Constitutional parentage.

• Author: Grossman, Joanna L.

INTRODUCTION

Who is a legal parent? Advances in reproductive technology, the emergence of widespread lesbian and gay co-parenting, and the dramatic rise in non-marital childbearing have made it more difficult to determine which adults are legally tied to which children. Yet, sharper differentiation in constitutional terms between parents and non-parents has made the question of legal parentage even more important. It may seem obvious that the oldest of recognized privacy rights--the right of parents to the care, custody, and control of their children--would factor heavily in the determinations of something as important as parent-child relationships. But in the last few decades, during which parentage law has evolved at a breakneck pace, the role of constitutional parental rights has not always stayed front and center. This Article will bring those rights back to the foreground--showing the many ways in which constitutional parental rights haunt or help the development of parentage doctrine, which is as complex as the array of families it governs.

As Justice O'Connor wrote in Troxel v. Granville, the "demographic changes of the past century make it difficult to speak of an average American family." (1) It is likewise difficult to speak of a typical parentage rule or a typical role for constitutional parental rights. Although sometimes invisible, constitutional protection for parental rights lurks in every determination of parentage. In some situations, those rights are the reason why a state must recognize a particular person or a category of people as legal parents. In others, those rights are the reason a person cannot be recognized as a parent. And in still others, it is an invisible force that quietly dictates the way parentage law has taken shape or the procedures it employs to determine which adults have the rights and obligations that come with legal parent status.

One might observe that over the course of the last century, constitutional protection for parental rights has grown more robust. But one might also observe that the law of parentage--the set of rules and doctrines that determine who is a legal parent--has expanded to at least potentially recognize a broader array of individuals as legal parents, including individuals such as unwed fathers, lesbian co-parents, intended parents, and sometimes even sperm donors. Yet little attention has been paid to the natural points of conflict between these two developments. When parental status is granted to one adult, the rights of any other legal parent are diluted. That's not necessarily a bad thing. Indeed, the other parent may have been the one to insist on recognition of the second parent. Or the legal parent's sense of exclusivity may not have been warranted in the first instance. But parentage doctrine must square its rules with the constitutional protections to which any adult may legitimately lay claim. Courts, legislatures, advocates, and commentators need to be more explicit--and more careful--about how to account for those constitutional parental rights when determining parentage.

In this Article, I will first chronicle the development of constitutional parental rights from the beginning to the end of the twentieth century. This part will explore the scope and origin of those rights, as well as the central role they played in the development of the broader right to privacy. Second, the Article will consider the initial clash between parental rights and parentage law, which took place in the 1970s and 1980s fight over the rights of illegitimate children and unwed fathers. In that era, the Supreme Court made clear that state parentage laws were constrained by federal constitutional protection for parental rights, a tension that had never before reached the courts. The final section explores four modern contexts in which constitutional parental rights and parentage law are most likely to cross paths--non-marital childbirth, sperm donation, surrogacy, and lesbian co-parenting. In each context, I consider the ways in which constitutional parental rights have--or should have-affected the rules to determine which adults have rights and responsibilities with respect to which children. The influence of constitutional parental rights on parentage determinations is discernible, but not always explicit, predictable, or a matter of consensus across different jurisdictions. By analyzing the concrete ways in which constitutional challenges have shaped parentage law, I hope to contribute to the development of such a system that does boast those characteristics.

1. THE PROVENANCE OF CONSTITUTIONAL PARENTAL RIGHTS

   It is a fundamental tenet of family law that parents are imbued with constitutionally protected rights, an idea cemented by a series of cases in the early twentieth century. This began with Meyer v. Nebraska, in 1923, in which the Court invalidated a Nebraska law banning instruction at home or in school in any foreign language before ninth grade. (2) The state did have a right to try to "foster a homogeneous people with American ideals," but it was not strong enough to override the parents' right to have their children learn German. (3) The Due Process Clause protects individual liberty, which "denotes not merely freedom from bodily restraint but also the right of the individual... to marry, establish a home and bring up children... and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." (4) Nebraska's restriction on foreign-language instruction materially interfered "with the power of parents to control the education of their own." (5) Without any evidence that the mere learning of a foreign language was harmful to children, or that the government had some particular expertise about this matter, the state had exceeded its power. Our system is not, the court noted, the one suggested by Plato, under which "no parent is to know his own child, nor any child his parent." (6) But this approach, though "deliberately approved by men of great genius" was based on "ideas touching the relation between individual and state [that] were wholly different from those upon which our institutions rest." (7) While the ancient Greeks trusted only the state to raise and inculcate ideal citizens, American states trust parents, who operate within a sphere of personal and family life that is protected from unnecessary governmental intrusion. Only when the child faces imminent risk of harm can the state intervene, which it does primarily through the child abuse and neglect system. Parents were "within the liberty of the [Fourteenth] [A]mendment" when deciding whether to instruct their children in a foreign language. (8)

   This balance of power between parents and the state is a delicate one, but the Supreme Court repeatedly reaffirmed that the weight tips heaviest in favor of the parents. The Court's ruling in Pierce v. Society of Sisters followed just two years later. (9) Here, the Court invalidated an Oregon law that required children between ages eight and sixteen to attend public school. (10) States could require that children attend school. They could also regulate the schools and even the curriculum. But they could not insist that children be educated only in government-run schools. (11) A child was "not the mere creature of the state," whose education could be standardized without regard for the desires of "those who nurture him and direct his destiny." (12) Parents, the Court wrote, "have the right, coupled with the high duty, to recognize and prepare [children] for additional obligations." (13) That meant that the compulsory public education law in Oregon "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." (14)

   In the final piece of the trilogy, in 1944, the Court ruled in Prince v. Massachusetts that a child's guardian--her aunt--could be convicted for allowing her niece to sell religious pamphlets on the street in violation of state labor law. (15) Here, it was the child's rights that were invoked, and they were not sufficiently strong to override the state's interest in restricting child labor. (16) The Court reaffirmed the super-parent role of the state, charged with protecting "the welfare of children," but also made clear that power has to be balanced against "the parent's claim to authority in her own household and in the rearing of her children." (17) Citing Meyer and Pierce, the Court now pronounced it "cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." (18) In this particular case, the Court found the state's interest to outweigh the guardian's; "child employment" is among those "evils" most likely to justify state intervention. (19)

   Those early cases stood not only for robust parental rights, but also as the foundation upon which a broad right of privacy would develop. As the Court wrote in Moore v. City of East Cleveland, a case in which it recognized the right to live with extended family, "A host of cases, tracing their lineage to Meyer v. Nebraska and Pierce v. Society of Sisters, have consistently acknowledged a 'private realm of family life which the state cannot enter.'" (20) The Court returned to the scope of constitutionally protected parental rights in 2000, in Troxel v. Granville. (21) There, a plurality of the U.S. Supreme Court wrote with a broad brush when it sharply limited the rights of non-parents to seek visitation with children over the objection of a fit parent. (22)

   In Troxel, the Supreme Court considered the constitutionality of a Washington state statute that permitted "any person" to petition for visitation with a child and permitted courts to grant such petitions as long as it was in the best interests of...