Chicago-Kent Law Review

Volume 92 Issue 1 Changing American State and Federal Article 4 Childcare Laws

7-26-2017

Obergefell’s Ambiguous Impact on Legal Parentage

Leslie Joan Harris University of Oregon School of Law

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Recommended Citation Leslie J. Harris, Obergefell’s Ambiguous Impact on Legal Parentage, 92 Chi.-Kent L. Rev. 55 (2017). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol92/iss1/4

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 38779-ckt_92-1 Sheet No. 35 Side A 03/01/2017 10:44:39   ͹ǣͲ͸ . 1185,  EV .L.R v. Dean, 932 A.2d A.2d v. Dean, 932 ARV 1, 462–64 (Ariz. Ct. App. 1, 462–64 , 129 H 129 , * While a few state courts ac- While 1 thus conflicts with a central with a central thus conflicts ARRIS H hard work. e Constitution protects and whose protects e Constitution for the children to understand the the understand to children the for a subset of state-sanctioned mar- of state-sanctioned a subset family and its concord with other with other its concord and family the recognition, stability, and pre- the recognition, nd. Ct. App. 2005); Conaway nd. Ct. App. 2005); OAN and humiliate the children of same- and humiliate the children rried parents, relegated through no through rried parents, relegated sed by same-sex couples. The law in law in The couples. by same-sex sed J ͷͷ children suffer the stigma of knowing of knowing stigma the suffer children ult and uncertain family life. The mar- family uncertain ult and Cty. of Maricopa, 77 P.3d 45 Cty. more that the accepted the counterargument more ESLIE PARENTAGE and in their daily lives. daily and in their editors for their sought to dignify. And it humiliates tens of humiliates And it dignify. to sought 2 L ex rel. ’S LEGAL IMPACT ON AMBIGUOUS Ȍ ͳȀͳͺȀʹͲͳ͹ Marriage Equality and the New Parenthood Marriage Equality      ȋ OBERGEFELL    United States v. Windsor,133 v. 2694 S. Ct. 2675,United (2013) States Obergefell135Hodges,2600-01 S. Ct. 2584, v. (2015).   The lawyers who structured the campaign for marriage equality for The lawyerswho structured the campaign for marriage integrity and closeness of their own integrity and closeness diffic more fault of their own to a harm thus at issue here riage laws question makes it even more difficult difficult more it even makes question in their community families marriage from same-sex couples Excluding premise Without of the right to marry. their offers, dictability marriage their families areThey also somehow lesser. suffer the significantmate- unma by rial costs of being raised sex couples. thousands of children now being rai now being of children thousands DOMA's principal effect is to identify to effect is principal DOMA's the cou- differentiation demeans unequal. … The them make riages and th choices and sexual ple, whose moral the State has relationship 2. Standhardt v. Superior Ct. 1. Douglas NeJaime,  

Dorothy Kliks Fones Professor, University of Oregon School of Law. Thanks to Prof. Jeffrey Parness  2003); Morrison v. Sadler, 821 N.E.2d 15, 22–26 (I 22–26 Sadler, 821 N.E.2d 15, v. 2003); Morrison same-sex that denying these adults access to couples emphasized marriage theirharmed children whom they were actuallythis crafted raising. They argument at least partiallyin response to their opponents’ that claim oppo- site-sex marriedare uniquelywell-suited to families raising children and because it promoted on same-sex marriage was constitutional that the ban childbearing within marriages. opposite-sex 1236–40 (2016). 1236–40 for arranging this symposium and to the for arranging this symposium  *  ͵ cepted the opponents’ claim, 38779-ckt_92-1 Sheet No. 35 Side A 03/01/2017 10:44:39 A 03/01/2017 35 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 35 Side B 03/01/2017 10:44:39 7 L. L. L.   As , 20 , , 17 4 ͹ǣͲ͸ TAH  [Vol 92:1 [Vol & 383, L. ORDHAM ORDHAM , 1996 U ENDER 57 (Mass. 2003); 57 (Mass. 2003); , 84 F , , 84 F , Up from Marriage: Marriage Cases, 183 Marriage Cases, .J.G . 879 (1984). I discuss I . 879 (1984). OL EV Leaving No (Nonmarital) (Nonmarital) Leaving No In re Andersen v. King County, Andersen v. King County, This question is em- 6 .L.R , 30 C , Parentage without Gender A 8 N.E.2d 941, 956– A Right Not to Marry Marital Supremacy and the Constitution of Constitution and the Marital Supremacy 4 (2013); Obergefell v. Hodges, 135 S. Hodges, 135 v. Obergefell 4 (2013); Ct. Obergefell’s Conservatism: Reifying Familial and said that it supported the conclu- and supported the said that it ’s valorization of marriage to the possible detriment of detriment possible to the ’s valorization of marriage 855 N.E.2d 1, 1 (N.Y. 2006); 855 N.E.2d 1, 1 (N.Y. . 1277, 1283 (2015); Catherine Powell, . 1277, 1283 However, how the cases will affect this area s, 908 A.2d 196, 217–18 (N.J. 2006). (N.J. s, 908 A.2d 196, 217–18 EV 5 The Freedom to Choose to Marry Obergefell Reconsidering the Criteria for Legal Fatherhood Reconsidering the Obergefell CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Kaiponanea T. Matsumura, T. Matsumura, Kaiponanea .L.R Ȍ ͳȀͳͺȀʹͲͳ͹ & G. Joslin, Courtney (2012); 721, 722 L. note 1, at 1190; Joanna L. Grossman, note 1, at 1190; Joanna L. Grossman, AL Y and . 718 (2016). 717, ’ . (2015); Serena Mayeri, 23, 23 Of course, the Supreme Court also accepted the latter also accepted Court the Supreme Of course,   OL 3 EV see also ESOL  supra , some legal risk that legal parenthood , some scholars expressed concern about the .P , 103 C , R  . L. (2014). 496 495, Q. L. R  OC S ȋ AM , Goodridge v. Dep’t of Public. Health, 79 , Goodridge v. Dep’t Windsor   NeJaime,  ONFLICT Obergefell , 48 F , ENDER ORDHAM J. C See See, e.g.  and  For more than thirty years, law of parentage of the the central question than thirty For more , 84 F , 4.269 Ct. 2675, 133 S. United States v. Windsor, 5. 7. equality in before state courts of the movement the successes Even while celebrating marriage 6. and protecting children’s relation- for recognizing the arguments Many scholars have made 3. . 69, 71–73 (2015); 71–73 (2015); 69, . Ruth Colker, 1518 (2016); 1509, . . 461 (1996). 461 (1996). . .U.J.G   M EV EV ARDOZO EV

