Illegitimacy and Sex, Old and New
American University Journal of Gender, Social Policy and Law, Vol. 20, pp. 347, 2012
39 Pages Posted: 16 Mar 2012
Date Written: March 15, 2012
This article examines illegitimacy as a constructed identity designed to regulate sex. The article appears as a part of a symposium entitled “The New ‘Illegitimacy’: Revisiting Why Parentage Should Not Depend on Marriage.” This title refers to the emerging tendency of courts to classify and accord different legal treatment to the children of same-sex couples depending on whether or not the children have married parents.
Part I of the article revisits the earlier understanding of illegitimacy, highlighting its emphasis on sexual morality. Part II explores the Supreme Court’s (partial) repudiation of the status, offering several different readings of the case law centered on, respectively, children’s equality, parental identification, and personal responsibility. Part III tests these readings by considering their application in cases about two classes of children born outside marriage: those conceived by sexual intercourse, on the one hand, and those conceived by assisted reproduction, on the other — raising questions reminiscent of the “old illegitimacy.” For the answers to these questions, this part then turns to the state’s interest in regulating sex, which harmonizes the seemingly inconsistent rules of parentage for the two groups of children while highlighting the policy choices that always underlie such rules. The conclusion emphasizes how any regime of parentage necessarily creates illegitimacy of one form or another.
Keywords: sexual regulation, children, parentage, equality, personal respsonsibility, assisted reproduction
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