Biology and Illegitimacy

Authors

Douglas NeJaime, Yale Law SchoolFollow

Abstract

This symposium Essay examines how biological parenthood, which in the twentieth century served as a mechanism by which to repudiate “illegitimacy” and to protect nonmarital parent–child relationships, today serves to justify new forms of illegitimacy and to separate unmarried parents from their children.

In the second half of the twentieth century, courts and legislatures renounced the discriminatory regime of illegitimacy, in which the children of unmarried parents enjoyed few rights to support or inheritance. They did so by raising the legal status of biological parenthood—extending rights to unmarried biological fathers and their children. Today, though, the vindication of biological ties is used to justify, rather than reject, discrimination against nonmarital parents and children. Same-sex couples raising children necessarily feature a nonbiological parent. In many states, if the couple is unmarried, the nonbiological parent is treated as a legal stranger to her child. In justifying this result, courts appeal to biological connection to construct the nonbiological parent as a third party and to grant the biological parent the right to exclude that third party.

As this Essay argues, the law’s understanding of the status of biological connection must shift in order to reject and remedy new forms of illegitimacy. Today, the repudiation of illegitimacy requires comprehensive protection for nonbiological parent–child bonds. It requires seeing biological connections as a mode of inclusion, rather than exclusion. It requires appreciating that the very framework built to accommodate families as they exist and to repudiate historical forms of subordination today is being used by some as a tool to refuse to accommodate families as they exist and to perpetuate historical forms of subordination. Biological connection certainly has a role to play in the law of parental recognition, but it has no role to play in excluding families who have long been excluded, in punishing parents who fail to conform to conventional norms, and in destroying children’s relationships with their psychological parents.

Recommended Citation

Douglas NeJaime, Biology and Illegitimacy, 74 SMU L. Rev. 259 (2021)