 Fronts other family arrangements generally. Clare Huntington, other family bedded in the excerpts from excerpts at the beginning the Supreme Court decisions bedded in the the one hand, the of this article. On that chil- claim Court is endorsing the than non- are dren whose parents and legally married are better off socially opinions could easilyboth marital children; the language in be taken to or prefer childrearing within marriage. rules that encourage support legal Child Behind 406–07 (2016). 406–07 the Nonmarital Family a few scholars have written, these cases also have the potential to affect the a few scholars to affect potential these cases also have written, the have broadly, relations law of parent-child particularlymore the law that deter- parent. mines who is a legal P.3d 384, 452 (Cal. 2008); Lewis v. 2008); Harri P.3d 384, 452 (Cal. Kerrigan v. Comm’r of Public Health, 957 A.2d 407, 474–75 (Conn. 2008); 2008); (Conn. 474–75 407, A.2d 957 of Public Health, Kerrigan v. Comm’r  v. Robles, 571, 635 (Md. 2007); Hernandez 56 were couples of same-sex children harmed denied were their parents when marriage.access to ͵ Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality Autonomy of Marriage Shadow in the Freedom, Solitude, and Individual the basic issues in Leslie J. Harris, 2584, 2600–01 (2015). 2600–01 2584, Windsor Windsor R R R A number of scholars have criticized of scholars A number On the other hand, the Court’s argument assumes members that both of the sion that bans on same-sex marriage and refusal to recognize same-sex same-sex to recognize and refusal marriage bans on same-sex sion that Amendment. the Fourteenth frommarriages violate jurisdictions other argument in argument ships to adults who take on parental responsibilities toward them. responsibilities toward them. One of the earliest and ships to adults who take on parental most influen- tial articles is Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When of the Nuclear Family Has the Premise Failed, 70 V 138 P.3d 963, 982–84 (Wash. 2006). 2006). (Wash. 982–84 963, 138 P.3d would become even consequence. as strongly tied to a an unintended would become more marriage Nancy D. Polikoff, The New “Illegitimacy”: Backward in the Protection of the Children of Lesbian Couples Winning A of the law is at best ambiguous. of the law is at best C has been when and to what extent determinations of legal parenthood has been when and to what extent determinations marriage to a child’s biological relationship, biological should be based on be a parent. as or intending to parent, or functioning 38779-ckt_92-1 Sheet No. 35 Side B 03/01/2017 10:44:39 B 03/01/2017 35 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 36 Side A 03/01/2017 10:44:39 , 9 57   .U.L. ͹ǣͲ͸  When LL 10 & L. 1 (2000). , 25 N. I The unspoken The unspoken 8 ENDER . L. Melanie B. 289 (2008); .J.G Rethinking Parenthood as an an as Rethinking Parenthood UB EO  J. P 2G 22 BYU . infra The Endurance of Biological Heteronorma- Connection: Children’s Interests and Information Disclosure: Who Provided the Who Disclosure: Children’s Interests and Information Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT  Annette R. Appell, Annette R.     infra. However, as non-marital However, as childbearing increased dramatical- non-marital ȋ 11   . 879 (1984).  notes 37–39 accompanying text and Part III See generally EV See See  Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents Nonlegal Lesbian Parentage Principles to Applying Intent-Based  The traditional law of parentageThe traditional law parenthood, protected functional At the root of the debate overAt the root is, legal parenthood children, the for rel- .L.R  8. would The exception be where one provides thewoman egg that is fertilized and then carried 9. The classic articleview is Katharine T. Bartlett, expressing this A 11. . 433 (2005); Naomi Cahn, Naomi . 433 (2005); 10.   EV

 though not expressly. It provided that marriage to a child’s mother was the mother to a child’s marriage It provided that though not expressly. only way that anyone except the mother became a legal parent (other than by adoption) through a centuries-old rule that is still viable today:a married the father of husband is presumed to be woman’s her children. Exclusive Status: The Need for Legal Alternatives when the Premise of the Nuclear Family Has Failed 70 V R to term by another woman. Even then, some people debate whether gestation counts as biological gestation people debate whether counts as by Even then, some another woman. to term motherhood.  2017] same-sex highly of the parents are in fact couple is though it even children, to the child. related biologically is likely one adult that only ͵ Egg and Sperm? Or Mommy, Do I Come Where (and Whom) Egg and Sperm? Or From, premise of the argument is that both are parents because both function as parents because both are is that both argument of the premise not always,often, but decision-making parents (and participated in the both led to the child’sprocess that conception and birth). between adults com- ties and legal relationships of blood ative importance adults who function as their relationships with own pared to the children’s Proponents of the view with them. bonds parents and develop emotional that the child’s relationships matter more argue that a child’s greatest need the child’s committed to stable relationship with an adult is for a close, protect such a relationship. the law of parenthood should welfare, and that Few, if any, seriously question the importance of protecting these relation- of protecting importance the question Few, if any, seriously the debate is over the and their adult caregivers; ships between children best way other social goals. all children generally and to advance protect to Jacobs, ly, relying primarily on marriage to determine legal paternity became un- legal paternitydetermine became on marriage to ly, relying primarily sustainable. The law of parentage for children has developed non-marital enforcement child support the needs of the One emphasizes two strands. system and bases legal parentage biological paternity. The other is used on mostly to determine custody issues and and related on the psycho-focuses between the child and the adults. How- logical and functional relationships ever, the biology-based while often taken as the norm, strand of the law is most childrenmost were born to women,married this rule served to identify as the legal father the man who was most likely child’s biological and to be a social father. tivity, Same-Sex Parenting and the Lessons of Adoption, Lessons of Adoption, and the tivity, Same-Sex Parenting 38779-ckt_92-1 Sheet No. 36 Side A 03/01/2017 10:44:39 A 03/01/2017 36 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 36 Side B 03/01/2017 10:44:39 : 12   ͹ǣͲ͸  [Vol 92:1 [Vol Massa- ]. ]. 15 ARENTAGE Maryland, P RRANGEMENTS OF CHILDREN 14 A The parents of most of 19 4507780 (N.Y. Aug. 30, 2016). (N.Y. 4507780 Reforming Paternity Law AW OF IVING L L The Basis for Legal Parentage in the various states balances The third and fourth parts exam- 18 AMILIES AND F Faced with the tacit expectation that legal that legal tacit expectation the Faced with S ’ 13 ONTEXT OF THE ONTEXT OF C., 28 WL N.Y.3d 1, 2016 C MERICA onomic Supp. Nov. 2015), CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW and Wyoming. Ȍ ͳȀͳͺȀʹͲͳ͹ ,A 59 N.E.3d 1133 (Mass. 2016). 17 OCIAL OCIAL The Basis for Legal Parentage and the Clash Between Custody and Child Child the Clash Between Custody and The Basis for Legal Parentage and Reforming Paternity Law to Eliminate Gender, Status, and Class Inequali- and Class Reforming Paternity Law to Eliminate Gender, Status,  S  . 1295, 1296 (2013) [hereinafter Harris, Harris, [hereinafter (2013) . 1295, 1296 UREAU  B . 611, 632 (2009) [hereinafter Harris, EV HE   EV ȋ I. T .L.R ENSUS T .L.R   C New York,  .S ND 16 ICH  42 I  The first part of this article describes changing social conditions that article describes The first part of this conditions changing social In 2015 in the United States, about fifty-one million children younger million the United States, about fifty-one In 2015 in This article examines how the lawThis article examines 19. U.S. 18. 2014). 908 (Wyo. 908, 338 P.3d v. L.F., L.P. 17. A.C. S.B. v. Elizabeth Brooke 15. 2016). 38 (Md. 31, 141 A.3d Conover, v. Conover 16. Partanen v. Gallagher, 12. Leslie Joan Harris, 14. 2015). (Okla. 217 v. Sutton, 362 P.3d Ramey 13. Leslie Joan Harris,   , 2013 M ,

