54 American Journal of Comparative Law 125



54 American Journal of Comparative Law 125

Fall 2006

PARENTHOOD IN A TIME OF TRANSITION: TENSIONS BETWEEN LEGAL, BIOLOGICAL, AND SOCIAL CONCEPTIONS OF PARENTHOOD

David D. Meyer 

      For at least four decades, family law in the United States has been undergoing a most dramatic transformation.   . .

      Yet, in this roiling sea of change, the idea of parenthood stood out as an island of relative calm.  . . .

      Recently, however, the changes sweeping over the rest of family law have caught up to parenthood as well.  Biology is increasingly called upon to share its privileged status as the foundation stone of parenthood with caregiving and other social values.  Legal parenthood without genetic connection, marriage, or adoption is now a reality in several U.S. states.  Proposals to expand the numerical boundaries of parenthood, so that a child might have at once three, four, or even more parents, now carry the imprimatur of the United States' most influential law-reform organization. Beyond parental identity, the rights and obligations of parenthood are also in flux. As parental identity has become more contested, the prerogatives that attend it have inevitably grown less definite. In step with the law's broadening idea of parenthood, there is pressure to dilute traditional parental prerogatives by spreading them more thinly among the expanding circle of adults. And, just as the law of parental prerogative has softened to accommodate multiple caregivers, the law of parental obligation has stiffened, with courts and legislatures resorting to ever more aggressive means of child-support enforcement while extending support duties to new parent figures formerly thought to be outside the circle of family.

      At the same time, there are significant forces pushing back in the opposite direction.  While recent developments have mostly downplayed genetic ties in assigning parentage, the availability of DNA testing has led to new and surprising emphasis on biology in defining parenthood in some contexts.  While legislators have demonstrated new flexibility in their approach to defining and regulating family relations, recent court rulings have limited their innovation by invoking constitutional doctrines of privacy rooted partly in traditional conceptions of family. The settling point for the recent changes in the U.S. law of parentage remains unclear, but it is plain enough that social and legal conceptions of what it means to be a “parent” are now in play as never before.

I. The Traditional Rules: Clarity in the Assignment and Rights of Parentage

      Traditionally, the rules governing the assignment of parental status were relatively clear.  Parentage rested primarily on the establishment or presumption of a procreative tie with the child.  For mothers, this was typically a straightforward matter and legal motherhood followed childbirth as a matter of course. For fathers, whose genetic connection was not as apparent, the law did the best it could to infer biological paternity through a network of presumptions and defenses. The law traditionally presumed, for instance, that a child born to a married woman was fathered by her husband. The presumption was a strong one and could be overcome only in limited circumstances. . . When there was marital cohabitation at the likely time of the child's conception, only the advent of blood-typing and, later, DNA evidence made it possible to rebut the presumption of legitimacy.

      By permitting rebuttal based on proof that the husband could not have been the biological father, the marital presumption was plainly grounded in assumptions about the husband's likely procreative role.  As Ira Ellman has pointed out, in an age when scientific limitations usually made it impossible for a husband to disprove his biological paternity, the law rarely encountered conflicts between biological and social conceptions of parenthood. Only later, when scientific proof of paternity exposed these conflicts in stark relief and forced hard choices, was the marital presumption sometimes construed frankly to protect marriage or social parenthood over biology. In Michael H. v. Gerald D., for example, a man who had indisputably fathered a child during an affair with a married woman was barred from seeking to establish himself as a legal father over the objection of the woman's husband. The state's policy of treating the marital presumption as conclusive, the Supreme Court held, was justified by its interest in protecting both marriage and the child's established bonds within the intact marital family from external disruption.

      When the mother and putative father were not married, the assignment of paternity was more complicated.  Before the 1970s, unmarried fathers had only the most tenuous legal rights concerning their children. . . [U]nwed fathers typically were not permitted to wrest custody from the mother, nor were they legally entitled to object if the mother decided to place the children for adoption by new parents. This wholesale exclusion of unwed fathers ended after the Supreme Court's 1972 decision in Stanley v. Illinois, recognizing that at least some unmarried fathers have constitutionally protected interests in relationships with their children. Subsequent decisions allowed that certain men - those who had failed to do what they could to “develop a relationship with [their] offspring” - could be summarily disregarded as potential fathers. . . As a result, the ability of unwed fathers to establish their paternity today often depends upon whether they took prompt action to assume legal responsibility for their children or instead dawdled while others changed diapers and bought formula.

