Constitutional Commentary, Vol. 32, No. 2, 2017
34 Pages Posted: 1 Nov 2017
Date Written: 2017
One might observe that over the course of the last century, constitutional protection for parental rights has grown more robust. But one might also observe that the law of parentage—the set of rules and doctrines that determine who is a legal parent—has expanded to at least potentially recognize a broader array of individuals as legal parents, including individuals such as unwed fathers, lesbian co-parents, intended parents, and sometimes even sperm donors. Yet little attention has been paid to the natural points of conflict between these two developments. When parental status is granted to one adult, the rights of any other legal parent are diluted. That’s not necessarily a bad thing—indeed, the other parent may have been the one to insist on recognition of the second parent. Or the legal parent’s sense of exclusivity may not have been warranted in the first instance. But parentage doctrine must square its rules with the constitutional protections to which any adult may legitimately lay claim. We need to be more explicit—and more careful—about how we take those constitutional parental rights into account.
In this essay, I first chronicle the development of constitutional parental rights from the beginning to the end of the twentieth century. Then, I consider the initial clash between parental rights and parentage law, which took place in the 1970s and 1980s fight over the rights of illegitimate children and unwed fathers. Finally, I consider four modern contexts in which constitutional parental rights and parentage law are most likely to cross paths—non-marital childbirth, sperm donation, surrogacy, and lesbian co-parenting. I conclude that while courts are generally cognizant of constitutional parental rights and their potential relevance to parentage determinations, they do not always grapple with those rights in ways that reflect a full grasp of their importance or a consensus on the best way to resolve the points of tension. Lawmakers and courts need to more explicitly account for parental rights when determining parental status, and scholars need to lay the groundwork for resolving the tensions between the two.
Keywords: parentage, family law, surrogacy, sperm donors, adoption
Suggested Citation: Suggested Citation