 ance. It concludes that the decisions are having some impact in the lower in the some impact that the decisions are having ance. It concludes of parental claims bycourts, particularly of the recognition supporting raised they have whom to children related biologically adults who are not partners. However,with their same-sex are limited these decisions and all situa- parents adequately children and their functional in cannot protect solutions are still needed. tions. Therefore, legislative have generated today’s uncertainty about the law of The legal parenthood. second part analyzes recognize function- statutes and case law that directly as de facto parentage, with a al parenthood through such doctrines focus on Oklahoma, results from recent decisions with mixed than eighteen, or 69%, lived with both parents. than eighteen, or 69%, lived with ine more traditional rules of parentage,ine more first when children are born to married women, and then when the mothers are not Each part married. includes a discussion of cases extendingof these principles to children adequacy of questions of the the part returns to same-sex couples. The final the situation. to improve legislation current law and the need for 2015, Social and Ec tbl.C2, (Annual parenthood depends on biological parenthood, proponents of functional of proponents parenthood, on biological depends parenthood of their position. acceptance for the struggle constantly must parenthood and how and marriage, parentage on biology, function, claims to base legal same-sex that bal- decisions are affecting Court’s marriage the Supreme Support,  58 the claims as are treated relationships functional to protect exceptions. ͵ The dominance of biologically based paternity also affects paternity also affects based of biologically children, marital The dominance particularlywhen a husband’s paternity legal on the basis that is challenged biological father. the he is not chusetts, ty 38779-ckt_92-1 Sheet No. 36 Side B 03/01/2017 10:44:39 B 03/01/2017 36 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 37 Side A 03/01/2017 10:44:39 59   TUDY ͹ǣͲ͸ S (2006), (2006), NDREW NDREW  MERICA A and sin- EMOGRAPHY 23 UREAU GENDA FOR THE Coparenting and and Coparenting ELLBEING B A , 45 D , W RRANGEMENTS OF AMILY IN F HILD ENSUS C ARRIAGE M S  ’ ,U.S.C nts of byChildren Under 18 years, , 64 Nat’l Vital Stat., Rep. 12, tbls.1–4, AMILIES AND Id. F ARRIAGETHE AND , 6–8, 31 (Nat’l Marriage Project & for Inst. RESIDENT M P married parents are fragile; a parents are married year after birth, Fragile Families and Children’s Opportunities Fragile Families and Children’s HE RAGILE NIONS ienced one or two of these changes, and 15% had 15% these changes, and one or two of ienced F U ., T TATE OF HE S UR O ., T The incidence of children not living with children not living The incidence of HE :T 21 , Sara S. McLanahan Jeanne Brooks-Gunn, & TATE OF S Births: Final Data for 2014 OUND -R Ȍ ͳȀͳͺȀʹͲͳ͹ HE OBERGEFELL’S LEGAL IMPACT , in the Fragile Families was the norm *2 (Rev. 2003). Re-partnering at ARQUARDT ET AL O T Id. Remarriage in the United States ANAHAN ET AL M L -G in  C  EPORT M 20  R   ARA ERCENT ARRIAGE P ȋ LIZABETH M   ATIONAL HE  IXTY N S ,T 22 : Arrangeme 2015] Living and (Household Relationship Id.  parents to form new romantic relationships during their children’s new parents toromantic relationships during form  , E (2009); Many children not living with both parents currently live or will live or will live currently live both parents with living not Many children On the other hand, almost On the other than nineteen a third of all hand, almost more children,  23.M. Kreider, Rose 24. In the United States, families are non-marital less stable than A much marital families. 21. 2.9 Some children lived with neither parent. million 22.al., et Brady E. Hamilton 20. 24 ASELINE HERLIN   HILDREN

ODAY ORGOTTEN  http://www.census.gov/hhes/families/files/cps2015/tabC2-all.xls [hereinafter A http://www.census.gov/hhes/families/files/cps2015/tabC2-all.xls 48% of the fathers in the study48% of the were at three were their child, 56% years living away from and 63% were at five years. Marcia J. Carlson Nonresident Fathers’ Involvement with After a Nonmarital Birth Young Children million, did not live with both parents because of the because high rates of non- both parents not live with did million, partnerships. domestic of informal breakups divorces, and marital births, of all children Most of them live million 7.1 In 2015, with their mothers. lived while 8.3 million who was divorced or separated, mother lived with a been married. Another who had never with a mother with lived 1.6 million lived with a father divorced or separated, and 842,000 a father who was who had never been married. American Values, 2012). Evidence from the Fragile a and Child Well-Being Study, Families Values, 2012). Evidence from major American of a disproportionate number and their parents that includes longitudinal study of about 5,000 children un children, shows that the relationships of non-marital Hispanic white mothers were non-marital, compared to 52.9% of births to Hispanic mothers, and 70.9% and 70.9% Hispanic to mothers, compared to 52.9% of births were non-marital, Hispanic white mothers mothers. black to non-Hispanic 461, 461 (2008). The study includes children born in seventy-five hospitals in twenty cities in the U.S. cities in in twenty hospitals seventy-five children born in includes study The (2008). 461, 461 baseline 1998 and 2000. Moth- study uses data collected between 200,000. The over with a population were ers and fathers were interviewed at and follow-up interviews were done when the children birth, areas with a population are generalizable to urban one, three, and five yearsof old. Results of the study S than 200,000. more in B J. C T F  C 2017] were children these married, all chil- or 4% of children, million but three were not mar- parents who with both biological eighteen, lived dren under other. ried to each ͵ tbl.4 (Working Paper No. WP12-21-FF, (2012), http://crcw.princeton.edu/workingpapers/WP12-21- both parents is unlikely to decline, mostly because of the high non-marital non-marital of the high because decline, mostly to unlikely both parents is United States were non- in the of all births 40.2% birth rate. In 2014, marital. https://www.census.gov/hhes/socdemo/marriage/data/sipp/us-remarriage-poster.pdf. gle in blended families because of the strong tendencyin blended families of divorced tbl.B (Dec. 23, 2015), http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf. Women of color are Women tbl.B (Dec. 23, 2015), http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf. likelymore than to havewhite women outside children In 2014, 29.2% of births to non- marriage. Age and Sex: 2015). study. By the time a child was five years old, more than half had seen their mother’s romantic partner had seen their than old, mother’s half more study. By the time a child was five years in, out or a new partner 39% had exper move move experienced three or four changes. Sara McLanahan, 38779-ckt_92-1 Sheet No. 37 Side A 03/01/2017 10:44:39 A 03/01/2017 37 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 37 Side B 03/01/2017 10:44:39 , ,   SEX SEX - , 33 , Karen ͹ǣͲ͸ (2013), (2013), UREAU  [Vol 92:1 [Vol AME B S 26 TATES see also S ENSUS ENSUS EX AND And parents of- And parents -S NITED U ,U.S.C 25 Parental Relationships in Parental Relationships PPOSITE O ARENTING IN THE note 19, at tbl.C2. note 19, at tbl.C2. ,LGBTP HARACTERISTICS OF C supra supra Remarriage in the United States United Remarriage in the NSTITUTE I F1 (Winter 2011), http://williamsinstitute.law.ucla.edu/wp- : 2015, : 2015, OUSEHOLD 30 ., Fall 2010 at 22. CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ȍ ͳȀͳͺȀʹͲͳ͹ ILLIAMS ,H HILDREN HILDREN AMILIES Family Formation and Raising Children Among Same-Sex Couples Children Among Same-Sex Raising Family Formation and HILD W C C though they are not the focus of this paper. The next not the focus of this paper. The next are though they . 524 503, (2014). C  HE  32 EV UREAU R ,T  B note 27 at 2. Y  , (Survey 2014), http://www.census.gov/hhes/samesex/files/ssex-tables- tbl.1, ’ UTURE LGBT F Demographic Characteristics of Lesbian Parents in the United States in the United of Lesbian Parents Characteristics Demographic  OL ATES ȋ supra .P ENSUS , , 20 F 20 , J. G   In at least some circumstances, functional adults become these ES Gary J. Gates,  R 31 ATES RRANGEMENTS OF RRANGEMENTS OF OUSEHOLDS In 2013, the Williams Institute reported that nearlyIn 2013, the Williams half of LGBT ARY OCUS ON Of the 783,100 same-sex couples in the United States in 2014, 16% Of the States in 2014, 16% same-sex couples in the United 783,100 See Id.  F H Children of same-sex parents also commonly live in blended fami-  28 27 As who do not live 30% of American children these data show, of the While most children live with two opposite-sex parents, almost live with two opposite-sex children While most 29 28. U.S. C 26. A 25. M. Lewis Jamie & Rose M. Kreider, 31. A 29. G 30. 32. 27. G   OUPLE

