E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For the Balkinization Symposium on Legal Pathways Beyond Dobbs.
Douglas NeJaime
The law too often treats parenthood as simply a biological fact—one that
naturally flows from birth or DNA. Indeed, courts refer to the birth parent or
genetic parent as the “natural” parent. The law
routinely treats biological parents as legal parents, regardless of whether they
are in fact parenting their children. At the same time, the law consistently
treats nonbiological parents as legal strangers, even when they have formed a
deeply bonded parent-child relationship.This legal system harms children, making their
relationships to the people who are parenting them less stable and secure. As
this brief essay shows, this system also perpetuates, yet obscures, inequality.
Same-sex couples are not
similarly situated to different-sex couples with respect to biological parenthood.
They typically include a parent without a gestational or genetic tie to the
child. Despite this, courts and legislatures fail to appreciate the ways in
which a biology-based system of parental recognition discriminates against
LGBTQ people. Consider just one example. Darla Grese and Denise Hawkins had a child together with donor sperm. They
raised their child for several years before separating. Eventually, Grese, the
biological mother, refused to allow Hawkins, the nonbiological mother, to maintain
her parent-child relationship. The
Virginia courts determined
that Hawkins, without a biological tie to the child, was not a legal parent.
Hawkins argued that a biological
requirement for parentage harmed LGBTQ parents. Unconvinced, the Virginia court held
that the state’s “definition of
parentage does not discriminate between same-sex and opposite-sex couples.” The
court saw no differentiation between a nonbiological mother in a same-sex couple and a nonbiological
father in a different-sex couple, reasoning that “the
non-biological/non-adoptive partner is not a parent irrespective of gender or
sexual orientation.”
On this view, biological connection is a neutral and benign feature of parental
recognition. For some, the exclusion of LGBTQ parents is not merely an incidental
consequence of a framework derived from nature; instead, it is the very reason
to adhere to the framework. Today, the appeal to biology provides a less
overtly hostile way to privilege the heterosexual, gender-differentiated
family.
Consider the growing
role of biological arguments in debates over assisted reproduction. These
arguments do not tend to treat all assisted reproduction as suspect. Instead,
they focus on assisted reproduction with donor gametes or through surrogacy.
Parents who rely on donor gametes or surrogates—i.e., nonbiological parents—are
viewed with suspicion in a way that parents who use their own gametes or birth
their own children—i.e., biological parents—are not. According
to Brian Clowes, the research director at Human
Life International, in vitro fertilization (IVF) should be limited to
married couples on the following condition: “The wife must contribute the egg
and the husband must contribute the sperm.” Similarly, Emma
Waters of the Heritage Foundation rejects
surrogacy in which male same-sex couples want a child “that they, by nature
cannot bear themselves.”
Conservative advocates
connect assisted reproduction to debates over parentage. Katy
Faust, the founder of Them Before Us, an
organization that purports to represent the interests of donor-conceived
persons, criticizes “services that create
motherless and fatherless children for singles and same-sex couples” in the very same sentence in which she impugns efforts to
“re-write legal parenthood so unrelated
adults can skip the adoption process and acquire parental rights with the
stroke of a pen.”This position, which rejects assisted reproduction and
parental determinations that detach parenthood from biological ties, necessarily
rejects LGBTQ families.
By appealing to biological
parenthood, commentators make it seem as though same-sex couples are being
excluded on the basis of nature, not animus. Waters, for example, urges readers to resist “the myth that a
synthetic same-sex coupling is equivalent to the natural family.” From this perspective, same-sex
couples are imposters; they can never create real families.
As references to “motherless
and fatherless children” suggest, arguments for biological parenthood
seamlessly lead to arguments not only against LGBTQ parenting but also in favor
of dual-gender parenting. According
to Faust, “Children have a right to both
biological parents.” In the next breath, she argues that children “actually
crave male and female parental love and receive unique and complimentary
benefits from both mother and father.” As
Waters observes, “when a same-sex couple uses
anonymous sperm or egg donations, they deprive the resulting child of either a
mother or father.” The appeal to biological parenthood thus becomes a
stand-in for arguments against LGBTQ parenthood and in favor of gender
complementarity.Arguments for biological parenthood can smuggle in
arguments that rely on sex-based stereotypes—requiring a mother and father
without clarifying exactly why.
Women, as a class, suffer
in this system. Motherhood is seen as a woman’s “natural” destiny. This
stereotypical view consigns women to gender-based roles and justifies such
roles in biological terms. Of course, this is the same view that justifies
restrictions on women’s reproductive autonomy—prohibiting abortion so that the
social role of mother flows inevitably from the physical fact of pregnancy.
Within this system, women who parent children in the absence of a biological
tie struggle to be treated as real parents. The law fails to credit these
nonbiological mothers’ critical work of caregiving, seeing these women instead
as inadequate substitutes for the real thing.
Ultimately, we are left
with a biological system of parenthood that reinscribes the traditional family
without saying so explicitly. This system denigrates LGBTQ parents and harms
women. Yet those suffering from these group-based injuries struggle to clearly
name them, working against a regime that justifies itself by appeal to nature.
Douglas NeJaime, Anne Urowsky Professor of Law, Yale Law
School, douglas.nejaime@yale.edu