•  
  •  
 

Abstract

Professor Jessica Feinberg recently observed that state laws governing the ability of an individual who gives birth (“gestating parent”) “to exercise meaningful choice within the determination of who is deemed the child’s second legal parent differ drastically depending on factors such as their marital status, the method of the child’s conception, and the gender of the desired second parent.” She found many of the differences “problematic,” having “no underlying theory that provides a consistent explanation for the law’s current approach.” Moreover, she urged “reform . . . to create a more coherent and just legal framework governing the degree of meaningful choice individuals who give birth have in at-birth determinations of the child’s second legal parent.” Reform efforts, she concluded, should primarily focus on “the law’s approach to married gestating parents and the eligibility requirements for establishing parentage through VAPs” (that is, “voluntary acknowledgements of parentage”). Here, she advised “that the gestating parent should be able to exercise a significant degree of meaningful choice in the determination of who is deemed the child’s second legal parent at birth,” with the choice to be given “special weight.”

Professor Feinberg is not the first to urge that significant, if not absolute, deference be given to gestating parents in regard to the determination of a child’s second legal parent at birth. In 2006, Professor E. Gary Spitko concluded, “the biological mother enjoys the right to control access to her child including the right to determine who else shall be allowed to become a parent of the child.” In 2006, Professor Karen Syma Czapanskiy proposed that a birth mother be “empowered to decide whether she will be the child’s sole legal parent or whether she will designate whomever she wants,” with the choice “not constrained by presumptions in favor of her spouse or the child’s biological father.” In 2016, Professor Melanie B. Jacobs, focusing on “at-birth parentage determinations,” opined that “all parents must sign an intentional acknowledgment of parenthood that establishes the maternity and/or paternity of the child.” Under her approach, “a child will have a minimum of one parent,” presumedly the gestating parent. Effectively, she suggests no one else may be a parent at birth, even if married to the gestating parent, unless the biological mother recognizes the parentage of the other person or persons in writing.

In response, this article presents alternative reforms of new mothers-know-best laws. It first reviews the laws on prebirth and at-birth choices of second parents by gestating parents that take effect at birth. It then sets forth some thoughts on more coherent laws on such second-parent choices, recognizing that while some nationwide coherence is compelled by U.S. Supreme Court precedents, certain interstate variations are invited by other Court precedents, meaning coherence must be assessed at times on a state-by-state basis.

Download

Share

COinS