AMILY OPULATION  P demographics-studies/family-formation-and-raising-children-among-same-sex-couples/; demographics-studies/family-formation-and-raising-children-among-same-sex-couples/; L. Brewster et al., unmarried opposite-sex partner who was not also the child’s parent. not also the child’s partner who was opposite-sex unmarried 220,000 children lived in a household headed by a same-sex in a household headed by lived couple in children a same-sex 220,000 2013. united-states/ (last Oct. 17, 2016). visited women are raising a child younger than eighteen, and a fifth of LGBT men men younger than are raising a child women of LGBT eighteen, and a fifth are. parents, and legal protection for their rela- and the children they both need tionships. The same is true for some of live children who the 2.9 million with neither parent, C  unmarried higher among partner changes was three times of residential FF.pdf. The average number Sara McLanahan & Audrey N. Beck,mothers. than among mothers married Fragile Families 60 younger children own their with living adults of all 2015, In minorities. 14% had beenthan eighteen, married twice, 2.3% had beenand married times. Onlythree or been 11% had never more married. ͵ 2014.xlsx. F lies, since raised bymost children being lesbians were in prior conceived heterosexual relationships. content/uploads/LGBT-Parenting.pdf.http://williamsinstitute.law.ucla.edu/research/census-lgbt- ten live with other romantic partners to whom they in married; are not whom partners to with other romantic ten live that lived in a household children million 2015, 2.4 a included parent’s http://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/lgbt-parenting-in-the- 7 tbl.2 (2015), https://www.census.gov/content/dam/Census/library/publications/2015/acs/acs-30.pdf. with both biological parents, most at some point live in a household that in a household at point live some parents, most biological with both become many caretakers of whom includes a parent’s new partner, for the children. section of this paper discusses statutesthis pro- and case law that provide were living with at least onewere living with at child who was the legal one of child of at least them. 38779-ckt_92-1 Sheet No. 37 Side B 03/01/2017 10:44:39 B 03/01/2017 37 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 38 Side A 03/01/2017 10:44:39 . 61 is   ND Troxel ͹ǣͲ͸  . § 40-4- NN Troxel A (Draft, June 3, June (Draft, 33 . N ’ ODE E.2d 965, 967 (Ind. (Ind. 967 E.2d 965, ECOGNIZE . tit. 13, § 8-201(c) .C 2011); V.C. v. M.J.B., 2011); R Psychological Parent- OMM NN C ONT A AW . § I (2006); 571-46(a)(2) v. Jones, 378 S.W.3d 731, 738 738 731, 378 S.W.3d v. Jones, ODE Eight states have stat- . 2016). (West § 102.003(a)(9) Leaving No (Nonmarital) Child Child No (Nonmarital) Leaving .L  .C TAT NN 35 NIF & L. 615 (2012). The Uniform Law Aftermath: A Proposed Solution for for Solution Aftermath: A Proposed . A EL .S ,U HEORIES TO HEORIES EV CT ODE 34 T A ENDER .R Troxel Troxel v. Granville .C Troxel AW AM The .J.G 802 N.W.2d 66, 66 (Neb. 66 (Neb. 66, 802 N.W.2d 1999); King v. S.B., 837 N. King 1999); THER .F EO In some of these states, the de facto In some of these states, the de facto ELATIONSHIPS O EX . § M 2016); 403.270 (West R ISITATION 37 V NN .” ,13G . 927 (2009); Rebecca L. Scharf, . 195, 208 (2014); Joslin, Joslin, (2014); 208 195, . .A EV and another eighteen have cases that recog- and another TAT ROBS USTODY 36 Sonya C. Garza, .L.R .S C .P A 2d 850, 855 (Alaska 1982); Bethany Bethany (Alaska 1982); 855 2d 850, . § D (2016); 14-10-123(1)(c) EV ARENTHOOD Ȍ ͳȀͳͺȀʹͲͳ͹ UNCTIONAL . how about discussions for 1087 (2001) 1075, 1081–1083, OBERGEFELL’S LEGAL IMPACT NN .R HILD What Constitutional Law Can Learn from the ALI Principles of Family from the Learn Law Can Constitutional What P F Y EV C , 69 L , ONTEMP .A  . § T (2015); 109.119(1)  TAT &C  in loco parentis TAT  , see generally .S  extensively and proposes legislation that is clearly within set by the extensively and proposes legislation that is the boundaries AW AW .S ARENTAL ȋ E FACTO EV Nancy D. Polikoff, From Third Parties to Parents: The Case of Lesbian Couples and Lesbian Couples and Third Parties to Parents: The Case of Nancy D. Polikoff, From EV -P D .R   .R ON note 7, at 498–05. note  Troxel Troxel R 2001 BYU2001 L. R II. OLO is that it a parent’smeans to avoid det- decision can be overridden See also   The major legal barrier to permitting an adult who is not a child’s bio- a child’s adult who is not an barrier to permitting legal The major At least thirty-two states have statutes sometimesor case law that al- § K (2016); 31-17-2-8.5  37. Carter v. Brodrick, P. 644 36. C 35. 33. 65 (2000). 57, 530 U.S. 34. See David D. Meyer,   ODE

