Constitutional Parenthood

Author:Michael J. Higdon
Position:Professor of Law, University of Tennessee College of Law
Pages:1483-1541
SUMMARY

Despite having recognized the constitutional rights of parents almost a hundred years ago, the Supreme Court has not weighed in on the subject of who qualifies as a "parent" under the Fourteenth Amendment in 30 years. In light of the Court's silence, the states have been forced to individually grapple with the issue of constitutional parenthood—a task made exponentially more difficult by the fact ... (see full summary)

 
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1483
Constitutional Parenthood
Michael J. Higdon*
ABSTRACT: Despite having recognized the constitutional rights of parents
almost a hundred years ago, the Supreme Court has not weighed in on the
subject of who qualifies as a “parent” under the Fourteenth Amendment in
30 years. In light of the Court’s silence, the states have been forced to
individually grapple with the issue of constitutional parenthood—a task
made exponentially more difficult by the fact that the last 30 years have
ushered in an avalanche of change when it comes to the American family.
With advances in assisted reproduction, the legalization of same-sex
marriage, and the increased frequency of divorce, remarriage and
cohabitation, states now regularly encounter claims of parental identity that
30 years ago would have been unimaginable. Nonetheless, the states have
persevered, adopting a number of approaches to deal with these increasingly
thorny issues. The problem, however, is that the constitutional protections that
are afforded parents now vary by state. Moreover, some states have defined
“parent” in a way that discriminates against families that do not comport
with that state’s conception of the “ideal” family. To solve this problem, this
Article makes two proposals. First, the Supreme Court must offer more
guidance on how states may define constitutional parenthood. Although a
definitive definition of the term is both impractical and unrealistic, the Court
can and should delineate the outer boundaries of that constitutional
standard. Second, taking a cue from some of the tests developed by the states,
this Article proposes what exactly those boundaries should be so as to help craft
a definition of constitutional parenthood that is more responsive to and
protective of the 21st century family.
I.INTRODUCTION ........................................................................... 1484
II.PARENTAL STATUS UNDER THE CONSTITUTION ......................... 1491
III. STATE APPROACHES TO “PARENTHOOD” .................................... 1502
A.ASSISTED REPRODUCTION ...................................................... 1503
*
Professor of Law, University of Tennessee College of Law. I am grat eful to the University
of Tennessee College of Law, particularly Dean Melanie Wilson, for providing generous financial
support for this project.
1484 IOWA LAW REVIEW [Vol. 103:1483
1.Artificial Insemination ................................................ 1503
i.Sperm Donor as Father ............................................. 1504
ii.Husband of Artificially Inseminated Woman as
Father ...................................................................... 1506
2.Gestational Surrogacy ................................................. 1508
i.Egg Donor as Mother ............................................... 1509
ii.Gestational Surrogate as Mother ............................... 1510
iii.Intended Mother as Mother ...................................... 1511
B.SAME-SEX PARENTAGE ........................................................... 1514
C.THE PSYCHOLOGICAL PARENT ............................................... 1518
IV. DEFINING TWENTY-FIRST CENTURY PARENTHOOD ..................... 1524
A.BIOLOGY PLUS INTENT .......................................................... 1525
1.The Limited Role of Biology ...................................... 1529
2.The Historical Link Between Parental Identity
and Intact Families ...................................................... 1529
3.The Importance of Safeguarding Familial
Equality ........................................................................ 1532
B.FUNCTIONAL PARENTHOOD ................................................... 1534
C.PSYCHOLOGICAL PARENTAGE AND STATE AUTONOMY ............. 1538
V.CONCLUSION .............................................................................. 1541
Constitutions fail when they ignore our nature.”1
I. INTRODUCTION
Problems arise when the Supreme Court interprets constitutional rights
in such a way that states are left uncertain as to the exact reach of those rights.
Consider, for instance, in 2002, when the Supreme Court ruled that it is a
violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment to execute defendants who are mentally handicapped.2 Despite
recognizing that “there is serious disagreement” as to “which offenders are in
fact” entitled to this protection, the Court nonetheless left “to the State[s] the
task of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.”3 In other words, the Court charged the
states with implementing this ban, including how to define the very term
“mentally handicapped.” In so doing, the Court’s opinion “created a maze of
statutory and judicial schemes for the protection of the intellectually
1. PHILEMON BLISS, OF SOVEREIGNTY 17 (1885).
2. Atkins v. Virginia, 536 U.S. 304, 321 (2002).
3. Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)).
2018] CONSTITUTIONAL PARENTHOOD 1485
disabled.”4 More specifically, by deputizing the individual states, the Court’s
decision led to a system in which those “[w]ho actually enjoy[] the benefit of
those protections varies by state, and the amount of proof defendants must
make to garner that protection is similarly varied.”5 Even more troubling was
the fact that some states applied the Court’s directive so restrictively that
individuals with questionable cognitive abilities were nonetheless being
sentenced to death.6 For that reason, the Court would soon have to issue
another opinion on this topic, clarifying that, in determining whether a
defendant qualifies as mentally handicapped, states could not simply rely on
a bright-line IQ test threshold requirement.7 Three years later, as states
continued to experiment with how to define the term, the Court weighed in
once again, this time holding that states must use legitimate medical
diagnostic tools when determining whether a defendant was mentally
handicapped.8 Thus, within a short period of time, the Supreme Court would
issue three separate opinions on how states must define “mental handicap”
for purposes of ascertaining a defendant’s constitutional rights.
A similar, yet unresolved issue stems from the way states may define
“parent.” Like the mentally handicapped, the Constitution provides
protections to parents—in this instance, under the Fourteenth Amendment.9
In fact, the Supreme Court has gone so far as to characterize the
constitutional rights of parents to the care and upbringing of their children
as being “perhaps the oldest of the fundamental liberty interests recognized
by this Court.”10 But who qualifies as a parent? Despite the fact that the Court
first recognized the constitutional rights of parents in the mid-1920s,11 the
Court, in sharp contrast to the Supreme Court’s guidance on the definition
of “mental handicap,” has not weighed in on the issue of parental identity in
over a quarter of a century.12 The Court’s reticence might be understandable
if it had already put forth a satisfactory or even a workable definition of that
4. Ethan A. Wilkinson, Article, Eighth Amendment Protections in Capital Proceedings Agai nst the
Intellectually Disabled: Assessing State Methods of Class Protection Through the Lens of Hall v. Florida, 40
L. & PSYCHOL. REV. 321, 342 (2016).
5. Id.
6. See Penny J. White, Treated Differently in Life but Not in Death: The Execution of th e Intellectually
Disabled After Atkins v. Virginia, 76 TENN. L. REV. 685, 692–710 (2009) (noting the varying state
policies regarding execution of the mentally handicapped).
7. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
8. See Moore v. Texas, 137 S. Ct. 1039, 1050–51 (2017).
9. See infra notes 49–53 and accompanying text.
10. Troxel v. Granville, 530 U.S. 57, 65 (2000).
11. Meyer v. Nebraska, 262 U.S. 390, 400 (1923), is credited as being the first case to
recognize the fundamental right of parents. There, when discussing th e Liberty Clause of the
Fourteenth Amendment, the Court stated that, “[w]ithout doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to [among other things,] establish a
home and bring up children.” Id. at 399.
12. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) (the last case to do so).
See infra notes 112–30 and accompanying text.

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