The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents

50 Pages Posted: 8 Nov 2016

See all articles by Joanna L. Grossman

Joanna L. Grossman

Southern Methodist University - Dedman School of Law

Date Written: 2012


Should a child be allowed two legal parents only if born into a marriage? For children of heterosexual parents, the answer, today, is definitively "no." Constitutional protection for parental rights does not permit the ties between an unwed father and his child to be severed simply because he is not married to the child's mother. But the answer is often different for the child of a lesbian mother. In a recent opinion, Debra H. v. Janice R., the New York Court of Appeals ruled that a lesbian co-parent- a woman who had participated in the conception, birth, and early rearing of her partner's biological child-was the child's second legal parent, but only because the two women had entered into a civil union during the pregnancy. Her functional participation as a co-parent was deemed irrelevant; it was not a basis on which parentage could be assigned. Legal parentage was derived, instead, from the marital status of the child's biological mother.

This symposium article considers the implications of this "new illegitimacy"- a regime in which the rights and welfare of the children of lesbians are dependent on the marital status of their parents, reminiscent of an almost forgotten era in which the same was widely true for all children.

Keywords: Lesbian Co-Mothers, Parentage, Second-Parent Adoption, Parentage, Marital Status, Unwed Fatherhood, Parental Rights, Constitutional Protection, Parent-Child Ties, Legal Considerations

Suggested Citation

Grossman, Joanna L., The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents (2012). American University Journal of Gender, Social Policy & the Law, Vol. 20, No. 3, 2012, Available at SSRN:

Joanna L. Grossman (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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