The Constitution of Parenthood

120 Pages Posted: 7 Sep 2019 Last revised: 9 Mar 2020

Date Written: Feb. 29, 2020


This Article challenges the conventional assumption that the Constitution protects only biological parent-child relationships and makes an affirmative case for constitutional protection for nonbiological parents. Family law in a growing number of states legally recognizes nonbiological parents in a range of families—including nonmarital families, families headed by same-sex couples, and families formed through assisted reproduction. But in some states, nonbiological parents who have not adopted are treated as legal strangers to their children. When these parents turn to the Constitution to assert a liberty interest in their parent-child relationship, they find no relief. Courts conclude that only biological parents possess a right to parental recognition protected by the Due Process Clause. This biological understanding of constitutional parenthood often rests on a reading of Supreme Court precedents from the 1970s and 1980s involving the rights of unmarried fathers and the status of foster parents. This Article revisits those precedents—both to show that they present a more complicated approach to parenthood than conventionally assumed and to make clear the ways in which they are in tension with more recent constitutional commitments. Rather than elaborate a biological approach to parenthood, the Court’s decisions on unmarried fathers and foster parents view parenthood as a social practice. Even as these precedents provide useful insights about parenthood’s social dimensions, they are outdated. Decided decades ago, these decisions condone forms of inequality that now appear constitutionally suspect. Since they were decided, legal understandings of the family have shifted significantly. The Court itself has contributed to the changing legal landscape through its decisions on the constitutional rights of same-sex couples—who ordinarily include nonbiological parents.

Today, insights, principles, and values observable in constitutional precedents on parenthood and the family point toward a liberty interest in parental recognition that reaches nonbiological parents. To show how, this Article turns to contemporary family-law developments. Modern family law takes from constitutional precedents important insights about parenthood and yet updates the meanings and implications of those precedents. Family law’s functional turn has featured the vindication of nonbiological parent-child bonds based in part on interpretations of constitutional decisions on unmarried fathers, foster parents, and same-sex couples. In valuing established parent-child bonds in marital and nonmarital families, in different-sex and same-sex couples, and for men and women, family-law authorities have found support in the Court’s decisions but have taken those decisions in more inclusive and egalitarian directions. Even as this functional vision of parenthood has arisen as a formal matter in family law, it reflects and extends important constitutional commitments in ways that shed light on the parent-child relationships that merit recognition as a matter of due process. Ultimately, constitutional understandings of parenthood may evolve in light of insights from family law. This Article’s examination of the law of parenthood contributes to an account of the dialogic relationship between family law and constitutional law—demonstrating how family-law authorities develop approaches to the family that draw on and apply constitutional principles in ways constitutional decisionmakers may eventually adopt.

Keywords: parenthood, parentage, parental recognition, family law, constitutional law, due process, nonbiological, biological, same-sex couples, functional parent, intended parent, Obergefell, Pavan, Stanley, Lehr, Caban, Quilloin, foster parent, OFFER, Moore, Brooke S.B., de facto parent

Suggested Citation

NeJaime, Douglas, The Constitution of Parenthood (Feb. 29, 2020). 72 Stanford Law Review 261 (2020), Yale Law School, Public Law Research Paper, Available at SSRN: or

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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