Illegitimate Parents
Vol. 55
February 2022
Page 1583
This Article is the first to survey the parentage laws of all fifty states and assess whether they allow both members of unmarried same-sex couples to establish legally recognized relationships with their children. My research shows that only eleven states provide robust legal rights to unmarried same-sex couples and their children, while thirty provide only limited or uncertain protection, and nine offer no recognition at all. Most jurisdictions make it difficult, or even impossible, for both members of a same-sex couple to establish secure legal parent-child relationships with their children without getting married.
Before Obergefell v. Hodges brought marriage equality to the United States, many activists and commentators expressed concern that winning access to marriage would restrict, rather than enhance, LGBTQ people’s liberty. They claimed that marriage equality would force LGBTQ people to conform to heteronormative sexual values by entering monogamous marriages and that those who failed to do so would face further marginalization. This Article looks at the situation on the ground in all fifty states following marriage equality and finds a more complicated reality. Access to marriage has benefitted many same-sex couples who want to be parents directly, because by marrying they can access joint adoption, step-parent adoption, or the marital presumption. Some states have also liberalized their parentage laws post-Obergefell in ways that benefit both married and unmarried same-sex parents. But it is also the case that in most U.S. states, both members of an unmarried same-sex couple cannot establish a legally secure parent-child relationship with their child at birth. The non-biological or non-adoptive parent faces an uncertain child custody situation or has no right to custody at all; the only way a same-sex couple can both be full legal parents of their child is to get married. States that formerly excluded all same-sex couples from establishing joint parentage of their children now permit married couples access to legally recognized parent-child relationships, but unmarried same-sex couples are still shut out.
This Article creates a taxonomy of U.S. jurisdictions, dividing them into three categories: first, those that provide robust protections to all LGBTQ families including unmarried same-sex couples and their children; second, those that provide only limited or uncertain protection to non-biological parents in unmarried same-sex couples; and third, those that are hostile, offering no protection. It delineates the harms of conditioning parentage on marriage, and suggests that while anti-gay discrimination persists in many states’ family law regimes, unmarried same-sex couples have solid claims for recognition. State laws excluding LGBTQ people from legal rights to their children because they choose not to marry violate the equal protection and due process rights of LGBTQ parents, subjecting them to sex discrimination and abrogating their fundamental right to parent. A more pluralistic system of parentage laws may ultimately emerge; the 2017 Uniform Parentage Act would end the legal marginalization of unmarried LGBTQ parents if adopted by all the states. Congress could also act to protect LGBTQ families by requiring states to adopt legislation recognizing the parental rights of non-biological parents of children conceived through Assisted Reproductive Technology. Without such reforms, same-sex couples in many states will have no choice but to marry if they want secure parental rights to their children. Non-biological parents who fail to marry may be treated as legal strangers to their children and face permanent separation from them.