Lesbian Mothers, Marriage, and the Presumption of Parenthood

Yesterday’s post has left me thinking further about the presumption that the spouse of a woman who gives birth is a parent.  What should we make of it in the modern world and, in particular, what should it mean for lesbians–specifically for married lesbians.

There’s a lot of good legal scholarship on this, and given that it has been a while since I’ve looked at that, I’m a bit worried about getting it wrong.   But the presumption is an ancient one.   A husband was presumed to be the legal father of a child his wife gave birth to.   The presumption did not apply (or was rebutted) if the husband had been out of the country for ten months.

This latter point suggests that if it was known for certain that the husband could not be genetically related to the child, then he was not the father.   And that in turn suggests that, given the wonders of DNA, the modern presumption should give way in the face of DNA test.   Looked at this way, the presumption was a way of dealing with the uncertainty of paternity, and now that we can have certainty, we do not really need the presumption.  

This view suggests that legal fatherhood really is all about genetics.   If this is true of parenthood in general, then it isn’t very helpful to lesbians trying to create a two-parent family.   Ordinarily, the woman who gives birth the the child is genetically related to the child.   So she’ll be a parent on several counts, her spouse (assuming here they are married) may try to avail herself of the presumption, but could be blocked by reference to genetic certainty.

But I think there is a different way of thinking about the presumption.   When a husband discovers he is not genetically related to his wife’s child, in the ordinary case, he has discovered duplicity and deceit.   The existence of the child is irrefutable proof of infidelity.   Perhaps this breach of trust is such that he should be able to renounce responsibility for the child, should he wish to do so.

But a lesbian knows from the outset that she will not be genetically related to her wife’s child.   The results of the genetic testing do not tell her to a certainty that her spouse has been unfaithful.

The better analogy is to how the marital presumption functions when couples use ART.   The standard rule for heterosexual couples (assuming procedure is with the consent of the husband) is that the donor of genetic material is not the father, the husband is.   Now why does the presumption operate there?

I think it operates because that is clearly what the parties have in mind from the very beginning.  When a married couple jointly employ ART, they both mean to be the parents of the resulting child.   The law allows them to gain this status automatically, without resort to adoption or other equitable doctrines.

Put slightly differently, the presumption gives us a way to effectuate an agreement we might not otherwise be willing to give effect to.  Generally I cannot contract into being a parent.  But if I marry you and we go on ahead I have effectively ensured my parentage just as if we had entered into a contract.

It’s possible to describe the governing rule–the husband is the father–as the operation of the marital presumption in a particular context.  But it could also be understood as a different statement–one that has to do with the deliberate intention to become parents.   Viewed in that light, it would seem to apply to lesbian couples and gay male couples as well as heterosexual ones.

Further, if you go this route, it’s not at all clear to me why you need to restrict it to married couples.  I suppose it is safer to assume that a married couple has a shared intent to parent.   But there are probably better ways of ensuring that shared intent besides just assuming it.

I see one looming problem for me–this is clearly a step down the road to parenthood via intention, something which I have found troubling with regard to surrogacy particularly.  But that’s for another day.

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3 responses to “Lesbian Mothers, Marriage, and the Presumption of Parenthood

  1. To complicate things even further, it looks like in Canada, a child can have three legal parents. A gay “known sperm donor” and coparent to a lesbian couple, was recently awarded full parental rights by Toronto Justice Marion Cohen. See this link: http://www.nationalpost.com/news/story.html?id=1233365&p=1

  2. Good question; why does the marital presumption exist in the case of sperm donation?
    but i think the question is mistaken. in many locales, the marital presumption does NOT exist in the case of sperm donation, in many locales a separate law was enacted to cover this situation, the sperm donor statute.
    I think the primary reason for having a separate law is that the marital presuptions leaves open the opportunity for rebuttal and the state does not want the husband to rebut and potentially leave the kid on the state’s payroll.

    • There’s so much variation state to state that it is hard to say much generally. Some states do have special sperm donor statutes (a donor is not a father. The spouse of a woman using donor sperm is the legal parent.). Some states don’t have that but have a special variation on the marital presumption (I think) that applies to couples using ART–and the special variation restricts rebuttal. Some states don’t have either but have a marital presumption–and in different states that can be rebutted in different ways.

      Part of the reason the reason that there is such variation, I think, is that there is a lot of change here. On the one hand, husbands now might invoke the marital presumption to claim parental rights to a child. I think this was unimaginable when the martial presumption was devised hundreds of years ago. Then the concern that the husband would renounce the child and the marital presumption was seen to constrain (rather than empower) him. On the other hand, DNA is now readily testable and important to us. (Speaking generally here.). So some people (like many here) see no purpose to the presumption any more. It’s seen as an artifact of an earlier time that has outlived its usefulness. In this view, it should at least be made readily rebuttable by DNA testing. With these developments pulling in opposite directions different states have really chosen different paths.

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