Unconstitutional Parenthood

50 Pages Posted: 22 Jun 2020

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: May 27, 2020


A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for childcare parenthood. These articles appear under such titles as "Constitution of Parenthood," "Constitutional Parenthood," "Constitutional Parentage," and "The Constitutionalization of Fatherhood." They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new forms of childcare parenthood, as well as new parentage law initiatives by state legislatures and courts. This article goes beyond these developments as it speaks to the as yet unrecognized limits on such constitutionalization.

The developments on childcare parentage go by varying terms, including residency/hold out parentage; de facto parentage; voluntary acknowledgment parentage; assisted reproduction parentage; and spousal parentage. While these forms vary significantly interstate, they have a common thread. None depend upon actual biological ties or formal adoptions. Rather, they depend upon other conduct which may occur preconception, postconception but prebirth, or postbirth. Relevant conduct may involve the acts of those then nonparents; of those then expecting or existing legal parents; or of both those who are then legal parents and nonparents. Such acts only sometimes encompass express, implied or apparent consent to new childcare parent status, with consent possibly needed from two legal parents; from one, but not both, legal parents; and/or from one then a nonparent. Such consent, only at times, must be expressed in a record.

The most troublesome new developments do not involve express, implied or apparent consent, but nevertheless subject people to diminished, if not eliminated, childcare rights. Often, they follow the presumed consent, common authority, and/or quasi-contract doctrines recognized in laws outside of the childcare setting. These developments raise significant questions which have not yet been adequately addressed by commentators, model lawmakers, or state legislatures or courts. These questions encompass constitutional losses for nonparents seeking childcare parent status where the nonparents have federal constitutional parentage opportunity interests. These questions also encompass constitutional losses of childcare rights for expecting or existing legal parents.

The article posits that any childcare parentage for those without biological or formal adoptive ties generally should only arise where there is actual or apparent consent on behalf of interested nonparents, expecting legal parents, and/or existing legal parents. It proceeds in five major parts. Each part reviews one new form of childcare parentage by exploring NCCUSL, ALI, and state law initiatives, as well as related scholarship. The childcare parentage forms are (1) residency/hold out parentage; (2) de facto parentage; (3) voluntary acknowledgment parentage; (4) parentage arising from assisted reproduction births; and (5) spousal parentage. The article explores the constitutional issues arising from each new form and suggests when new forms of childcare parentage should be forbidden and should be recognized.

Keywords: parenthood, parentage, Uniform Parentage Act, Lehr, Troxel, Michael H., de facto parent, spousal parent, presumed parent, assisted reproduction, genetic surrogate, gestational surrogate, voluntary acknowlegement parent, paternity, residency parentage, hold out parent, individual rights, family right

Suggested Citation

Parness, Jeffrey A., Unconstitutional Parenthood (May 27, 2020). Marquette Law Review, Vol. 104, 2020. Available at SSRN: https://ssrn.com/abstract=3612325

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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