 riment to the child, some states require proof that the parent’s decision will decision will parent’s require states proof that the to the child, some riment parent is unfit. the child or even that the harm constitution. N Commission has published a draft Uniform Non-Parental Rights to Child Custody and Visitation Act Non-Parental Rights to Child Custody and Visitation has published a draft Uniform Commission that discusses logical or adoptive parent to have access to the child over the parent’s ob- parent’s over the parent to have access to the child logical or adoptive Court’s decision in jection is the Supreme (Ark. 2011); Riepe v. Riepe, 91 P.3d 312, 315 (Ariz. Ct. App. 2004); Laspina-Williams v. Laspina- App. 2004); Laspina-Williams 315 (Ariz. Ct. (Ark. 2011); Riepe v. Riepe, 91 P.3d 312, Ct. Super. (Conn. 843–844 742 A.2d 840, Williams, 2005); Conover v. Conover, 141 A.3d 31, 35 (Md. 2016); E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. Conover, 141 A.3d 31, 35 (Md. 2016); v. 2005); Conover 1999); C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 151, 2004); LaChapelle v. Mitten, 607 N.W.2d v. Schwerdtfeger, Ct. App. Latham 159 (Minn. 2000); Behind, supra nize a relationship called “de facto parent,”nize a relationship called “de facto “psychological parent,” or “ person standing 2016), http://www.uniformlaws.org/shared/docs/Non- 2016), Parental%20Rights%20to%20Child%20Custody%20and%20Visitation/2016AM_Non- ParentalRights_Draft.pdf. Their Children, 77 L legal parent’s objection, notwithstanding legal parent’s objection, notwithstanding Dissolution,  Legislatures State Courts and age, Troxel,the Child and the Best Interests of 2017] parent- to functional recognition legal of giving basis express on the tection child relationships. ͵ an ambiguous decision without a plurality opinion, but at its core it pro- but at its opinion, a plurality decision without an ambiguous protection for the childrearingvides due process decisions of “fit” parents, other with time spend children will about whether the particularly decisions of interpretation legal parents. While the dominant adults who are not Troxel utes that create these rights, 228 (2015); O 228 (2015); (2016); D.C. Code §§ Code D.C. (2016); H (2016); 16-831.01–16.831.13 C protects parental rights lows a functional non-biological parent to seek custody or visitation over a lows a functional non-biological 38779-ckt_92-1 Sheet No. 38 Side A 03/01/2017 10:44:39 A 03/01/2017 38 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 38 Side B 03/01/2017 10:44:39 . at   see In re ͹ǣͲ͸ infra  Thomp- [Vol 92:1 [Vol , 122 P.3d 122 P.3d , In re Brooke S.B Cal. 2004); Elisa B. v. 533 N.W.2d 419, 435– 419, 533 N.W.2d .C. 2010); Ramey v. Sutton, Ramey .C. 2010); 501 (N.H. 2014); Chatterjee v.501 2005); Rubano v. DiCenzo, 759 v. DiCenzo, 759 2005); Rubano In re Parentage of L.B. of Parentage re In 61 (Wash. 2005) (en banc); 61 (Wash. Scarlet Z.-D., 11 N.E.3d 360, 360, 435 (Mo. Ct. App. 2015); (Mo. 435 refused to recognize a broad In re at text accompanying notes 42–44. Jesusa V., 85 P.3d 2 ( V., 85 P.3d 2 Jesusa Custody of H.S.H.-K., Custody infra Hayden C.G-J., No. M2012-02701-COA-R3CV, No. M2012-02701-COA-R3CV, C.G-J., Hayden In re 2013); Jones v. Barlow, 154 P.3d 808, 808 (Utah 808 (Utah 154 P.3d 808, Jones v. Barlow, 2013); In re Parental Responsibilities of A.R.L., 318 Parental Responsibilities P.3d 581 , 748 A.2d at 549; Instead, it adopted what amounts to a what Instead, it adopted amounts In re ell, 704 S.E.2d 494, 504 (N ell, 704 S.E.2d 494, 504 V.C. 915, 917 (Pa. Super. Ct. 917 915, 41 In re discussion See presumption that the legal parent’s decisions parent’s decisions that the legal presumption Finally, New York doctrine has adopted a unique CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW v. 435, McGaw, 468 S.W.3d Parentage of L.B., 122 P.3d 161, 1 Ȍ ͳȀͳͺȀʹͲͳ͹ 40 In another five states, courts have held that a statu- have held that five states, courts In another In others, the de factoIn others, parent is nota legal and parent 39 Troxel  to a parentage a gay couple and a surrogate dispute among mother, In re  Guardianship of Madelyn B., 98 A.3d 494, Madelyn Guardianship of 38 , 1151; 845 A.2d at 43  3d 660 (Cal. 2005); 3d 660   , 61 N.E.3d at 500. In re Smith v. v. Smith Guest, (citing cases). n.61 (Del. 2011) 16 A.3d 920, 931 C.E.W ȋ R.D. v. A.H., 912 N.E.2d 958 (Mass. 2009). 958 (Mass. 912 N.E.2d v. A.H., R.D. , Brooke S.B. v. Elizabeth A.C.C. Brooke S.B. v. Elizabeth   Nicholas H., 46 P.3d 932 (Cal. 2002); Brooke S.B.  On the other hand, courts in at least seven states have recently re- courts in at least seven states On the other hand, See also Brooke S.B. v. Elizabeth A.C.C., 61 488 (N.Y. N.E.3d 2016). (N.Y. Aug. 30, 2016). For an Brooke S.B. In re See e.g., See, e.g.   42 . Many, of the cases about but not all, whether to recognize de facto 41 42. 43. 2013); (Fla. 347 320, 129 So.3d v. T.M.H., D.M.T. 40. 39. 38.  

 362 (Ill. App. Ct. McGaw 2014); 362 (Ill. 2013 WL 6040348, at *4 (Tenn. Ct. App. Oct. 18, Ct. App. Oct. 18, at *4 (Tenn. 6040348, 2013 WL 2014). 338 (Wyo. 908, 908 P.3d v. L.F., L.P. 2014); 423 (Vt. 416, 95 A.3d v. Sylvester, Moreau 2007); son, 11 S.W.3d 913, 923 (Tenn. Ct. Ct. App. 1999); (Tenn. 923 913, 11 S.W.3d son, text accompanying notes 113-135. application of Matter of Frank G. v. Renee P.-F., 37 N.Y.S.3d 155 (App. Div. 2016) (gay partner of biological father Matter of Frank G. v. Renee P.-F., 37 father (App. Div. 2016) (gay partner of biological N.Y.S.3d 155 of children has standing to seek although surrogacy custody agreement not enforceable against mother). (Colo. App. 2013); Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013); Partanen v. Gallagher, 59 N.E.2d (Colo. App. 2013); Frazier v. Goudschaal, 295 P.3d 1133 (Mass. 2016); King, are discussed interpret (N.M. 2012). These cases and the statutes they 283, 288 280 P.3d Superior Court, 117 P. ment. 36 (Wis. 1995). New York has a different rationale for granting parental status to some functional functional parental status to some granting for different rationale New York has a 36 (Wis. 1995). parents and is not included in this count. that protects functional parents sometimes.that protects functional New York In 2016, the Court of Appeals in at 180–81. parenthood or a similar theory were based on disputes between lesbian their relationships These include broke up. couples at the time fused to recognize anyfused to recognize these doctrines or to provide any of remedy to functional parents. must overcome the about access about access control. waiver theory: If the biological parent and the functional parent agreed to the functional parent parent and waiver theory: If the biological a child as co-parents,conceive and raise parent has the legal the functional because of seek custody to has standing and status of a parent, agree- the  v. Jarr Boseman 2000); (N.J. 551 539, 748 A.2d 62 with footing on equal and stands legal parenthood status of has the parent parents. other legal A.2d 884 v. Jones, Jones 219; 217, 362 P.3d ͵ 2000); (R.I. 968 959, A.2d Clifford K., 619 S.E.2d 138, 155–56 (W. Va. 2005); Va. 2005); (W. 155–56 S.E.2d 138, K., 619 Clifford doctrine of de facto parenthood.doctrine of de facto and three other very Two of these cases recent cases. deci- overruled earlier tory presumption that a person taking a child into his or her home and hold- his or her home a child into a person taking that presumption tory that alwaysher cannot evidence be rebutted by our as his or child ing the adult is parent; the effect is that the biological not the child’s the adult is the child’s legal parent. 38779-ckt_92-1 Sheet No. 38 Side B 03/01/2017 10:44:39 B 03/01/2017 38 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 39 Side A 03/01/2017 10:44:39 63   ͹ǣͲ͸  47 Conover Ramey v. , the courts that , the courts 948 A.2d 73 (Md. 2008) 948 A.2d 73 (Md. 2008) case]. Our state’s case]. Troxel and ruled that the third Both courts placed de de Both courts placed ve a family and raise and raise family a ve benefits a child gains gains a child benefits  44 46 every state in this nation and every state in this , we now make explicit that de explicit that de , we now make Maryland and is deemed to be of of to be deemed and is Maryland lding we fortify the best interests interests we fortify the best lding y or visitation and need not show need visitation and y or of [the overruled of [the overruled evolving events have rendered [the [the rendered have events evolving nd’s recognition of same-sex mar- of same-sex nd’s recognition ection Act, Ch. 2, 2012 Md. Laws Laws 2012 Md. 2, Act, Ch. ection Janice M. v. Margaret K., ild’s close, nurturing relationships. nurturing close, ild’s at 46–47. her third parties. We hold that de facto n . . . parties” between “pure third and Id. the Supreme Court of the United States of the Court the Supreme , constitutional right to ha constitutional ptional circumstances before a trial court can trial court can a before ptional circumstances cial consideration of the of the cial consideration as part of the reason to overrule the earlier case Ȍ ͳȀͳͺȀʹͲͳ͹ 59 N.E.2d 1133 (Mass. 2016). OBERGEFELL’S LEGAL IMPACT     , 141 A.3d at 35 (overruling , 141  Obergefell ȋ   , the Marylandhigh court wrote:  at (internal citations omitted). 46, 50 See Conover  , citing  .Id. .Id. The Oklahoma Supreme views in Court expressed similar The Oklahoma Supreme those persons who are in a parental role persons those ot from distinct are parents facto custod contest to standing have parents or exce unfitness parental child of the best interests The analysis. child of the best interests apply a in entrenched been “firmly has standard ch in the is consistency there when transcendent importance.” transcendent With this ho judi allowing by standard . . .differentiatio our In light of .... riage in 2012—Civil Marriage Prot Marriage 2012—Civil riage in 9—undermines the precedential value the precedential 9—undermines recognition of same-sex marriage illustrates the greater acceptance of acceptance greater the illustrates marriage of same-sex recognition (“SCOTUS”) has ruled that marriage is a constitutionally guaranteed is a marriage has ruled that (“SCOTUS”) overruled case] obsolete case] overruled . . . . Maryla decision] Since [the earlier Additionally, the passage of time and of time Additionally, the passage gays and lesbians in the family unit in society unit in family the in lesbians gays and . . . . fundamental right for same sex couples in sex right for same fundamental affirming the longstanding longstanding the affirming –– U.S. 576 Hodges, v. Obergefell children, we Today (2015). Acknowledging the constitutional protection for parental decisions parental decisions protection for constitutional the Acknowledging  46. parents to marriage, functional However, the Maryland court did not tie legal recognition of 47 45. Partanen v. Gallagher, 44. 45  

