The Constitution of Parenthood

95 Pages Posted: 7 Sep 2019

Date Written: August 31, 2019


This Article challenges the conventional assumption that the Constitution protects only biological parent-child relationships and makes an affirmative case for constitutional protection of 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 by asserting 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 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, showing that, rather than elaborate a biological approach to parenthood, they view parenthood as a social practice — even as they stop short of recognizing a due process interest for nonbiological parents. Those precedents are also decades old and condone forms of inequality that now appear constitutionally suspect. Since they were decided, legal and cultural understandings of the family have shifted significantly. The Court itself has contributed to the changing legal landscape with 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. 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 nonbiological 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 remedied the inequalities and harms reflected in them. 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.

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 (August 31, 2019). Stanford Law Review, Vol. 72, Forthcoming. 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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