08/18/2014 04:43 pm ET Updated Oct 18, 2014

Legislatures Should Review Statutes Regulating Birth Certificate Names

The Tennessee Attorney General issued an opinion (14-75) on August 14, 2014, interpreting Tennessee Code Section 68-3-305 as prohibiting married natural parents from blending their names when selecting a child's surname on his or her birth certificate. While the parents could select the mother's name, father's name, or a hyphenated combination of both names, they could not take portions of both surnames to create a wholly new surname. This comment briefly addresses legislation that restricts birth certificate names.

A mixture of state statutes, court decisions, and administrative procedures determine what names may be placed on birth certificates. In part, the traditional regulations reflect historical European and U.S. viewpoints and in part they reflect broad, although possibly unstated, public policy considerations about what is best for children. Sometimes, the limitations simply reflect the capacity of the recording software that will only accept a limited number of characters.

Due to a lack of uniformity, one must research the law of birth certificate names in a given jurisdiction. While some statues such as Tennessee's are restrictive, the adjoining Kentucky statute Section 213.046 states that if the mother is married at any point between conception and birth, and there is no dispute concerning paternity, "the surname of the child shall be any name chosen by the parents; however, if the parents are separated or divorced at the time of the child's birth, the choice of surname rests with the parent who has legal custody following birth."

There is something of a national consensus that if parents or guardians seek to change a child's existing birth certificate name, a "best interest of the child" analysis is typical.

The right to name one's children potentially involves Due Process and First Amendment constitutional rights. This approach would be in line with the Supreme Court's use of an implied right of privacy in contraception and abortion cases. However, courts are understandably reluctant to invalidate birth certificate legislation. For example, a cited majority decision of the U.S. Court of Appeals for the Eighth Circuit in 1990 upheld a name restrictive Nebraska birth certificate statute. Two mothers sued when their birth certificate name requests were denied. One mother wanted to give her child the surname of the biological father who had acknowledged paternity. Another mother wanted all of her children to have the same surname.

Two Eight Circuit Justices upheld the denial by state officials of the mothers' birth certificate name requests. These Justices distinguished giving a child a surname from U.S. Supreme Court decisions recognizing parental rights of training and education. The Justices noted that U.S. custom has been to give a child born in wedlock the father's surname and a child born out of wedlock the mother's surname. In upholding the statutory limitations, they concluded that government has a legitimate right to prevent a name being used to imply a false claim of paternity or other improper purpose, to promote the overall welfare of children, and to maintain inexpensive and efficient record keeping (Henne v. Wright). A dissenting Eight Circuit Justice viewed child naming as a fundamental right stating: "It is our own business, not the government's."

Significantly, the parent-child relationship is not lightly interfered with or ended in U.S. law as numerous failed legal attempts to terminate parental rights in adoption cases illustrate. In this age of new conception and birth technology, genetic sharing, a more diverse population generally, as well as expanding definitions of what individual is a parent and what is a family, it is time for legislatures to review existing birth certificate statutes. Such a review may well uncover outdated assumptions that underlie statutory restrictions. While it may be necessary to impose some limited restrictions on parental naming choices in "the best interest of the child," the broad arc of human history has not restricted birth names. Arguably, many birth certificate statutes should be much less restrictive.