The Marital Presumption and Gender Neutrality–OK Up To A Point, But No Further

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.

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11 responses to “The Marital Presumption and Gender Neutrality–OK Up To A Point, But No Further

  1. Marital presumption is the heart of everything wrong with the assignment of parentage. It absolutely must end. I’m going to put everything I have into making sure that law ends before I die.

    • At its best, the marital presumption provides a simple way of assigning legal parenthood. If you think about it, I think you might find that in a substantial majority of cases it will produce the same outcome you would favor–the two people who end up as legal parents via the marital presumption are also those who are genetically related.

      That ought to lead to a focus on those cases where the marital presumption yields a different result than DNA testing would. Now in some of those, everyone involved knows that–I’m thinking here where the married couple used third party gametes (or possibly where the woman was pregnant before the spouse met her/married her). Then there are some where the husband does not know that DNA testing would show that he not related to the child.
      (I’m not sure we know which of these is a larger category.)

      I’m not sure I see what good you think would result from erasing the marital presumption in the first category of cases. I suppose more legal steps would be necessary to ensure legal parenthood as the couple intended it to be assigned, which would make it more expensive and less convenient? Of course, some people would fail to do that and so there would be a messy case from time to time.

      Perhaps the result you desire is that use of third-party gametes would become more complicated/legally risky and so fewer people would do it? Abolishing the marital presumption is an indirect way to do that and may have unanticipated costs along the way.

      • Right yup and all done without restricting anyone’s reproductive freedom. Just hold everyone accountable for their own offspring and nobody gets the short end of the stick or more stick than they deserve.

  2. If we’re going to claim the marital presumption is gender discriminatory, are we also going to claim insurances are discriminatory if they don’t cover pap smears for men or prostate cancer screenings for women?
    Sheesh. this is biology folks. You can not “presume” what is impossible.

    • I think you are pointing us at what makes this so tricky–there are real biological differences here. But what exactly is it that you say is impossible and why is it impossible? Is it that it is possible to reassign legal fatherhood at will (because legal fatherhood isn’t “real”, because we’ve gotten used to the idea that we assign fatherhood in ways that serve our interests, or for some other reason) while it isn’t possible to reassign legal motherhood because legal motherhood is rooted in biology and therefore seems real? This is what really interests me here–that there is something fundmentally different in how we think of the ways in which men and women become parents.

  3. Julie wrote: 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.)

    If anyone was asking me, I would structure domestic partherships and civil unions so that they would provide all the benefits and liabilities of marriage with the exception of the marital presumption. And I would then advocate that such a status be made available to homosexual partners.
    (I would then advocate to allow second parent adoption but only after meeting extensive de facto parenthood criteria)
    Win Win for everyone involved.

    As it stands now; domestic partnerships are attacked both as being too much like marriage, or as being different and therefore unequal. But

    • I’m not sure I understand why you’d extend the marital presumption to heterosexual couples only. (But maybe I’m not reading your suggestion right?) Particularly where both a different sex and a same sex couple are using assisted reproduction and third party sperm, why would you treat the two couples differently? Or would you only use the marital presumption for cases outside of ART?

      • because with heterosexual couples there is no government invasion of privacy.
        i suppose you might say i’m supporting secrecy. which in a way is true, since i although i’m not saying secrecy is good, i am saying that its not the governments job to bust them.

        • We have all sorts of proof requirements for attempting to prove the technical thing called paternity in our attempt to establish the truth. We require 8 kinds of proof that she’s really the mother if she gave birth at home attempting to discerne if she’s not really the mother. They make them prove it when citizenship is on the line. We make them prove it if someone raises the issue later on down the line. There is no privacy on this issue. If you have offspring you can fully expect the law to hold you accontable for them and that you don’t have the right to hide the truth of that matter from anyone they will hunt you down and test you if they need to in order to figure out who the father is. We don’t need to make it easy for people to get away with lying. This would not be a problem if it were their information they were trying to keep private and conceal but it’s not Ki, the information they want to hide is information that belongs to other people it defines who they are in relationship to other people, it’s medically pertinent to other people and their kids. If the information was only related to them and their medical treatments that would be fine but it’s not – we are talking about another human being’s identifying records, their vital records and an entire family’s ability to get access to accurate information. We could just offer everyone a maternity and paternity test as a prescident to certification as a vital record and if it were refused then the record would state it was refused but they are swearing under oath that the person named on the certificate is their offspring and that they are not misrepresenting their relationship to that person and that if it is later found not to be true the record will be corrected.. It’s entirely fair and reasonable that people should have the expectation that the truth will be recorded whether they like it or not and they should not get to edit or alter information that is critical to other people. I cannot believe you guys – because the truth of what donor conception really is and really looks like you don’t think it would be good for moral society to cop to whats actually going on its just way to alternative to write it all down and hold people accountable for their actions. Better that they lie and falsify records to make it look the way they want to sell it.

          You know Ki falsification of records and giving people an edited version of the truth that paints a rosier picture is censorship too and if we allow it in one area of the government we open the door for all sorts of revisionist history and someday someone might want to hijack the truth on an issue that is important to you and truth and accuracy might not seem like such a loss leader when it’s your truth that’s being edited. It should not matter what the issue is we need to always strive to be fair and just and accurate and truthful and then everyone comes away from the table with no more than they deserve. I don’t know why that is so difficult for people to embrace.

  4. Even in ART, it’s something that no one can find out without either voluntary disclosure, or massive society wide government violations of privacy. The doctors who perform the in vitro fertilization aren’t the same ones who are signing the birth certificate.

    And I would hold an ART husband to the same standard as a cuckolded one
    with regard to challenging paternity

    This is a side topic, but I would not apply the marital presumption in the case when the outside adulterer successfully proves paternity. Only I wouldn’t respect a request just anyone walking off the street – there would have to be some evidence that he may be the father before ordering testing. This is true whether the mom is single or married. I hope that’s the way it’s done today.

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