the same privilege.
But while still in the hospital maternity ward, my partner and I were shocked to learn that the state would only accept my birth name on our daughter's birth certificate. We challenged the hospital's records person but eventually decided to acquiesce in order to have our relationship as parents recorded, and both of our birth names are now on the birth certificate.
Maybe I'm alarmist, but this arrangement does not sit well with me. I assume that when my daughter needs to use her birth certificate, I may be required to explain my relationship, and the male name on the birth certificate, to her. I'd rather have my female name appear. Is there a way that I can do this? Can you refer me to a good source of general information on this topic?
Thanks for any information.
Sincerely,
Rachel
A: Dear Rachel:
Since you were born and continue to reside in California - and I assume your child was born there since you don't say otherwise - the answers to both of your questions are a matter of California law.
With respect to your first question about whether you can have your current legal name, which is not your birth name, listed on your child's birth certificate: California Health and Safety Code Section 102425 lists the information that your child's birth certificate should contain. Although that section requires, among other things, the "[f]ull birth name of the mother," it requires only the "[f]ull name of the father." This difference implies that the father should be able to list a name other than his birth name; otherwise the different language in the two provisions is meaningless.
With respect to your second question about whether a parent's name on a birth certificate can be changed, California Health and Safety Code Section 103225 states: "Whenever the facts are not correctly stated in any certificate of birth ... already registered, the person asserting that the error exists may make an affidavit under oath stating the changes necessary to make the record correct, that shall be supported by the affidavit of one other credible person having knowledge of the facts, and file it with the state or local registrar." This section may provide a method for you to make the necessary correction.
But if you try this, you probably will have to deal with another aspect of the California code (Section 103230) which states that the section of the law that permits a change in the parent's name on the birth certificate (Section 103225) shall apply to "certificates of birth only in the absence of conflicting information on the originally registered certificate of birth." That is, the state or local registrar might take the position that your current legal name conflicts with the information relative to parentage on the originally registered certificate, namely your birth name.
I haven't checked the legislative history of Section 103225, but I suspect that it is intended to prevent an end-run around those sections dealing with changes to a child's birth certificate as a result of declarations and determinations of paternity and adoptions. If so, you can argue that Section 103225 was not intended to frustrate your attempt to correctly list your current name in a manner consistent with Section 102425.
The California Code also contains other provisions by which a birth certificate may be changed. Since I do not practice in California, however, I recommend that you contact a competent California counsel to discuss your situation. Let me remind you that my comments do not constitute legal advice and should not be relied upon as such.
Sincerely,
Dana Priesing, Esq.
Priesing practices law in Washington, D.C.
Dec. 21, 2000