A labor theory of legal parenthood.

• Author: Gillers, Shoshana L.

The right to raise one's child, free from governmental interference, is a fundamental liberty interest protected by a longstanding tradition of constitutional law.(1) Protection of the parent-child relationship presupposes an understanding of legal parenthood--who is considered a parent in the eyes of the law, and why. Surprisingly, this prior question of legal parenthood, the foundation upon which the tradition of family privacy rests, is unresolved in case law. While scientific technology has made biological parenthood easier to determine, the law is ambivalent about the role biological parenthood should play in answering the question of legal parenthood. In determining legal parenthood, courts and legal commentators often turn to nonbiological factors such as marital ties, contractual ties, the best interests of the child, or parental desert. While each of these factors on its own, or in some combination, could provide a coherent theory of legal parenthood, current law does not reflect such a coherent theory, but rather stumbles between the various possibilities.

Where biological parenthood and marital status coincide, as in the case of the traditional nuclear family, conflicts over the rights to the newborn do not often arise. There are several common circumstances, however, in which biological parenthood and marital status do not coincide and intense conflict over a newborn can ensue. The case of unwed parents is a common site of such conflict. Two people who do not necessarily have a long-term relationship, and do not necessarily plan to have children together, sometimes end up conceiving a child nonetheless. While both biological parents have contributed genetic material to the newborn, and the woman has chosen to carry the fetus to term, the marital tie is absent.

The extent of the biological father's right to be informed of the pregnancy and to have involvement in the child's life, as well as his responsibilities of support, have been vigorously debated by legal scholars.(2) The Supreme Court has addressed the rights of biological fathers numerous times,(3) and the Uniform Parentage Act offers an alternative account of legal fatherhood.(4) Each of these various responses to the question of an unwed father's rights and responsibilities necessarily rests on a theory of what constitutes legal fatherhood. Those who would equate the biological father's right to the child with the biological mother's equate his genetic contribution with her contribution of genetic material and gestational production. Those who require something more of the biological father require more than biology for legal fatherhood, but not for legal motherhood.

Surrogacy agreements also sever biological parenthood from marital status. The genetic parents, those who have contributed the genetic material, can be different than the gestational parent, the woman who has gestated the fetus, and different from the intending parents, those who have contracted and paid for the gestational services and genetic materials. Biological parenthood itself is fractured here, since the biological raw materials of genetics and the biological process of gestation can be separated. Biological parenthood and marriage are separated since the contractual parent is not married to the gestational parent, and sometimes not even to the genetic parent.

Surrogacy agreements have been the subject of much academic debate.(5) Separate from, and often prior to, the question of enforceability of such agreements is the question of legal parenthood. Is the surrogate mother the original parent by virtue of having gestated the fetus? Are the genetic parents the original parents by virtue of having contributed the necessary genetic materials? Are the intending parents, those who orchestrated the creation of the newborn, the original parents by virtue of contract?

A theory of what constitutes legal parenthood must be applicable to all of these cases: the happily married couple, the unwed father, and the surrogate mother. In addition to being consistent, a theory of legal parenthood must award parenthood in a way that respects all parties' liberty and equality interests.(6) In this Note, I propose a normative model of legal parenthood based on a Lockean labor theory of property that awards parenthood to the gestational mother, or those who commissioned her services. On this model, legal parenthood should be awarded to the gestational mother, the one who has invested the most labor in the developing fetus, and hence deserves parenthood the most. When the gestational mother has previously contracted out her labor, either completely, as through a surrogacy agreement, or partially, as through a marital agreement, the contract should be honored.

This Note focuses exclusively on the adult's perspective in the parent-child relationship. This perspective is somewhat anomalous in discussions of child custody. In most custody battles, the focus shifts from the adults' rights to those of the child. Various standards have been suggested and implemented in order to best serve the child's rights. The "best interests of the child" standard, or the "psychological parent" standard,(7) or the "respecting the wishes of the child" standard,(8) despite their differences and difficulties, are all similar in focusing on the child. The rights of the adults in these situations are not considered relevant.

Favoring children's rights over adults' rights makes sense intuitively. Treating the child as a means of protecting the adults' rights contradicts the Kantian aspiration of treating every person as an end, not a means to an end.(9) Courts' tacit assumption that adults' rights are irrelevant to discussions of custody seems to follow in this Kantian tradition. What then justifies this Note's exclusive focus on the rights of adults in formulating a model of legal parenthood?

Despite the omission of adults' rights in many child custody discussions, lurking not too far beneath the surface is an implicit recognition of adults' rights to children. In custody battles that arise from divorce proceedings, family courts do not allow just any adult to argue his or her case for custody, but listen only to the parents. When women deliver children, they routinely take home their baby, without having to prove that of the millions of prospective parents, they alone will provide the best environment for the child.

Though not necessarily discussed openly, there is an implicit recognition in American law that adults have certain rights to children that must be protected. This is as it should be. While respecting children's rights is often an important factor, it is not always useful in making a custody determination. In some instances, determining the child's best interests is just not feasible: Ranking adults by their parenting ability would be a bureaucratic nightmare, and forbidding women from taking their children home would diminish the incentive to bear them. Moreover, any such ranking would inevitably embrace certain prejudices and biases, for example, the idea that heterosexuality and affluence are markers of parenting excellence.(10) Even where it is possible to determine the child's interests, those interests might not lead to a definitive conclusion, as the child might be equally happy with either potential parent.

Thus, there exist situations in which focusing on the child's interests does not always lead to a clear answer. It is in these situations that focusing on adults' rights can guide the custody determination. Adults' rights to children are relevant in discussions of what I call initial custody--deciding who takes the infant home from the hospital. In cases of initial custody, the issue at stake is who is to be considered the legal parent. Adults' rights are also sometimes relevant in cases of what I call subsequent custody--when legally recognized parents fight over who will continue to have custody over the child.

The question of legal parenthood, the focal point of this Note, arises immediately at the moment of the child's birth. At that moment, a determination of who would be the absolute best parent is simply not a feasible or a practical approach. When courts cannot determine the best interests of the child, they must turn their attention to the rights of the adults.

The Note proceeds as follows: Part I provides a summary of the current laws and theories surrounding legal parenthood. Part II presents the labor theory of legal parenthood, and Part III addresses some problems with the theory. Part IV applies the labor theory of legal parenthood to subsequent custody decisions by requiring legal parents continuously to invest emotionally and physically in their children's development in order to maintain custody. Part V suggests legislation that would encourage and facilitate such investment, and Part VI provides a brief conclusion.

1. BACKGROUND LAWS AND CURRENT THEORIES OF LEGAL PARENTHOOD

   At common law, legal parenthood was closely linked to patriarchal notions of wife and child as property. As the law moved away from this patriarchal vision, it abandoned the patriarchal property understanding of legal parenthood, but did not replace it with an alternative theory of legal parenthood. While legal commentators have offered various theories, their theories are themselves incomplete, and the courts have not adopted any of them consistently. In this Part, I compare current laws governing legal parenthood with the common-law tradition, and highlight the current lack of a coherent theoretical underpinning. I then describe and critique three recent attempts to offer a theoretical framework of legal parenthood.

   1. The Legal Background

      At common law, the critical factor in determining legal parenthood was marriage. A married woman's children belonged solely to her husband,(11) who in turn had legal responsibility for them; an unmarried woman's children belonged to her alone,(12) while the...