Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents

43 Pages Posted: 25 May 2017

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: March 2017


This article unpacks the relationship between the functional parenthood doctrine, constitutionally protected parental autonomy rights and intent-to-parent tests as they are applied in same sex parenting relationships. It argues that, with the advent of same sex marriage and voluntary acknowledgements of parentage, the functional parent doctrine is unnecessary and ultimately counterproductive to anyone interested in expanding legal recognition of non-traditional family forms. Functional parent doctrine asks court to employ traditional understandings of parenthood (“Who acted like a parent?”) in assigning parental status. These traditional understandings are usually, if not inevitably, dyadic, heteronormative, genetic, and gendered. In practice, the functional parent doctrine undermines the legitimacy of single parent families and any family that does not conform to conventional parenting patterns; it indirectly reinforces the notion that the only parents entitled to robust constitutionally protected parental autonomy are married, genetic heterosexual parents. Advocates and all those concerned with protecting the integrity of same sex parenting families would be better served by an intent-based system that asks the parties themselves, not judges, to legally declare their family relationship. At virtually no additional administrative cost, states can offer a parental registration system for same sex parents that puts the responsibility for defining legal families in the hands of the families and thereby allows those families considerably more freedom than the does the functional parent doctrine, to structure their relationships as they choose.

Keywords: Parenthood, Same Sex Parenting, Biological Parenthood, Same Sex Marriage, Illegitimate Children, Reproductive Technology

JEL Classification: K36, K00

Suggested Citation

Baker, Katharine K., Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents (March 2017). Chicago-Kent Law Review, Vol. 92, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=2972899

Katharine K. Baker (Contact Author)

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

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5391 (Phone)
312-906-5280 (Fax)

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