ABSTRACT. In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality--women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner--often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.
Today, the law increasingly accommodates families formed through ART, and, in doing so, recognizes parents on not only biological but also social grounds. Yet, as courts and legislatures approach the parental claims of women and same-sex couples within existing frameworks organized around marital and biological relationships, they reproduce some of the very gender- and sexuality-based asymmetries embedded in those frameworks. With biological connection continuing to anchor nonmarital parenthood, unmarried gays and lesbians face barriers to parental recognition. With the gender-differentiated, heterosexual family continuing to structure marital parenthood, the law organizes the legal family around a biological mother. Against this backdrop, nonbiological mothers in different-sex couples, as well as nonbiological fathers in same-sex couples, struggle for parental recognition.
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood's social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
AUTHOR. Visiting Professor of Law, Harvard Law School (Spring 2017); Professor of Law, UCLA School of Law (on leave, 2016-17); Faculty Director, The Williams Institute. For helpful comments, I thank Kerry Abrams, Bruce Ackerman, Anne Alston, Susan Appleton, Carlos Ball, Betsy Bartholet, Anita Bernstein, Stephanie Bornstein, Michael Boucai, Don Braman, Courtney Cahill, Naomi Cahn, Bennett Capers, Beth Colgan, Scott Cummings, Anne Dailey, Doron Dorfman, Nancy Dowd, Liz Emens, Bill Eskridge, David Fontana, Pamela Foohey, Dov Fox, Cynthia Godsoe, Janet Halley, Deborah Hellman, Clare Huntington, Courtney Joslin, Issa KohlerHausmann, Tony Rronman, Holning Lau, Chip Lupu, William MacNeil, John Manning, Kaipo Matsumura, Serena Mayeri, Martha Minow, Melissa Murray, Sasha NatapofF, Kim Pearson, Jean Koh Peters, Richard Re, Judith Resnik, Laura Rosenbury, Cliff Rosky, Sharon Rush, Steve Sanders, Liz Schneider, Naomi Schoenbaum, Elizabeth Scott, Kate Shaw, Reva Siegel, Peter Smith, Gary Spitko, Ed Stein, Gregg Strauss, Julie Suk, David Super, Nelson Tebbe, Deborah Widiss, Jordan Woods, and Emily Zackin, as well as participants at the 2016 International Baby Markets Congress at UC Irvine, the Equality Roundtable at Cardozo, the Public Law Workshop at Harvard, and faculty workshops at Brooklyn, Cardozo, Florida, Indiana, George Washington, San Diego, Virginia, UCLA, UConn, and Yale. For excellent research assistance, I thank D'Laney Gielow, Sanya Kumar, Ian Lumiere, Marissa Medine, Erin van Wesenbeeck, Seth Williams, and Morgan Yang, as well as the law librarians at UCLA and Yale. For outstanding work in the editing process, I thank the editors of the Yale Law Journal, especially Hilary Ledwell, Joshua Revesz, and Alex Saslaw.
