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The marital presumption of paternity, which arose from English common law, has served as a core component of the law governing parentage in the United States since the nation’s inception. Pursuant to the marital presumption, a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage. Historically, the marital presumption was extremely difficult to rebut, generally requiring proof of the husband’s non-access to his wife during the time of conception, the husband’s sterility or impotence, or adultery on the part of the wife. As these early grounds for rebuttal made clear, a husband was deemed the legal parent of a child born to or conceived by his wife during the marriage unless it was proven that the husband could not possibly be the child’s biological father. Today, the question of whether a biological tie exists between the husband and child, which can now be accurately resolved through simple DNA testing procedures, continues to be a core consideration in actions to rebut the marital presumption. The nationwide legalization of same-sex marriage, however, calls into question the future of the marital presumption, and, in particular, the future role that genetics-based considerations will play in the application of the marital presumption. ...

This Article sets forth a comprehensive analysis of the various methods states may utilize to restructure their marital presumptions in the era of same-sex marriage. The choices that states make in the process of restructuring their marital presumptions are of great importance. The law governing the establishment of parentage in the United States has reached a critical juncture—the historical reliance on genetics-related considerations in determining parentage increasingly is being called into question and states have begun to place greater importance on considerations such as intent and function in making parentage determinations. In restructuring their marital presumptions, states will be forced to reevaluate what considerations are most important in identifying the individuals entitled to recognition as a child’s legal parents, and the decisions that states make in this process likely will play a significant role in the modern development of the law governing the establishment of parentage.

The Article proceeds in the following manner. Part I first traces the history and development of the marital presumption, from its English common law roots to its current iterations under state law. It then explores recent state law developments regarding the extension of the marital presumption to same-sex couples and explains why structuring a marital presumption that effectively encompasses the same-sex spouses of individuals who give birth will require significant changes to current marital presumption standards. Part II considers how states could reconeptualize the marital presumption as promoting objectives unrelated to the identification of the individual most likely to be the child’s second biological parent. The alternative objectives explored include: the provision of parentage to the individual most likely to be the child’s second intended parent, the provision of parentage to the individual most likely to function in the role of the child’s second parent, the protection of marital family units from outside intrusion, the promotion of marriage as the preferred site for parentage establishment, and the furtherance of children’s best interests. Part III analyzes the various options available to states for restructuring the marital presumption and concludes by arguing that an approach to rebuttal that en-compasses both intent- and function-based considerations will be most effective in furthering the objectives that most states likely will seek to further through a modern marital presumption. Finally, Part IV explores the possibility of states establishing two distinct marital presumption standards, the applicability of which would depend upon whether conception occurred through sexual or nonsexual means.

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