Under current law, stark differences exist between different- and same-sex couples who welcome children into the world with regard to the ease through which the member of the couple who did not give birth to the child is able to obtain legal parent status. While a number of simple, efficient procedures exist for establishing legal parentage for different-sex partners of women who give birth, same-sex partners of women who give birth often have to go through significantly more complex, time-consuming, and expensive procedures in order to establish legal parentage. The inequitable treatment of same-sex couples in establishing legal parentage has extremely harmful consequences for these couples and their children, and legal reform to address the unfair treatment of same-sex parents is long overdue.
The hesitation to extend to same-sex couples the simple, efficient methods of establishing legal parent status available to different-sex couples likely stems from the longstanding tie between genetic connections and the establishment of legal parentage. While the law's historical privileging of genetic connections in parentage determinations poses some challenges for same-sex couples in obtaining access to the simple, efficient methods of establishing legal parentage in existence today, these challenges are far from insurmountable. This Article sets forth a comprehensive proposal for the federal government to require states to extend voluntary acknowledgments of parentage, which currently allow a birth mother's different-sex partner to establish paternity through the execution of a document at the time of the child's birth, to female same-sex couples who conceive children using sperm provided in compliance with state donor non-paternity laws. The proposal represents a logical, modest step in the right direction for ameliorating the difficulties faced by same-sex parents in obtaining legal parentage without requiring significant upheaval to state laws governing the rights of genetic parents or federal laws governing voluntary acknowledgments of parentage.
Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgements of Parentage to Female Same-Sex Couples, 30 Yale J.L. & Feminism (2018).