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After Marriage Equality: Dual Fatherhood for Married Male Same-Sex Couples

Jessica Feinberg

Vol. 54

February 2021

Page 1507

In most states, married male same-sex couples who conceive children via gestational surrogacy using sperm from one member of the couple and donor ova must pursue adoption in order to establish legal parentage for the member of the couple who is not genetically related to the child. This is because only a minority of jurisdictions have surrogacy laws that recognize the non-biological intended parent as a legal parent in this situation, and across the United States cisgender male same-sex couples are excluded from the longstanding non-adoptive marriage-based avenues of establishing parentage currently available to both different-sex couples and female same-sex couples. Marriage-based avenues of establishing parentage, such as the marital presumption of parentage and spousal consent to assisted reproduction laws, represent the most common way to establish legal parentage in an individual other than the person who gave birth to the child. The exclusion of male same-sex couples from marriage-based avenues of establishing parentage is harmful, unwarranted, and unnecessary. Parenting abilities do not depend on sexual orientation or gender. Children raised by male same-sex couples fare just as well as children raised by different-sex couples and female same-sex couples, and men who function as primary caretakers to their children are as capable and effective as women who function in that role. Excluding male same-sex couples from marriage-based avenues of establishing parentage reinforces gender-based stereotypes around caretaking that harm and confine women and men both in the workplace and in the domestic sphere. Moreover, the conclusive presumption of parentage based upon the act of giving birth, which presents a major barrier to the extension of marriage-based avenues of establishing parentage to male same-sex couples, is an outdated concept that fails to reflect the realities of modern medical technology and the diverse circumstances under which children are conceived today. This Article advances a comprehensive proposal for extending marriage-based avenues of establishing parentage to male same-sex couples. If implemented, the proposal will provide a more equitable and effective legal framework for parentage establishment. View Full Article

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