Jeffrey A. Parness (Northern Illinois University - College of Law) has posted Irrationalities in Legal Parentage: Gender Identity and Beyond (University of Baltimore Law Review, 2022) on SSRN. Here is the abstract:
The continuing legal (r)evolution involving parental interests in the care, custody, and control of children has been chiefly spurred by the dramatic increases in assisted reproduction births and informal child adoptions, that is, adoptions recognized only after the completion of post-birth acts, which often include same household residency and parental-like relationships. This (r)evolution has prompted limited changes, however, in legal parenthood in other contexts, including child support, probate, and tort. Changes in nonchildcare parentage laws are needed. These changes should not always follow the changes in childcare parentage as legal parentage should be defined contextually.
There are constitutional limits on parenthood laws, whatever the context. The constraints are found in both federal and state constitutions. One common constraint is that parenthood laws must be rational. Rationality is necessary under both substantive Due Process and Equal Protection. To date, the rationality limits have not been significantly applied to state policy choices, especially outside of childcare parentage. In fact, rationality requirements should now constrain many new American state parentage laws, as well as the influential parentage law reforms proposed by the Uniform Law Commissioners in its Uniform Parentage Acts. Further, some old nonchildcare parentage laws, as in tort and probate, once sensible, have become irrational over time as new childcare parentage laws, with their new public policies, have emerged. There has been insufficient coordination of many older parentage laws with the new public policies. Genetic ties, heterosexual marriage, and consensual sex generally underlie old laws, while same-sex marriage, parental-like acts, and intentions about future parenthood, as well as genes, opposite-sex marriages, and sex underlie many new laws.
This article is the first to outline the irrationalities in many old and new parentage laws. Irrationalities often arise when the laws employ gendered terms like mother and father, husband and wife, man and woman, and male and female. These terms require a parent to be gender identified by the state even when such an identity clashes with the parent’s own gender identification. More importantly, these gendered terms frequently clash with the public policies underlying parentage laws that are not dependent upon any form of gender identity. As a result, these terms create differential treatment of people, as between state identified men and state identified women, where the distinctions make no sense.
Parentage laws should generally be designated for a person, sperm donor, sperm provider, egg donor, egg provider, spouse, birthgiver, and the like. Nongendered parentage laws, for many of us, will not end our speaking of mothers and fathers. But such laws will sensitize more of us to the preferences of some people without any diminution of the underlying public policies. Some discomfort perhaps, but hopefully greater respect for all within our communities.
This article demonstrates the disconnect between gender identity and the policies underlying parentage laws in several contexts, including parenthood for childcare and child support purposes (as with some spousal, assisted reproduction, and voluntary acknowledgement parents); for probate purposes (as with decreased parents); for tort purposes (as with grieving parents); and for expecting parent purposes (as with some voluntary acknowledgment, assisted reproduction, and putative parents).
Beyond gender identity, irrationalities in parentage laws arise when there are distinctions without policy justifications. In the childcare parentage, there are troubling divides between a hold out/residency and a de facto parent. Outside of childcare, there are troubling parentage divides in the laws on survivorship, heirship, and personal injury claims.
