Parentage at Birth: Birthfathers and Social Fatherhood

INTRODUCTION Deciding who should be a child's legal parents at birth seems a simple task. Instinctively, the answer is the child's biological mother and father. Historically, the answer would have been different depending on whether the child was born within a marriage or not; marriage trumped biology, at least with respect to fathers.1 A husband was generally presumed to be the father of a child born to his wife, even if there was no genetic connection.2 Because the line between legitimacy and illegitimacy was jealously guarded, children born outside of marriage could not rely on genetic connection to identify their father or their mother, illegitimate children were viewed as the "children of no one," although legal responsibility for their care was placed on biological mothers.3 Fathers, other than husbands, could generally choose whether to be parents, rather than be assumed to have that responsibility.4 In addition, traditional gender roles dictated that fathers nurtured their children very little; their responsibilities were breadwinning, discipline, and managing the family as the patriarchal head of the household.5 Adoption was a mechanism to shift children from one set of parents to another, either voluntarily or involuntarily, when connected to state power to terminate parental rights, but adoption still presumed the existence of initial parents.6 A number of changes have moved parentage away from the marital/genetic/ patriarchal model that valued the marital family above genes or social fatherhood. First, the stigma attached to non-marital parenthood has eroded. The number of children born outside of marriage has significantly increased and now constitutes onethird of all births.7 The rate of cohabitation, whether temporarily before marriage or as a permanent relationship in lieu of marriage, increased tenfold between 1960 and 2000 to eleven million couples in 2000.8 Strong social and constitutional arguments have also eroded the harsh traditional distinctions between legitimate and illegitimate children. Second, fathers have asserted a new, more engaged model of fatherhood. Nurture is valued rather than simple biological or marital ties, or actions limited to economic breadwinning.9 Egalitarian norms have replaced the patriarchal model, so parenthood in a heterosexual family is seen as a partnership rather than as a hierarchy, and as genderneutral rather than gender-defined.10 Heterosexual norms also have been challenged by gay and lesbian families, suggesting fatherhood without motherhood and vice versa.11 Third, non-marital fathers have gained rights and responsibilities. Concern about the fair treatment of non-marital fathers, especially in adoption, has refocused the definition of parentage to support paternal rights. 12 Concern over the economic wellbeing of non-marital children has energized child support enforcement, generating stronger efforts at paternity establishment.13 From abysmal numbers thirty years ago, the paternity establishment rate for non-marital births is now nearly seventy percent. 14 The combination of imposing greater economic responsibility and linking child support to custodial rights has resulted in non-marital fathers having legal status parallel to divorced fathers. In theory, marital status now has little to do with custody or child support obligations.15 This erasure or minimization of marital status in the definition of fatherhood implicitly challenges the justifications for the marital presumption that traditionally trumped genetics. All of these changes pale, however, when compared with the technological change that has occurred with respect to establishing biological parentage.16 DNA testing now makes it possible to identify the biological parents of every child.17 It is possible to imagine establishing biological identity for every child in the not-too-distant future. DNA testing erases the historic distinction between fathers and mothers: mothers can be known because they give birth, while fathers have to be established. …