ARTICLE CONTENTS INTRODUCTION 2264 1. MARRIAGE, BIOLOGY, AND PARENTHOOD 2271 A. Parenthood, Marriage, and "Illegitimacy" 2272 B. Parenthood's Liberalization: The Rise of Biological Authority 2275 1. Unmarried Fathers, Biological Connection, and Social Performance 2276 2. Gender Differentiation in Parenthood 2279 II. ASSISTED REPRODUCTION AND PARENTHOOD'S MODERN LIBERALIZATION 2285 A. Donor Insemination 2291 1. Different-Sex Couples, Marriage, and Nonbiological Fathers 2292 2. Same-Sex Couples, Marriage, and Nonbiological Mothers 2293 3. Donor Insemination Outside Marriage 2296 B. In Vitro Fertilization, Egg Donation, and Gestational Surrogacy 2298 1. Donor Eggs and Birth Mothers 2299 2. Gestational Surrogacy and Genetic Mothers 2301 3. Co-Maternity and Same-Sex Couples 2306 C. Egg-Donor Gestational Surrogacy 2307 1. Different-Sex Couples and Nonbiological Mothers 2309 2. Same-Sex Couples and Nonbiological Fathers 2312 3. Biological Mothers and the Legal Family 2314 III. SELECTIVE HARMS 2316 A. The Practical and Expressive Harms of Nonrecognition 2317 B. Sexuality- and Gender-Based Judgments 2323 1. Biology, Marriage, and Sexual Orientation 2323 2. Marriage, Biology, and Gender 2326 IV. RECONSTRUCTING PARENTHOOD 2331 A. Equality Commitments and Recognition of Parenthood's Social Dimensions 2332 B. Reorienting Parentage in Family Law 2337 1. The Marital Presumption 2339 2. Voluntary Acknowledgments of 2343 Parentage 3. The Regulation of ART 2345 C. Reorienting Constitutional Law on Parenthood 2347 1. Equal Protection and Parental Recognition 2347 a. Contested Sites of Equality Law 2347 b. Sexual-Orientation Equality and Parental Recognition 2350 c. Sex Equality and Parental Recognition 2352 2. Equality and Parental Liberty 2357 CONCLUSION 2359 APPENDIX A 2363 APPENDIX B 2367 APPENDIX C 2370 APPENDIX D 2373 APPENDIX E 2376 INTRODUCTION
Those who form families through assisted reproductive technologies (ART)--donor insemination, in vitro fertilization, and gestational surrogacy--frequently establish parental relationships in the absence of gestational or genetic connections to their children. (1) In seeking legal parental recognition, they do not deny the importance of biological ties, but simply urge courts and legislatures to credit social contributions as well. (2) In other words, they ask for recognition that turns on factors such as intent to parent, parental conduct, and family formation. (3) Yet law fails to value parenthood's social dimensions adequately and consistently. This failure has significant and painful consequences in the lives of parents and children. Those who have been parenting their children for many years may find they are not legal parents. Some become legal parents only by engaging in the time-consuming, costly, and invasive process of adopting their children. Others, for whom adoption is impossible, remain legal strangers to their children. Indeed, some parents may not realize adoption is necessary until it is too late, perhaps when their relationship to the legally-recognized parent dissolves. (4)
Consider just a few examples. In Connecticut, a married different-sex couple had a child through surrogacy and raised the child together for fourteen years. When they divorced, the court deemed the mother, who had neither a gestational nor genetic connection to the child, a legal stranger to her child. (5) In Florida, an unmarried same-sex couple used the same donor sperm to have four children, with each woman giving birth to two children. They raised the children together until their relationship ended several years later, at which point the court left each woman with parental rights only to her two biological children. (6) In New Jersey, a male same-sex couple used a donor egg to have a child through a gestational surrogate. (7) The court recognized the gestational surrogate, rather than the biological father's husband (and the child's primary caretaker), as the second parent. (8)
Today, many courts and legislatures seek to promote gender and sexual-orientation equality in the family. Judges and lawmakers have repudiated gender-based distinctions in both spousal and parental regulation, (9) including gendered presumptions in child custody. (10) More recently, courts and legislatures have acknowledged same-sex couples' interest in family recognition. In extending marriage to same-sex couples in Obergefell v. Hodges, the United States Supreme Court sought to protect not only romantic bonds, but also parent-child relationships, formed by gays and lesbians."
Courts and legislatures claim in principle to have repudiated the privileging of men over women and different-sex over same-sex couples in the legal regulation of the family. But in parentage law, such privileging remains. As the examples above suggest, those who break from traditional norms of gender and dsexuality--women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner--often find their parent-child relationships discounted. (12) Accordingly, this Article explores what it means, in the world of marriage equality, to build a system of parental recognition that fully integrates families headed by same-sex couples in the ways that Obergefell contemplates. And it connects questions of sexual orientation to questions of gender,...