The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents

INTRODUCTIONShould a child be allowed two legal parents only if born into a marriage? For children of heterosexual parents, the answer, today, is definitively "no." Constitutional protection for parental rights does not permit the ties between an unwed father and his child to be severed simply because he is not married to the child's mother. But the answer is often different for the child of a lesbian mother. In a recent opinion, Debra H. v. Janice R., the New York Court of Appeals ruled that a lesbian co-parent-a woman who had participated in the conception, birth, and early rearing of her partner's biological child-was the child's second legal parent, but only because the two women had entered into a civil union during the pregnancy.1 Her functional participation as a co-parent was deemed irrelevant; it was not a basis on which parentage could be assigned.2 Legal parentage was derived, instead, from the marital status of the child's biological mother.3 This symposium was convened to consider the implications of this "new illegitimacy"-a regime in which the rights and welfare of the children of lesbians are dependent on the marital status of their parents, reminiscent of an almost forgotten era in which the same was widely true for all children.The law governing lesbian co-parentage is complicated and varies a great deal by jurisdiction. In some states, the lesbian co-parent is a legal stranger to the child of her partner regardless of any steps taken to establish a parent-child relationship. In others, she can gain full "legal parent" status by virtue of a so-called second-parent adoption. In some, even without the benefit of adoption, she can be recognized as a quasi- or de facto parent, with varying and sometimes uncertain rights vis-a-vis her partner's child, based on the functional relationship between them. The authorization of same-sex marriage and marriage-equivalent statuses in several states has created a fourth possibility: parentage based on marital status. In some states, a lesbian co-parent can gain legal parent status by virtue of being married to, or having a civil union with, a child's biological mother. She is a legal parent of children born to her spouse or civil union partner in the same way a husband is often considered the legal father of children born to his wife during their marriage, regardless of his genetic tie to them.Although this last category is made possible by the success of the gay marriage movement-same-sex couples now can marry or obtain some equivalent status in more than a quarter of the states-the connection between parentage and marital status can be deployed to restrict, as well as to expand, the rights of non-biological mothers to gain recognition as legal parents. Can the non-biological mother only gain legal parentage status through formal legal ties like marriage or adoption, rather than based on the existence of functional parent-child relationships or the intent of the parties at the time of conception or birth to act as co-parents? That was the holding in Debra H., which is perhaps reflective of a disturbing broader trend.This development is ironic not only because it reflects a dramatic turnaround in the acceptance of same-sex marriage-something once verboten is now an essential gateway to other rights-but also because it contravenes a longstanding trend in law to disentangle legitimacy and parentage. While unwed fathers were once not considered fathers at all simply because they were not married to the mother of their children, today they can gain legal parent status regardless of marital status. Marriage can provide a shortcut for men-or their children-to establish a legal parentchild relationship; but, under modern constitutional principles, marriage cannot be the exclusive mechanism by which parentage can be obtained. For the most part, in this context, the question "who is a parent" is divorced from the question of whether the adults have a formal legal relationship with one another. …