Should a child be allowed two legal parents only if born into a marriage? For children of heterosexual parents, the answer, today, is definitively "no." Constitutional protection for parental rights does not permit the ties between an unwed father and his child to be severed simply because he is not married to the child's mother. But the answer is often different for the child of a lesbian mother. In a recent opinion, Debra H. v. Janice R., the New York Court of Appeals ruled that a lesbian co-parent- a woman who had participated in the conception, birth, and early rearing of her partner's biological child-was the child's second legal parent, but only because the two women had entered into a civil union during the pregnancy. Her functional participation as a co-parent was deemed irrelevant; it was not a basis on which parentage could be assigned. Legal parentage was derived, instead, from the marital status of the child's biological mother.
This symposium article considers the implications of this "new illegitimacy"- a regime in which the rights and welfare of the children of lesbians are dependent on the marital status of their parents, reminiscent of an almost forgotten era in which the same was widely true for all children.
Journal of Gender, Social Policy & the Law
Joanna L. Grossman, The New Illegitimacy: Tying Parentage to Marital Status for Lesbian Co-Parents, 20 Am. U. J. Gender Soc. Pol'y & L. 671 (2012)