Document Type

Article

Publication Date

2017

Status

Forthcoming

Abstract

In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements.

LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or the formalities of marriage or adoption. Their success in winning formal legal regulation culminated in the Supreme Court’s embrace of marriage equality in Obergefell v. Hodges, which is likely to increase once again the role of marriage in integrating prebirth intent with legal recognition of parentage for couples in intact unions.

At the same time, women have used the creation of families outside of marriage to form alternative families on the basis of a different type of private ordering. Nonelite couples are less likely to reach consistent understandings about their relationships before pregnancy, birth or the assumption of parental roles. Instead, community norms order these understandings. Such norms treat a decision not to marry as part of a system that gives mothers more say vis-a-vis fathers outside of marriage than within it. These relationships are a form of private ordering in that they reflect choices made in accordance with community norms rather than formal institutions or publicly-imposed mandates. These couples, who lack access to the family planning systems and lawyers who help inform elite practices, achieve their greatest autonomy in creating families of choice by staying out of court and often by staying away from each other.

The article shows how both of these systems are today under assault: the integration of marriage and elite planning is likely to weaken recognition of families on the basis of intent alone, and reforms are underway to reimpose elite family norms on nonelite parents, undermining their ability to create family terms on their own. This article concludes that the law ought to recognize the variety of arrangements parents adopt rather than apply a single model to all.

GW Paper Series

GW Law School Public Law and Legal Theory Paper No. 2017-21; GW Legal Studies Research Paper No. 2017-21

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