Lexington same-sex couple wins historic birth-certificate battle with DHEC

Under a family court judge’s order, DHEC has issued an amended birth certificate to a married same-sex Lexington County couple.

The new birth certificate now has the names of both spouses listed as parents – right now, one of the women as “father” – of their twin children.

DHEC was reacting to an unpublicized order by Family Court Judge Greg Seigler, issued Aug. 26. The order came after a three-plus-year legal battle that parents Katie and Tracie Bradacs had with DHEC trying to get the agency to list them both as parents.

DHEC issued the amended birth certificate on Aug. 31, Tracie Bradacs said Wednesday.

“This is huge for us – we are beyond ecstatic and relieved we finally got it done,” Tracie Bradacs said. She is the birth mother of the 3-year-old twins, and her spouse, Katie Bradacs, supplied the eggs. They used a Lexington fertility clinic.

“We also felt that other people in the same situation should know how DHEC now treats birth certificates,” she said.

Tracie Bradacs added that all they wanted was equal rights. “For a guy, they can come in the hospital, the mom can sign an affidavit, and he can be put on a birth certificate just like that. But we could not do that. We should not have had to fight.”

In a statement DHEC provided to The State newspaper, the agency said it could not comment on specific cases, since birth certificates are private. However, the agency indicated it would in the future be open to putting both parents in a same-sex marriage on a birth certificate.

When the twins – Baylie, a boy, and Colbie, a girl – were born, in July 2012, at Lexington Medical Center, both Bradacses beseeched the hospital to put both their names on the birth certificate.

The hospital refused to put Katie Bradacs’ name on the birth certificate. On the DHEC-approved certificate, there is a place for “mother” and for “father.”

Tracie Bradacs’ name went under “mother,” and the space under “father” was left blank.

The Bradacses had been married several months earlier, on April 6, 2012, in the District of Columbia, which recognized same-sex marriages. At the time, South Carolina was one of a majority of states that did not recognize any form of same sex marriage.

In his order, the judge noted that the Bradacses had, in 2013, filed and won what became a landmark lawsuit in federal court in South Carolina. In late 2014, U.S. Judge Michelle Childs ruled that South Carolina had to recognize as legal the Bradacs’ 2012 in the District of Columbia. The ruling was upheld in the 4th Circuit Court of Appeals in Virginia.

But after Childs ruled, DHEC still wouldn’t put Katie’s name on the birth certificate. And it continued its refusal even after the U.S. Supreme Court ruled in June that same sex marriages were legal, Tracie Bradacs said.

Finally, on June 30, the two filed suit in 11th Circuit Family Court in Lexington County.

John Nichols, the Columbia lawyer who with John McDougall represented the Bradacses in the birth certificate action, said Wednesday, said getting Katie Bradacs’ name on the birth certificate has significant practical implications.

If one of the children became hospitalized and Tracie Bradacs was unavailable, Katie Bradacs “would be viewed as a stranger, and not a parent,” Nichols said. “She would also not have access to information regarding education. This makes life much, much easier as a parent.”

Moreover, Nichols said, if something happens to Katie Bradacs, an S.C. Highway Patrol officer, in the line of duty, her children are now her legal beneficiaries. “We hope we never have to test that theory.”

DHEC complied after the family court ruling.

A key legal argument Nichols and McDougall used was that under the common law – law that has evolved in court decisions – children that are born into a legal marriage are presumed to be children of that marriage.

Since Baylie and Colbie were born after the Bradacs were married, they should be presumed to be the children of the parents of that marriage, the lawyers had argued. The judge agreed.

“I would hope that DHEC would go ahead and simply put ‘parent’ on the form,” Nichols said.

DHEC did not say whether it would eventually change its birth certificate form in its response to The State.

“Under current South Carolina law and regulation, in order for a birth record to list two individuals of the same sex as the parents of a child, when one is the birth mother or biological father, DHEC requires an amendment to the birth record after the child’s birth based on either: (a) a certificate of adoption by which the non-biological parent of the minor child completes a second-parent adoption of the child or (b) an order of a South Carolina Family Court after the child’s birth finding that the two individuals are the legal parents of the minor child and directing DHEC to list the individuals as the parents on the birth record,” the agency said.

Lexington Medical Center did not respond Wednesday when asked for comment.

This story was originally published September 10, 2015 at 6:55 AM with the headline "Lexington same-sex couple wins historic birth-certificate battle with DHEC."