By Professor Jessica Feinberg
My last few law review articles have addressed parentage issues. In conducting research for those articles, something caught my attention with regard to the law’s approach to determining parentage at the time of a child’s birth. Specifically, that the degree of meaningful choice the law provides to the person who gives birth (“the gestating parent”) in determining who is recognized as the child’s second legal parent at the time of the child’s birth, differs greatly depending on the gestating parent’s marital status, the method of conception, and the gender of the potential second parent. The law’s determination of the child’s second legal parent at birth carries immense significance not only for the child and the individual recognized as the child’s second legal parent, but also for the gestating parent. In my forthcoming article, “Parent Zero,” I set forth the current legal framework governing gestating parents’ choice; analyze whether there is any coherent theory that would explain the law’s vastly differing treatment of various categories of gestating parents; and propose a number of initial steps for creating a more just and coherent legal framework governing this issue.
While many gestating parents want a second legal parent to be identified at birth, the law does not accord all gestating parents’ wishes regarding who should be recognized as the child’s second legal parent the same weight. For example, current law provides an automatic, mandatory presumption of legal parentage to the individual to whom a gestating parent was married at the time of the child’s conception or birth. While the strength of the presumption and ability to overcome it at the time of the child’s birth differs depending on the jurisdiction and method of conception, married gestating parents generally have either limited or no meaningful choice in the determination of who is deemed the child’s second legal parent at birth. Unmarried gestating parents who wish for a woman to be recognized as the child’s second legal parent at birth also lack meaningful choice under the current legal framework. This is because voluntary acknowledgements of parentage (“VAPs”), the primary method of establishing an individual who is not married to the gestating parent as a child’s second legal parent at birth, extend only to men in the vast majority of jurisdictions. At the other end of the spectrum, gestating parents who were not married at the time of the child’s conception or birth and who wish for a man to be recognized as the child’s second legal parent are able to exercise a much greater degree of meaningful choice under current law. VAPs provide an efficient, straightforward mechanism through which unmarried gestating parents can establish the man of their choice as the child’s second parent at the time of the child’s birth.
The law’s vastly differing treatment of gestating parents’ choice in at-birth determinations of the child’s second legal parent based upon factors such as marital status, method of conception, and the potential second legal parent’s gender, is problematic. Notably, there is no underlying theory guiding the law’s approach to this issue that provides a coherent, consistent explanation for the differing treatment of the various categories of gestating parents. While there are a number of theories that, at first glance, could plausibly be guiding the law’s approach, a more detailed analysis demonstrates that the current legal framework governing gestating parents’ choice is inconsistent with each of these theories. There are, however, core principles that emerge from the analyses of the plausible theories that will be helpful in guiding future reform. Namely, that the gestating parent should have a significant degree of meaningful choice in determinations of the child’s second legal parent and that the law should facilitate at-birth parentage establishment in individuals who, at some relevant point after the child’s existence has become a reality, share with the gestating parent a cooperative relationship and commitment to raising the child as co-parents. These core principles should guide efforts to reform current law to create a more coherent, consistent, and just legal framework governing gestating parents’ choice.
Certain key aspects of the current legal framework – including its approach to married gestating parents and its restriction of VAPs to parentage establishment for men – are clearly inconsistent with these core principles, and these are the areas in which reform should begin. For one of these areas, the restriction of VAPs to parentage establishment for men, the type of reform necessary is straightforward. Namely, VAP laws should be amended so that men, women, and non-binary individuals who comply with the relevant procedures are able to utilize this mechanism to establish legal parentage. For the other area, the treatment of married gestating parents, reform is a more complex undertaking. One option is to maintain the marital presumption, but add an opt-out mechanism for gestating parents. Another possibility would be to do away with the marital presumption entirely, and make VAPs the primary mechanism of parentage establishment for second parents, regardless of marital status. While there are pros and cons to taking one approach over the other, each represents a viable option for meaningful reform.
This article is scheduled for publication in the UC Davis Law Review in the spring of 2022.