Marriage and Parenthood

I suppose the last post naturally leads me to consider marriage and parenthood more generally.   Or at least in more detail.

The linkages between marriage and parenthood (and parenting) are intricate.  But for starters, I want to separate out two different kinds of linkages.

Sometimes being married (or being not-married) has an effect on your legal status as a parent.   So, for example, the husband of a woman who gives birth to a child is presumed to be the father.  This presumption can trump a genetic test which shows DNA from someone else.

For those who are curious, in MA and CA, the wife of a woman who gives birth is similarly presumed to be a parent.  But here there is a MAJOR CAVEAT:  Since many other states will not recognize the CA or MA marriage of two women, the parenthood of the spouse may not be recognized in those other states.   Thus, the spouse needs to adopt her own child in order to effectively protect her rights.  (And in case you think this makes the presumption gender neutral, you might need to think again.   Neither the wife nor the husband of a man who provides the genetic material to create a child is deemed to be a parent by virtue of their marriage to the DNA provider.)  

Similarly, as I just discussed last time, the spouse of a parent may be eligible to do a step-parent adoption.  This isn’t automatic, but eligibility to do the adoption (and thereby become a parent) is conditioned on marriage to the initial parent.

So that’s the first type of linkage of marriage to parentage.  Your status as a parent (or your eligibility to become a parent) is tied to your marriage to someone else.

I want to distinguish this sort of linkage between marriage and parentage from a second one, which is more in the nature of a political argument.   This is more commonly found in the popular press, but is less germane to my blog.   You see this sort of argument run both ways.   Sometimes you see assertions that marriage is all about having children and hence, people who categorically can not have children without intervention (that would be same-sex couples, in case you are not with me) are fundamentally not qualified to marry.   This argument is frequently offered as the basis for restricting access to marriage to different-sex couples only.   Note that this is really a qualitatively different sort of argument from the first set.  It isn’t about whether people are qualified to be parents or to be recognized as such by the law at all, really.  Indeed, it has been offered (successfully) in states where same-sex couples can and are legal parents.

A somewhat similar use of parent/marriage linkage, though deployed for precisely the opposite effect, is the argument that since lesbians and gay men are raising children in two-parent families, those families should have the benefits and protections of marriage, as it will be better for the children.   Again, this puts parentage first and marriage second.

Having laid out this framework, I want to focus on the first type of linkage–that where parentage itself is conditioned on being married.   It’s the more general version of the last post.   I’ll start that next time.

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