I have written from time to time about the marital presumption. This is one of the most important rules for assigning legal parentage today. The idea is that if a married woman gives birth to a child, not only is she the mother, but her husband will be presumed to be the legal father. (There are of course some circumstances under which a woman who gives birth may not be considered a parent in some state–see, for example the case I posted about earlier this week. But set that aside as unusual.) There are ways the presumption can be rebutted (these vary state to state) but the presumption remains the primary mechanism for establishing legal parenthood for almost all married men.
The presumption is quite old and its continued vitality has always interested me. You might think that given the relative ease of DNA testing these days some state would have done away with it, but not only has no state done so, I’m not aware of any move by any state to do so.
It’s also interesting because it doesn’t take much thought to realize the presumption is gendered–it isn’t written in gender neutral terms and it doesn’t have a gender neutral history. This means it is open to challenge because it treats men and women differently.
There’s one set of gender-based challenges I’ve discussed here before: What if the married woman who gives birth is married to another woman instead of a man? The answer for the most part is that here the presumption can be restated in gender-neutral fashion and typically is: If a married woman gives birth to a child her spouse (male or female) is presumed to be a legal parent of the child. (This also generally works for domestic partnerships and civil unions where those relationships are structured to provide the benefits of marriage.)
But there’s a second gender challenge that you don’t see very often, though I use it as a hypothetical: Suppose a married man fathers a child with a woman not his wife. Can you argue that the wife should be presumed to be the legal parent of the child? After all, what you’ve done here is switch round the male/female roles, and if we have some commitment to gender neutrality, then at least you must explain why substituting men for women and vice versa matters.
All of which leads me to this case–a recent court decision from New Jersey contemplating exactly this questions. It’s a case about surrogacy, which is one way the reverse gendered marital presumption might arise. TJS and ALS are husband and wife. They wish to have a child, but ALS cannot carry a pregnancy to term nor, it seems, can she produce eggs. Instead, the couple began with IVF using sperm from TJS and an egg purchased from a third-party. Two of the resulting embryos were then transferred to TF, a gestational surrogate. It sounds like only one child was born.
Now it is clear that under these circumstances TJS is the father of the child when it is born. ALS sought an order before the birth recognizing her as a legal parent of the child. This order was initially provided, but then it was questioned on appeal and in this opinion the appellate court finds she is not entitled to such an order.
The court takes some time to analyze the gender discrimination claim and, if you are at all interested in this sort of thing it is worth reading. I cannot say that I agree with all that the court has to say (there’s stuff in there about genetic relationships that you can imagine trouble me). But the court does a nice job of offering different ways to think about this problem. For instance, you can say this is a case about surrogacy while the analogous case with gender roles reversed are insemination cases and that those are quite different procedures.
Generally speaking the result doesn’t surprise me. I think we have become familiar with the idea that men are assigned parenthood through the operation of legal (or perhaps cultural) rules. The recognition of a woman as a parent, by contrast, has been much more firmy tied to her having given birth. That’s part of why surrogacy can be so troubling, I think.
Anyway, it’s something to think about on a Saturday afternoon.