 citing the work of Professor Nancy Polikoff. and Ramey v. Sutton, 362 P.3d 217). 362 P.3d Sutton, v. and Ramey a presumption that a person holding out a child as out cannot neces- her own holding that a person a presumption moth- genetic sarily child’s is not the proof that the adult be rebutted by er. rejecting de facto parenthood: about who will have access to their children under to their children will have access about who adopted the de facto parent doctrine concluded that acceptance of same-sex that acceptance concluded de facto parent doctrine adopted the though they of the older cases, were the premises marriage undermined de facto careful to distinguish seek adults who might other parents from objection. a parent’s custody or visitation over  2017] doctrine, parent facto de the and recognized sions ͵ facto parents on a legal par with biological or adoptive parents. In or adoptive facto parents a legal par with biological on v. Conover Sutton 38779-ckt_92-1 Sheet No. 39 Side A 03/01/2017 10:44:39 A 03/01/2017 39 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 39 Side B 03/01/2017 10:44:39   ͹ǣͲ͸  [Vol 92:1 [Vol 49 ticularly in . However, like the (2) engaged in inten- in (2) engaged Troxel 48 the status and obligations of a of a obligations the status and is unsustainable, par is unsustainable, ng consideration to the best in- ng consideration to tters. jurispru- standing Our long ntis to prior the couple, where . . . ild custody action where the bio- the where action ild custody and to co-parent; and (3) the bio- the (3) and co-parent; and to ght to erase a relationship that she that she ght to erase a relationship ological parent in a same sex (sic) sex (sic) same in a parent ological ological mother enjoys many rights many enjoys mother ological y even against the biological parent. parent. biological the against y even is doctrine in finding a former same same a former in finding doctrine is aged her partner to assume the status assume to partner her aged on they stand in loco parentis to the child to the child parentis on they stand in loco unable to marry legally; marry unable to e Oklahoma Constitution. Oklahoma e stered with their child. with their stered CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW . the court wrote: Ȍ ͳȀͳͺȀʹͲͳ͹      ȋ Brooke S.B      In contrast, the New YorkCourt of Appeals refused to recognize a Like the two de facto parent decisions, the Massachusetts Supreme Like the two de facto parent decisions, We have held that when persons assume assume held that persons when We have dence recognizes the fundamental right of a parent to the companionship, to the companionship, right of a parent the fundamental dence recognizes United by the guaranteed as child of the management and care, custody th and States Constitution adopti formal without parent terests of the minor child in custody ma in child minor terests of the such,and, as custod be awarded may relied on th have jurisdictions Other sex partner had standing to bring a ch bring standing to had partner sex encour and consented logical parent duties. parental of performance partner’s to the and acquiesced parent of bi that although the noted One court not include the ri as a parent, it does fo and created voluntarily . . . given compelli We consistently have .... Obergefell, supra, (1) were were supra, (1) Obergefell, have a child planning to tional family parental sex partner’s the same encouraged and acquiesced logical parent of childthe the role following birth . . . . [The overruled case’s] foundational premise of heterosexual parenting couples of same-sex nonrecognition and [acknowledge] the rights of a non-bi of the rights [acknowledge] loco pare acted in has who relationship light of the enactment of same-sex marriage in New York State, and the the and State, York New in marriage same-sex of enactment the of light United States Supreme Court’s holding in Obergefell v. Hodges (576 v. Hodges Obergefell in Court’s holding Supreme United States U.S. ––––, 135 S. Ct. 2584 [2015]), which noted that the right to marry 49. at 1141. 59 N.E.3d Partanen, 48. omitted). 362 P.3d at 218, 221 (footnotes  

