Parents, Babies, and More Parents

Abstract

This Article makes two basic points. First, the three-parent family is here. Once states accept that parenthood does not depend on either biology or marriage, then three parents are inevitable unless the states go out of their way to rule that adults who otherwise meet their definitions of parenthood will not be recognized. Second, as three-parent family recognition increases, there are difficult questions on how to manage the status of each parent. This difficulty arises because the two major trends in the family law—the recognition of a multiplicity of family forms and the insistence on parental equality—are on a collision course.

Accordingly, in the Article, we first address how the various frameworks for legal parenthood are consistent with recognition of more than two parents, how existing law is moving toward such recognition, and how marriage equality is likely to increase the pressure to acknowledge a variety of alternative family arrangements. Second, we review the existing cases and statutes that have fostered recognition of more than two parents, and document the failure to develop understandings about what such recognition entails when it comes to raising a child. Third, we discuss the problems that would arise if the courts were to try to recognize multiple adults as parents and accord them equal standing in accordance with existing law. Finally, we argue that the solutions lie in a more flexible approach that permits recognition of a primary caretaker principle in those cases with more than two adults who function as parents.

Keywords: family law, parentage, three parents, custody, support, marriage equality, functional parentage, de facto parentage, LGBT relationships

JEL Classification: K36