      Although non-marital children were once brutally stigmatized by legal rules classifying them as “illegitimate,” today U.S. Supreme Court decisions and the Uniform Parentage Act have all but eliminated the vestiges of legal discrimination. The Uniform Parentage Act, now formally adopted in nearly half the states and embraced in modified form in many more, was first promulgated in 1973 [and modified in 2002] by the National Conference of Commissioners on Uniform State Laws (NCCUSL).

       Both versions of the Uniform Parentage Act abandon the concept of legitimacy. Marriage between the parents remains a relevant and important indication of probable biological paternity, but has no further significance in this context. An elaborate network of presumptions identifies circumstances in which it is more likely than not that a particular man is the child's biological father. These presumptions cover the (1) the basic situation in which the parents are married; (2) the case in which the man and the child's mother have attempted to marry prior to the child's birth but the marriage is void or voidable; (3) the case in which the man and the child's mother have married or attempted to marry after the child's birth and the father has given some additional indication of recognizing the child; (4) the case in which the man, regardless of marriage, receives the child into his home and openly holds the child out as his own; and (5) the case in which the man acknowledges his paternity of the child in a formal writing without objection from the mother. As with the traditional presumption of marital paternity under the common law, the main object of the Uniform Act is to identify as the father the man most likely to have been the biological father of the child.

      Where there was no pretense of a genetic connection, traditional law provided only one route to parenthood: formal adoption.  If parentage was not founded on blood (or the presumption of blood ties arising from marriage or other circumstances), then it must be founded on paper in the form of an adoption decree. And, even in expressly recognizing a path to parenthood outside of biology, adoption law retained an implicit preference for biological parenthood. In myriad ways, the law often reflected an assumption that adoptive parents were second-best “stand-ins” in circumstances where the “real” - i.e., biological - parents were simply unavailable. ‘ ‘

      Just as the rules traditionally governing the assignment of parental identity were often sharp and bright-lined, the law defining the prerogatives of parents was reasonably straightforward.  Most important, parents - whether biological or adoptive - were legally entitled to custody of their children over the competing claims of non-parents.  A parent's claim to custody was protected, first, by rules that narrowly limited the standing of non-parents to file suit and, second, by a strong substantive preference for parent custody.  In its strongest form, this preference provides that a non-parent can gain custody only by proving that the parent is wholly “unfit” to care for the child, effectively the same standard used to terminate parental rights in cases of abuse and neglect. In its slightly weaker form, the preference favors parents unless it can be shown that parent custody would be harmful to the child. In either case, however, the rules gave strong assurance to fit parents of their ability to exclude other custodians by casting non-parents as “legal strangers” to a child. While the law governing custody disputes between legal parents has undergone a series of upheavals over the past four decades - cycling through preferences for mothers, primary caregivers, joint custody, and finally settling in most jurisdictions on an unmodified “best interests of the child” test - the legal preference (in some form) for parents over non-parents has remained relatively stable.

II. Blurring Lines: Family Diversity and the New Parenthood

      . . .

       In recent years, courts and legislators have tried to adapt parentage law to “the changing realities of the American family.”  But, for the most part, they have done so only around the edges, by bending traditional doctrine to take account of non-traditional, “parent-like” figures while maintaining the fundamental premises of the older law. One response has been to soften the application of the traditional parental preference in custody disputes involving a longtime non-parent caregiver. . . . Yet, though using terms like “de facto parent” or “psychological parent,” these courts have stopped short of recognizing these caregivers as true legal parents, and instead have justified conferring a “parent-like” role over the objections of the true legal parent.

      In some other contexts, law has adapted by expanding the boundaries of legal parenthood itself.  In the realm of assisted reproduction, for example, the law for several decades now has permitted the conferral of legal parenthood without adoption and without any true pretense of a biological connection.  Since the Uniform Parentage Act of 1973, the law in most jurisdictions has provided that a child born to a married woman, as a consequence of artificial insemination from a donor other than her husband, is legally the husband's child, at least so long as the procedure was performed by a licensed physician. The sperm donor is dealt out of the picture entirely, even though he is known to be the genetic father of the child. In 2000, the Uniform Parentage Act was revised again, further expanding the allowance for legal fatherhood by dropping the 1973 Act's limitation to procedures performed by a licensed physician. In 2002, the Act was broadened still further to cover unmarried couples as well, so that now “[a] man who provides sperm for, or consents to, assisted reproduction by a woman . . . with the intent to be the parent of her child, is a parent of the resulting child.” 

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