Counting from One: Replacing the Marital Presumption with a Presumption of Sole Parentage

INTRODUCTIONNow that DNA testing allows certainty about genetic linkages, that the marital family is no longer the dominant setting in which children are raised,1 and that significant numbers of children are created using assisted reproductive technology (ART),2 the continued utility of the marital presumption3 is no longer useful.4 However, the presumption is just one method of assigning legal parentage of a child, and it operates as a part of a more complex scheme of parentage law.5 Thus, it should not be considered in isolation. Reconsideration of the marital presumption requires reconsideration of the entire framework by which we assign legal parenthood.6 In this Article I sketch one approach to that larger task.At the outset it is important to identify the theoretical context within which I operate: I am a feminist,7 and I am a supporter of, as well as a participant in, queer family law.8 Both of these perspectives infuse my analysis, and I approach the questions considered here from these perspectives.I begin with the proposition, shared by those at this conference as well as many others, that the marital presumption is problematic.9 There are a number of shortcomings that have been identified, some of which suggest specific remedies, and I will begin by considering these briefly.10 I will then turn to the question of how the marital presumption fits within the larger framework of legal parentage and how a revision of the larger framework of legal parentage can obviate the need for a marital presumption. Ultimately, I conclude that the best way to move away from the marital presumption is to abandon the presumption that all children should start life with two legal parents. Instead, I propose that we start counting from one. The latter part of this paper is a justification for this proposal.I. THE MARITAL PRESUMPTION IS PROBLEMATICThe marital presumption runs afoul of our societal commitment to equal treatment. Privileging children based on the formal marital status of their parents11 is fundamentally unfair.12 After all, the child has no control over the relationship status of its parents.13 This is perhaps the simplest and most general ground on which the marital presumption can be criticized. The more difficult question is how to remedy the situation.This requires more detailed consideration of the problems created by the marital presumption. Different formulations of the problem yield different solutions. For example, one objection to the marital presumption is that in many states, lesbian and gay couples are not permitted to marry. Since they cannot marry, they cannot invoke the presumption. This is so even where those couples have taken all the legal steps they can take to formalize their relationship to each other. Thus, children of this couple will have but one legal parent at birth, while children of an otherwise identical heterosexual couple who are married will have two. The heterosexual married family has all the legal protections of a two-parent family while the lesbian/gay family does not.14 This is a particularly focused variety of unfairness. This understanding of the problem yields to a simple remedy: the marital presumption can be extended to other marriage-like relationships.But there are deeper critiques of the marital presumption, and the extension of the presumption to domestic partnerships does nothing to address those critiques.15 Extension of the presumption moves a few more children, those of domestic partnerships (DPs) and civil unions (CUs), into two-legal-parent families, but it does nothing to address the fairness issues raised by children whose parents neither marry nor enter into DPs/CUs. Indeed, it arguably exacerbates the problems confronted by these nonconforming families by privileging the relationships most readily seen as akin to marriage-DPs and CUs. This further entrenches the contrast between those whose parents are in state-sanctioned relationships and those whose parents are not16 and raises the prospect that instead of ridding ourselves of the legitimate/illegitimate distinction, we will simply reinscribe it within the queer community, so there will be children of legitimate queer families and children of illegitimate queer families. …