A same-sex couple initially denied a request to have both parents' names listed on their child's birth certificate in Guam may have won part of their battle, but are now fighting to have legal fees paid by the government.
Kimberly Chargualaf and her wife, Devidene Chargualaf, married in 2013 in New York City, and underwent in vitro fertilization in Guam through Dr. Tom Shieh's clinic. The couple had a daughter at the Guam Memorial Hospital in October 2016.
However, while the hospital indicated it was willing to put both women's names on the birth certificate, the parents were told Carolyn Garrido, a registrar at the Office of Vital Statistics for Public Health, refused to do so. Only Devidene Chargualaf, the birth mother, would be included in the certificate.
When Kimberly Chargualaf asked why her name could not be included in the certificate, Garrido allegedly told her that it was because certificates included names for a "mother" and a "father." The women were also told the only way to have both their names on the certificate was to have Kimberly Chargualaf adopt her own daughter.
The legal fees for the adoption is set to cost the couple $1,500, and the attorney's fees for challenging Garrido's initial determination will costs thousands more, according to attorney William Pesch of the Guam Family Law Office, who is representing the Chargualafs in this case.
Pesch sent a letter to Public Health Director James Gillan after taking the couple on as clients in February. At this point, the Chargualafs were already a fair way into the adoption process. The letter asked for Gillan's assistance in addressing the matter so it does not reach the courts but, despite assurance from Gillan's lawyer, the director initially didn't respond in writing, Pesch said.
The letter cited a prior Guam case, which found that a child born within a marriage is "of the marriage," meaning they are the legal parents of the child, regardless of the father's biological ties.
Pesch also cited Guam's marriage equality law, which states that references to legal unions are to be gender neutral.
"In light of this, the fact that Vital Statistic's forms still use the archaic designtions of 'mother' and 'father' cannot be used to undermine (Kimberly's) legal right to be designated as (her daughter's) parent," the letter stated.
The matter dragged for two more months without a remark from the department until this week, when it reached the chambers of Presiding Judge Alberto Lamorena of the Superior Court of Guam.
Pesch said he was told by opposing counsel before entering the courtroom they would agree to have both women's names on the birth certificates, but the department would not pay legal fees.
A hearing is scheduled for Aug. 7.
A writ of mandate instructing Garrido to issue a birth certificate with both women's names on it and for the recovery of their costs has been submitted to the court. An order for the certificate is to be drafted.
Pesch has not charged the couple for his services. The fees would have weighed on the Chargualafs, who already incurred significant expenses from the fertilization process and the pregnancy, he said.
But the matter should have never dragged on long enough to come to court, Pesch told The Guam Daily Post, considering the lack of opposition from Public Health on the birth certificate issue.
Because of the length of time without comment from the department, Pesch had clocked in multiple hours of research and enlisted outside help from Lambda Legal.
"It discourages people from pushing forth with their rights if it has to come out of their pockets and they have no chance of being reimbursed for it," Pesch said. "This is a violation of the Constitution, what Ms. Garrido did. And she shouldn't be allowed to drag it out at the expense of clients because then clients aren't going to be willing to sue when they should, to stop this kind of garbage."
Pesch, a gay man who is married with adopted children, was a part of the legal team whose actions reshaped Guam's marriage landscape in 2015.
Kathleen Aguero and Loretta Pangelinan sued after they were refused a marriage license by Public Health in April of that year. The case hit the federal court and also listed Garrido, as well as Gov. Eddie Calvo, as defendants.
The government proceeded with challenging the suit despite comments from the attorney general that a ban on same-sex marriage was unenforceable, based on a presiding order from the Ninth Circuit Court of Appeals, which superseded Guam law at the time.
Chief Judge Frances Tydingco-Gatewood of the District Court of Guam ruled in Aguero and Pangelinan's favor in June 2015, making Guam the first territory to allow gay marriage just weeks before the U.S. Supreme Court would legalize same sex marriages across the nation.
A subsequent ruling granted legal fees for the Aguero and Pangelinan.
Pesch said the Chargualafs are the "second most important case" he has taken in his 30-year career. There were two more women in the courtroom on May 8, who had contacted him about the same issue.
"I did not take this lightly. I am sick and tired of prejudice based on gender and sexual preference," Pesch said.
"I'm frustrated by the lack of action and respect that public health has failed to give to same sex couples ... What a slap in the face ... to be told you're not a parent, you gotta adopt this kid ... It's crushing and people should not have to go through that, they just should not have to," Pesch said.