 Maryland and Oklahoma courts, it saidchanging legal position of that the same-sex couples required rejection of a twenty-five-year-old precedent that denied all rights to the nonbiological parent when a couple same-sex breaks up. In broad, de facto doctrine parentage because of Judicial Court case that relied on the holding out presumption to establish to presumption Judicial Court case that reliedout on the holding the legal parentage of the second couple raising chil- of a lesbian member rights of the biological dren together also recognized the parental mother. the children’sHowever, the court said, protecting in preserving the interest took precedence. mother with the other relationship actual family  64 ͵ 38779-ckt_92-1 Sheet No. 39 Side B 03/01/2017 10:44:39 B 03/01/2017 39 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 40 Side A 03/01/2017 10:44:39 65   L.P. ͹ǣͲ͸   fundamental liberty inter- liberty fundamental The mother and the man were were and the man The mother at 2600–2608). By “fixing bi- By “fixing 2600–2608). at of consent of the biological or biological of the of consent caution in expanding the defi- the expanding caution in antial and fundamental right of right of and fundamental antial 51 n establish standing to seek vis- standing to seek n establish r situations in which a couple did which a couple in r situations we do not consider whether to al- whether consider not we do rol the upbringing of their children. of upbringing the rol that the proffered tests are the only the proffered tests are the that s in the care, custody and custody care, the s in of control 3d 488 (N.Y. 2016). , the [overruled case] inflicted dispro- inflicted case] , the [overruled coequal rights. Nevertheless, the fun- Nevertheless, coequal rights. reement. Accordingly, we do not now not we do Accordingly, reement. ng number of of nontraditional number ng families relationship between his or her partner his or her partner between relationship aps the oldest of the aps Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT 50  sufficient to establish standing. Because we necessarily necessarily we standing. Because sufficient to establish izabeth A.C.C., 61 N.E.     ȋ    involved an opposite-sex couple. an opposite-sex involved   In sharp contrast to the cases from Maryland, Massachusetts, Oklaho- tered into a pre-conception agreement to conceive and raise a child as co- to conceive and raise agreement a pre-conception tered into and convinc- by clear proven if allegations, these hold that We parents. ing evidence, are ag a pre-conception into not enter decide these cases based on the facts presented to us, it would be prema- be would us, it to facts presented on the based cases decide these a test fo adopting us to consider for ture . . . en- alleged that the parties before us have in the two cases Petitioners ca partner the conception, after and child itation and custody. decide whether, in a case where a biological or adoptive parent consent- a biological or adoptive parent in a case where decide whether, parent-like of a ed to the creation .... options that should be considered that should options . . . . For certainly, “the interest of parent “the interest For certainly, or be appropriate for all situations, biological or adoptive parents to cont parents biological or adoptive ests,”obvious cost” with an “comes on that right infringement and any their children [ ] is perh their children . . . would one test that now declare that we must premise the reject We . . . the subst protect however, We must, (Troxel, 530 U.S. at 64–65). But here 64–65). 530 U.S. at (Troxel, issue is rather, the rights; on those infringe or to contest party low a third as a “parent”who qualifies with nition of that term and makes the element the and makes term of that nition damental nature of those rights of those nature mandates damental criticaladoptive parent ...... provides benefits not only for same-sex couples, but also the children be- the children but also couples, same-sex for only not benefits provides couples. those raised by ing the “hun- by suffered stigma the emphasized Court has Supreme The dredsof thousands of children[who] presently are being by raised couples”[same-sex] S Ct 135 (Obergefell, ology as the key to visitation rights to visitation key ology as the portionate hardship on the growi on the hardship portionate across our State . . . .  50. Brooke S.B. v. El 51. 2014). (Wyo. 908 908, 338 P.3d  

 ma and New York, the Wyoming Supreme Court in 2014 refused to pro- Court in 2014 refused to Supreme ma and New York, the Wyoming when the biological parent sought to vide any to a functional parent relief case, cases, the Wyoming visitation. Unlike the other three deny him v. L.F., living together when the child was born, and he was listed as the father on father. They lived the biological the birth certificate, though he was not  2017] ͵ 38779-ckt_92-1 Sheet No. 40 Side A 03/01/2017 10:44:39 A 03/01/2017 40 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 40 Side B 03/01/2017 10:44:39   ͹ǣͲ͸  [Vol 92:1 [Vol Oberge- ARRIAGE M 53 at 914-15. For a discus- Id. ASED ON note 48. B IRTH B supra The man argued that even if he if he argued that even The man ARENTAGE 52 ARENT AT P –P EGAL The next two sections examine traditional traditional two sections examine The next L 54 S ’ raises the question of whether the marital pre- the marital raises the question of whether CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW RESUMPTION HILD Ȍ ͳȀͳͺȀʹͲͳ͹ P C at 911. The court rejected the man’s argument that he had substantially substantially that he had argument rejected the man’s 911. The court at  Id.   TO A   ARITAL , 362 P.3d at 221, quoted at text accompanying , 362 P.3d at 221, quoted at Obergefell ȋ M   text accompanying notes 113–35.  HE See Ramey   III. T As discussed article, all states in the introduction to this presume the In sum, while the de facto parent doctrine and related theories protect de facto parent doctrine and related while the In sum, see infra 52. had lived with the child for the first If the two years of his life, man he would have been 53. 2014). 919 (Wyo. 908, 338 P.3d v. L.F., L.P. 54.  

 sumption would have run. have would sumption complied with the statute creating the presumption and said that even if the presumption applied, it was applied, presumption that even if the and said with the statute creating the presumption complied rebutted by genetic evidence showing that he was not the biological father. husband of a married womanhusband to be of her children born during the father the marriage. same-sex. A related question is sumption is applies if the married couple child born to a whether state laws providing that a married woman via arti- ficial insemination with her husband’s consent is the legal child of the hus- same-sex couples. While this rule is not on its face band apply to married the same as the presumption, it is rooted in the same principles,marital and marital policies as the This section first presumption. advances the same whether these rulesexamines apply lesbian to married couples, including required after rules is constitutionally whether application of the principles of the law of paternity places and tofill this gap in some that extent. some presumed to be the child’s father, and the statute of limitations onto challenge that pre- legal actions to be the child’s father,presumed and the statute of limitations  66 sepa- life, child’s of the twenty-one to first eighteen for the together months ͵ sion of the presumption of legal paternity based on living with a child and holding out the child as one’s of legal paternitysion of the presumption based on living with a child and holding out the child own, was not the child’s biological father, the court should adopt the de facto should adopt the father, the court was not the biological child’s The court refused, finding parental rights. grant him parent doctrine and intended the statethat the legislature statutes—which parentage are based which a Parentage (UPA)—to cover all theories upon Act on the Uniform functional parent-child relationships where they are recognized, they have they have recognized, they relationships where are functional parent-child the states. half In somein almost not been adopted such as Oklaho- states, ma, there is a question about the applicability where parents of the doctrine not to. but choose could marry rated, and then lived together again briefly. After a separation, they After a separation, briefly. again lived then lived together rated, and The other for five near each not live together. years,more did though they regarded and saw him the child regularly, the child and support man helped reasons, filed a petition then father. For undisclosed him as his the mother relationship. father-child the to disprove nonparent might claim a right to a relationship with a child. with a a right to a relationship claim nonparent might 38779-ckt_92-1 Sheet No. 40 Side B 03/01/2017 10:44:39 B 03/01/2017 40 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 41 Side A 03/01/2017 10:44:39 67   But 55 ͹ǣͲ͸ . 1295,  URRENT EV Marriage, Low histor- . 248–55 246, .L.R , 47 C EV . 227 (2006). A EV Presuming Women: note 58, at 5 (30% of at 5 (30% of note 58, .L.R , 65 L , . 289, 290 (2012). . 289, D , 2016, at *A1. 9, Apr. EV ]; Jana Singer, How Well DoesPaternityHow Well supra IMES . 547 (2000); June Carbone, Carbone, June 547 (2000); . .R While some scholars scholars While some , 65 M , T . (2003). 1021–22 1011, J. Somebody’s Child: Evaluating Child: Evaluating Somebody’s EV .C 56 , 86 B.U. L. R TS  R AM ,N.Y.T .L.R ILL Anderson, Anderson, A Susan F. Appleton, B 50 F ARY note 56, at 1305. note 56, at 1305. See also Theresa Glennon, Which Ties Bind?: Redefining the Parent-Child Which , 102 W., V .&M less M.H.D. Larmuseau than 1%. et al., M supra supra see generally see , the rule does more than this.the rule does more In the great ,11W 58 The Legal Definition of Parenthood since. husbands most are in fact the biological 57 . B http://dx.doi.org/10/1098/rspb.2013.2400. (2013), 280:20132400 Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT OC 849, 852–53 (May 2006). 2006). (May 852–53 849,   A National Sample of US Paternity Tests: Do Demographics Predict Testof USPaternity Tests: Do Demographics A National Sample  Overcoming the Marital Presumption, .R.S   ROC ȋ , June Carbone & Naomi , June Carbone & Naomi Cahn, 511, 516 (2006), 511, 516 (2006), RANSFUSION    The Parenthood Legal Definition of , 280 P , 280 46 T A. Applicability of the Marital Presumption to Lesbian Couples Presumption of the Marital A. Applicability See, e.g.  FatheredIt’s Mostly an Urban Legend the Mailman? by  Whether the marital presumption applies to lesbian couples depends in Whether the marital presumption The marital presumption,The has very which old, common-law roots, ap- marital  . It then considers the applicability the considers . It then partners when the principles of these 56. generally, On the presumption marital 55. For an early discussion of these issues, 58.of fathers to be the always believe themselves who that almost studies show men Empirical 57. Carbone,   NTHROPOLOGY

