I have written frequently about the marital presumption, which is commonly invoked in a number of contexts. The basic idea is that when a married woman gives birth her husband is presumed to be the father of the child. (This is an ancient rule and you can learn more about it by reading through some of the older posts.)
Given that DNA testing now allows us to determine with certainty whether the husband is the source of the genetic material used to create the child there’s debate over the continued utility of the marital presumption. For some it’s become anachronistic, standing in the way of the truth (which is to say the DNA). For others, the presumption is an assertion about the importance and centrality of marriage and the DNA evidence doesn’t change anything.
The presumption comes up in many contexts and so perhaps it is difficult to generalize. Consider a case, for instance, where a male/female married couple is unable to conceive because the husband does not produce sperm. They elect to use third-party sperm. We all know that the child will not be a DNA match with the husband, but many would agree that in a case like this, the husband should be recognized as the legal father. The marital presumption gets you there. It functions as a joint enterprise theory.
The marital presumption may look quite different in the context of adultery. So suppose a married woman has an affair and become pregnant. Who is the legal father of that child?
Here it might be important to consider how presumptions operate. If the husband wants to say “it’s not my child” I think nearly all jurisdictions will allow him to do so by offering DNA tests. (Is anyone aware of a place that would not allow this?) If the wife would prefer to raise the child with her lover rather than her husband then she may be able to use the DNA tests to rebut the presumption that her husband is the legal father, too.
But what about the case where the husband and wife decide they want to raise the child together, within the marriage, even though it is clear that the DNA came from the lover? This is the instance where some would say the presumption enhances the centrality of marriage. And in some states the husband/wife win.
Kentucky was among these states as recently as 2008 but, as the Wall Street Journal Law blog reported, it is no longer. Here are a local news story and the opinion from a divided Kentucky Supreme Court. In this case, Kentucky reverses earlier law and allows the man who provided the DNA to assert paternity–which is to say, to assert legal parental rights.
I’m on my way out the door for a round of Memorial Day activities so there’s no time for further analysis just now. But I figured I’d set the table for a more thorough discussion later.