Constitutional Parenthood

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

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.