Parentage Without Gender

Abstract

Dramatic changes in the family form over the last several decades have put increasing pressure on the parent-child relationship. This elevation of the parent-child relationship in law and policy means that parents have both greater rights and more onerous obligations than in a system that spreads responsibility for children more broadly. The question of what constitutes a legal parent-child relationship under American law has become increasingly important because of its primacy in the determination of rights and obligations, but also increasingly complex because of reproductive technology and changing patterns of childbearing. The complexity and lack of cohesion that characterizes modern parentage law is a reflection of the past. Or, perhaps more accurately, it reflects the law's attempt to preserve the legal traditions of the past despite oceanic changes in society and in family form. Courts and legislatures have tried to reason by analogy when developing parentage rules for modern families. But the vast differences between the traditional family - a heterosexual, married couple who conceived children only through sex - and the myriad types of new American families strain the analogy. Can parentage rules that turned exclusively on marriage or biological ties find use in situations involving neither?

This essay will explore the origins of parentage law, the questions raised by modern families, and the impact of the Obergefell ruling. When we remove gender from questions of parentage, what remains?

Keywords: family law, parentage law, same-sex couples - children, parent-child relationship, new American family, legal parents, adoption - legislation, lesbian co-parents, gay couples, Obergefell v. Hodges, surrogacy