Timing Legal Parenthood
40 Pages Posted: 27 Dec 2021 Last revised: 18 Mar 2022
Date Written: September 1, 2021
When does a parent become a parent? This Article examines this question through a novel framework that analyzes the tension between an individual’s evolving self-identification as a parent, and the law’s acknowledgment of the individual’s parental status. It focuses on two forms of that tension. The first concerns a scenario occurring after the birth of a child, when the self-identification as a parent is established, but the law has yet to formalize the parental status. The second involves a scenario occurring before the birth, when the self-identification as a parent-to-be—the process of becoming—is legally overlooked. The Article argues that this tension places certain individuals in a vulnerable position vis-à-vis their children, their partners, and their communities. It then considers what a legal understanding that acknowledges the subtleties of becoming a parent might look and how it could be implemented in practice.
This Article makes three original contributions. First, it draws conversations about the relationship between time and the law—which have expanded in other legal realms—into the legal context of parenting. Sourcing the Article's framework from the queer literature on time, this Article demonstrates the added value of directing our analytical attention toward time. Second, it offers various arguments for untethering the legal determination of parental status from the event of the child’s birth and establishing a framework that embraces the continuity of the parent's self-identification. Finally, this Article sheds light on the importance, in different legal contexts such as employment and medical malpractice, of acknowledging the process of growing into one’s identity as a parent before the child's birth while considering the trade-offs of this acknowledgment.
Keywords: parentage, parenthood, artificial reproductive technologies, same-sex, LGBT, queer, temporality, discrimination, sexual orientation, reproductive malpractice
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