Long ago I wrote about the marital presumption of parenthood. This is a critical feature of parentage law. (Far more important, really, than surrogacy, which I’ve now been nattering on about for weeks.) The idea is that if a married woman gives birth to a child, her husband is presumed to be the father of that child. The post I’ve linked to discusses the reasons for that presumption. It is quite old, but remains in force virtually everywhere today and I’d guess it is the grounding of most men’s–certainly most married men’s–legal claim to parental status. After all, it’s not usual to do genetic testing when a married woman gives birth.
One question you might ask is how this presumption operates when same-sex relationships receive formal legal recognition–say when two women get married in Massachusetts? I’ll come back to that another time.
Today’s topic is news from Australia. It’s rather a curious measure that is discussed in that article. The proposal would extend the marital presumption to lesbians using IVF. But, at least according to this news report, it will not apply to gay male couples, children who are adopted are created via surrogacy or heterosexual sex. (I take it the last means unmarried heterosexual sex.) It’s part of a larger package of legislation recognizing aspects of lesbian and gay relationships. It may seem odd that the presumption applies for lesbians but not for gay men, and there is some obvious unfairness. But if you think about it, the presumption is deeply gendered from the get go, so perhaps the application isn’t really so odd after all?
2 responses so far ↓
Bill Singer // April 28, 2008 at 2:23 pm
That same presumption is the law in NJ. If a female same-sex couple (whether dom. ptr or civil union or married) has a child using an anonymous donor, both moms names are on the birth certificate from the moment of birth. In order to exercise their consitutional right ot travel, they still must do an adoption.
This option is not open to a male same-sex couple. No woman is allowed to give up her child until 48 or 72 hours after birth under any circumstances.
Nancy Polikoff // May 1, 2008 at 9:45 am
We are working on legislation in DC that would do the same thing…but it would be more than a presumption. It would establish parentage for anyone (male or female) who consents to a woman’s insemination with the intent to be a parent of that child. At the same time, it would make the donor a non-parent unless there is an agreement in writing to the contrary. This is the statute recently upheld against challenge by the Kansas Supreme Court.
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