Inconceivable: Status, Contract, and the Search for a Legal Basis for Gay & Lesbian Parenthood
Posted: 21 May 2018 Last revised: 4 Jun 2018
Date Written: 2018
With the fight for same-sex marriage in the rear-view mirror, gay and lesbian legal advocates have turned attention to legally securing parenting rights for gay and lesbian people against this new landscape. Adults in same-sex couples often share parenting responsibilities for children who are biologically related only to one of them. What, short of adoption, should establish the legal tie between a child and a non-biologically related adult? A consensus answer to that question has emerged among scholars and advocates of gay and lesbian family law: intent to parent and socially functioning as a parent. Using as an entry point the recent decision of the U.S. Supreme Court in Pavan v. Smith, which extended the “parentage presumption” to married lesbian co-parents, this Essay examines the consensus answer closely, characterizing the proposed shift as a move from status (biological parenthood) to contract (parenthood by intent or implied in fact). It invites the reader to consider such a move with particular mindfulness of the drawbacks that may accrue in the most vulnerable sectors of the gay and lesbian community.
Keywords: same-sex couples, parenting, adoption
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