Yesterday I wrote about about ways of claiming parenthood and referred to a very common one–the marital presumption. I’ve discussed this in the past, but I think it is due for a re-cap, and then a bit more reflection on its meaning for lesbians and gay men.
Most states (perhaps even all states?) have a presumption in place that when a married woman gives birth her husband is presumed to be the father of the child. DNA tests are not required nor are they ordinarily performed. This is long-established legal presumption, dating back hundreds of years (to long before DNA tests).
You can think about it in at least two different ways. You could understand the presumption as as a substitute for genetic testing. We hope that in the vast majority of cases you would get the same answer using the marital presumption or a DNA test, so the presumption saves time and trouble.
Of course, the easier it gets to do the DNA test, the less persuasive this rationale becomes. If genetic connection is the sine qua non of parenthood (or at least fatherhood), then why not just directly test for that in all cases? If this is your view, then technology is rapidly making the presumption obsolete and we should probably dispense with it.
But as an alternative, you could think of the marital presumption as an affirmative statement about the definition of parenthood. It could be seen as a statement that, as a matter of law, the husband is the father of a child born to his wife. DNA is irrelevant–the critical relationship is the marital one between husband and wife. From this perspective, the presumption would be absolute: If you are the husband, then you are the father. End of discussion.
But in most states, the presumption currently in force isn’t absolute. It is often structured in a way that gives the husband the power to claim or reject parental status as he chooses. If he wants to be the father, the husband can invoke the marital presumption and prevent another man from coming forward with a DNA test to challenge his right. If the husband does not want to be the father, he can use those same DNA tests to deny paternity.
Now there are many variations in how the presumption is arranged, or more precisely how it can be rebutted, and these variations reflect different allocations of power. So, for example, sometimes the presumption can be rebutted by another man over the objection of the husband, if the other man acts with the support of the child’s mother. This has the effect of shifting considerable power to the mother, who can displace her husband or not, as she chooses. (Rarely if ever is the power to decide vested in the genetically related man.)
As marriage becomes accessible to same-sex couples, you have to think about how this presumption will play out. First off, you have to notice that the starting point for this presumption is always a birth to a married woman.
This is clearly bound up with the notion that giving birth makes you a parent. While we may not be sure about the other parent and we may even feel free to play around with various possible assignments of that second role, we do know who gave birth and she is a parent. (This assumption–birth=mother–is challenged by surrogacy, of course.)
Since you have to start with a married woman giving birth, you can apply the presumption to married lesbians, but you cannot apply it to married gay men. As far as I know, this is how it has played out thus far.
Assuming you do apply the presumption to a married lesbian couple, what do you do with the possibility of rebuttal via DNA evidence? Except in a very small number of instances, the non-birth giving woman will not be genetically related to the child. Thus, if the presumption can be rebutted by evidence of genetic testing, whoever has the power to call for the testing can dispel the presumption at will. This vests enormous power in one of the two women. I’m not sure there is any “best way” to assign that power. Perhaps instead, one should just make the presumption irrebuttable–the lesbian wife is a parent. End of discussion.