Douglas NeJaime on Parental Recognition and Rights

Douglas NeJaime, Professor of Law at Yale Law School, answered questions about the legal status of parenthood and how it is changing with the increase is assisted reproductive technology and the legalization of same-sex marriage.

What problem in family law does your research and scholarship address?

Individuals have long parented children to whom they are not biologically related. And with the rise of assisted reproductive technologies and the growth of families formed by same-sex couples, more and more people are forming nonbiological parent-child bonds. But law has insufficiently and inconsistently recognized these individuals as legal parents, if they have not formally adopted their children. And this leads to a lot of practical—and often heartbreaking—problems for these families.

We have available to us legal mechanisms that can solve this problem. Law can continue to provide pathways to parental recognition based on biological connection, but it can also provide pathways based on nonbiological factors. Two leading candidates are intent and function.

For example, consider an unmarried different-sex couple who decides to have a child together using donor sperm because of the man’s infertility. We can have a legal rule that provides that a person who consents to a woman’s assisted reproduction with the intent to be a parent of the resulting child is a parent of the resulting child. The man would be recognized as a legal parent when the child is born because he is an intended parent.

Or consider an unmarried same-sex couple who has been raising a child together for several years. The woman who gave birth to the child is the legal mother, but what about the other woman? We can have a legal rule that recognizes an individual as a parent if, with the consent of the existing legal parent, that individual formed a bonded parental relationship with the child without expectation of financial compensation. The nonbiological mother would be recognized as a legal parent because she functioned as a parent.

How have we arrived at this point in American legal history?

Many people believe that law simply treats, and has always treated, biological parents as legal parents. But historically parentage was tied to marriage. A child born to an unmarried woman did not have legally enforceable rights with respect to either mother or father. When a married woman gave birth, law treated her husband as the legal father, even if he was not in fact the biological father. So the sense that biology determines parenthood is more recent.

In the second half of the twentieth century, when law (partially) repudiated the discriminatory treatment of children born to unmarried parents and extended parental rights to unmarried fathers, biological connection served as the starting point for legal recognition of the parent-child relationships.

Yet, for married couples, biological connection was still not necessary for men’s parental recognition. Not only did the law continue to presume that a woman’s husband was the child’s father, but law began to explicitly treat a man as a legal father if his wife gave birth to a child conceived with donor sperm. In other words, law has always been willing to deviate from biological facts, especially for married couples. And notice that the legal rule there is an early iteration of a rule based on intent; the husband is the legal father because he is the intended father.

What are some examples of the difficulties faced by parents not legally recognized as parents?

A lot comes with legal recognition as a parent. You can make decisions for the child, register the child for school, oversee the child’s medical care, and share benefits with the child (like health insurance). If a couple breaks up and only the biological parent is recognized as a legal parent, the harms are much worse. The biological parent can cut off contact between the nonbiological parent and the child. This is of course harmful to the parent, but it’s especially harmful to the child, who is likely to experience trauma when a primary attachment relationship is severed.

In your article “The Nature of Parenthood” (Yale Law Journal 126, no. 8, June 2017) you argue that a greater legal emphasis on the social dimensions of parenthood could promote greater equality in terms of parental recognition. How can this contribute to the promotion of equality?

Same-sex couples are not similarly situated to different-sex couples with respect to biological parenthood. Same-sex couples necessarily include a parent without a genetic connection to the child. Accordingly, a system of parental recognition designed around biological connection—which is the system we have generally maintained for nonmarital families and to a lesser extent for marital families—does not treat same-sex couples as truly equal.

For female same-sex couples who marry, law has increasingly treated the nonbiological mother as a legal parent because she is married to the biological mother. In other words, the law that has traditionally applied to a man married to the woman who gives birth can now apply to a woman married to the woman who gives birth. But what about same-sex couples who do not marry? To treat same-sex couples as fully belonging in our system of parenthood, law must provide paths to parental recognition not premised on biological connection and not requiring formal steps like marriage or adoption. Some jurisdictions have recognized this and have opened intentional and functional paths to parental recognition to unmarried nonbiological parents.

It’s not just lesbian and gay parents who are disadvantaged in our current system. It’s also women in different-sex couples. Notice that historically law could recognize a husband as a father even if he was not the biological father. But for women, parentage flowed inevitably from the biological fact of birth. Women in different-sex couples still struggle to attain parental recognition when they do not have a biological connection to the child. With assisted reproduction, a woman can be a gestational mother but use a donor egg; or she can be a genetic mother but require the services of a gestational surrogate. In deciding whether the gestational or genetic “mother” is the legal mother, law increasingly turns to intent; the woman who intended to be the mother is the legal mother. But for a woman who needs both a donor egg and a gestational surrogate, law requires her to adopt the child—regardless of whether her husband is the biological father. In other words, for women in different-sex couples, unlike men in different-sex couples, some biological connection is required. Some jurisdictions have repudiated this differential treatment by extending the doctrine of intentional parenthood to men and women who engage in assisted reproduction and are not biological related to the child.

What drew you to work on this legal issue, and why is it important in our current historical moment?

For many years, I’ve been focused on questions of LGBT equality and family law. Such questions obviously arose in the context of relationship recognition, and specifically marriage. But they continue to arise with respect to parenthood—and they present much more complicated issues. Simply allowing same-sex couples to marry does not treat LGBT people as full members of the community. If different-sex couples can attain parental recognition without marrying, shouldn’t same-sex couples as well?

This is also important for children. A system of parental recognition that accommodates same-sex couples and nonbiological parents is also a system of parental recognition that recognizes the need for stability in children’s lives and protects children’s attachment relationships. For children, it doesn’t matter if the person who is parenting them is biological related to them. What matters is the care and support that person provides. Law should respect and protect the relationships that children have with those who are parenting them.