The DNA Default and its Discontents: Establishing Modern Parenthood

55 Pages Posted: 31 Mar 2016 Last revised: 4 May 2017

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: March 28, 2016

Abstract

Most contemporary family law scholarship assumes the propriety of a DNA default for establishing parenthood - a presumption that, in the absence of marriage, whoever had the sex with the mother that resulted in the child should be the father of the child. This article problematizes the DNA default. It demonstrates how the DNA default necessarily magnifies the legal and social importance of sex, discounts the legal significance of women’s reproductive labor, and marginalizes all children living outside the binary, heteronormative norm that a genetic regime necessarily edifies. When scrutinized, the DNA default looks just as moralistic and exclusionary as a parentage regime rooted in marriage. Very few people in contemporary family law scholarship acknowledge this problem, even as they fault the law for not being attentive to the struggles of non-marital parents. Attending to the needs of non-marital parents requires asking the preliminary question of who should be considered a parent, especially because in the low income communities in which the DNA default has the most salience – because marriage is rare – the DNA default fails to do the job it was originally designed to do: Provide for children. This article echoes the call for the law to support non-marital parenting, but it challenges scholars and the law to be much more careful when deciding how to fill the gap left by rejecting marriage as the root of parentage. It suggests that the law should expand the paradigms used in adoption and reproductive technology contracts, and try to replicate the cooperative norms engendered by marriage, to replace the void left by non-marriage with a parental registration regime capacious enough to include pluralistic family forms and sensible enough to demythologize sex.

Keywords: family, family law, legitimate children, illegitimacy doctrine, parenting, parenthood, same-sex marriage, biological determinism, sexuality, sexual regulation, parental investment, adoption, reproductive technology, alternative families, paternity, nonmarital families, social norms

JEL Classification: J12, J13, J16

Suggested Citation

Baker, Katharine K., The DNA Default and its Discontents: Establishing Modern Parenthood (March 28, 2016). 96 Boston University Law Review 2037 (2016). Available at SSRN: https://ssrn.com/abstract=2755741

Katharine K. Baker (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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Chicago, IL 60661-3691
United States
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