This is going to just be a short post to tie a couple of threads together. Yesterday I blogged about the marital presumption, using a recent MI case as my example. A few weeks ago I blogged about the problem of finding two legal parents for a newborn child. (That’s a particular problem for me, as the post I linked to and an earlier one explain.).
Anyway, it occurred to me that it was worth noting that the marital presumption is the way we generally solve the problem of finding a second legal parent for a newborn. One parent is the woman who gives birth and the second is her spouse–until recently her husband, but now in some states potentially her wife. Without this presumption it wouldn’t just be me wrestling with the question of how to identify a second legal parent for a newborn.
Now I know that some people will be jumping up and down saying that the answer is to do DNA testing on all newborns. But, as I said, I’m pretty sure no state does that. In fact, I don’t think any state has ever even come close to doing that. So while it is a theoretical solution (not one I like, mind you) it isn’t a practical one.
I wanted to make this point because I think it is easy to think that the marital presumption is something odd and archaic, dating from an earlier time. Some may say it is archaic, but it is doing absolutely critical work in our current legal system. Without it, we’d need some other way of finding a second legal parent for a lot of newborns. Not saying we shouldn’t have some other way to do that, by the way. Just offering the observation.