 study conducted in the mid-2000s found that, for any man who was tested for paternity in a child sup- a child in who was tested for paternity man for any that, found the in mid-2000s conducted study port office, there was a 72% probability that the test Thewould show that he is the father. rate varied werelittle across racial groups or ethnic lines. The differences among racial and ethnic statistically not significant. David Bishai, Outcomes? Biology and Paternity, The Case for Revitalizing the Marital Presumption Biology and Paternity, Actual_Paternity_Evidence_from_Worldwide_Nonpaternity_Rates. Actual_Paternity_Evidence_from_Worldwide_Nonpaternity_Rates. their paternity. who seek genetic tests to determine is A higher for The rate of non-paternity men much the Erosion of the Marital Presumption of Paternity Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era the first instance on whether the court treats the presumption as pertaining as treats the presumption the first instance on whether the court (2006); Melanie Jacobs, plies to married opposite-sex couples in all states. opposite-sex couples plies to married see have argued that the primary purpose and effect of the presumption is to is and effect of the presumption purpose the primary that have argued allow couples an easymarried way to establish the legal parent-child rela- biology,tionship based on Relationship in an Age of Genetic Certainty https://www.researchgate.net/publication/237633127_How_Well_Does_Paternity_Confidence_Match_ Confidence Match Actual Paternity? Results from Worldwide Nonpaternity Rates Worldwide Results from Actual Paternity? Confidence Match The most comprehensiveThe most analysis of U.S. data concluded raising children that 98% of the they men believe to be their biological children are correct. G. Anderson, Kermyt 1304–08 (2005) [hereinafter Carbone, (2005) 1304–08 A  2017] fell discussionconcludes with a It the marital when are men. of what happens spouse is not the basis that the mother’s challenged on the is presumption child’s biological parent. ͵ children are in fact the fathers. A study published in 2013 reconstructing large family genealogies family back children are in fact the fathers. A study published in 2013 reconstructing large found a cuckoldry rate of four centuries in Belgium genea- and by Y-chromosome traced population human European a Western in of cuckoldry ical rates logical data The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity The Legal Definition of Parenthood: the men who seek blood tests to confirm paternity who seek arethe blood tests to confirm not the biological father). men majority of cases, the presumption also protects the functional parent-child parent-child functional also protects the the presumption majorityof cases, since of the marriage, effort is made tono integrityrelationship and the rebut the presumption. Similar studies have found similar rates in Spain, Italy, Mali. Carl Germany and agricultural villages in found similar Similar studies have Zimmer, fathers of their wives’ children, 38779-ckt_92-1 Sheet No. 41 Side A 03/01/2017 10:44:39 A 03/01/2017 41 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 41 Side B 03/01/2017 10:44:39 66   in- 9 J. ͹ǣͲ͸  [Vol 92:1 [Vol Within Within 60 Shineovich Obergefell, Leslie J. Harris, J.C., 857 N.W.2d and see In re 64 Madrone the Massachusetts Su- the Massachusetts that marriage same-sex 59 reached the same conclu- reached the same 62 Ct. App. 2009) (“By the very terms of the of the terms very the (“By Ct. App. 2009) was decided; of those was decided; did, that and Iowa a position that it reaffirmed in 2015. 61 65 Obergefell , the presumption a marital applies to mar- CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ȍ ͳȀͳͺȀʹͲͳ͹ , No. HHBFA124030541S, 2015 WL 600973 (Conn. Sup. Ct. 2015) 2015) Ct. Sup. (Conn. 600973 WL 2015 HHBFA124030541S, No. , and in dicta, an intermediate and in dicta, an Appellate Missouri intermediate Obergefell  63 Both of these cases were decided before   67   ȋ . 281, 282 (2007). 281, 282 (2007). . Madrone, 350 P.3d 495, 501 (Or. Ct. App. 2015). Both 2015). App. Ct. (Or. 501 495, 350 P.3d Madrone,    TUD See Barse v. Pasternak In re  .S Goodridge v. DepartmentGoodridge Public of Health  However, strong dicta in a 2009 Oregon Court of Appeals decision Appeals decision of a 2009 Oregon Court dicta in However, strong AM 62. In contrast, in 2015 351 (Iowa 2013). Gartner v. 335, Iowa Dept. Pub. Health, 830 N.W.2d 61. 67. Russell v. Pasik, (Fl. Dist. Ct. App. 2015) (discussing O’Dell178 So. 3d 55, 59 v. O’Dell, 66. 65. (Or. 29, 36 P.3d 214 Shineovich v. Shineovich, 60. 2012). (Mass. 857, 857 Rose, 975 N.E.2d v. Hunter 63. 2016). App. 5929205 (Az. Jones, 2016 WL v. McLaughlin 64. Ct. App. 2015). 447 (Mo. 435, 468 S.W.3d v. McGaw, McGaw 59. 798 N.E.2d 941, 968–70 (Mass. 2003).  

 the Iowa Supreme Court held that a husband who was married to the at themother child’s birth and who court in a juvenile had no rights not a child’s biological father, was clearly who but had raised the child, parents. and adoptive dependency case because the statute speaks of biological 629 So. 2d 891, 891 (Fla. Dist. Ct. App. 1993)). 1993)). App. Ct. Dist. (Fla. 891 2d 891, 629 So. 495, 508 (Iowa 2014). Whether the legislature intended to use the statute to exclude the husband is far certain, though. On the treatmentfrom fathers in dependency cases generally, of Fathers in Dependency Cases: New Efforts, New Problems, New Solutions, Involving Nonresident (civil union). born because the laws at the time did not allow them to be. The women the time at who were not the biological did not allow them born because the laws artificial successfully argued that a statutemothers concerning a husband who consents to his wife’s so applied to them as toinsemination them legal parents of their make mates’ children. statute, for the presumption of parentage to apply, it must be at least possible that the person is the person be at least possible that the to apply, it must of parentage statute, for the presumption biological parent of the child.”). must be recognized under the state constitution, be recognized under the must most held that lesbian couples are entitled to the benefit of the presumption of the presumption entitled to the benefit lesbian couples are held that most the as one of benefits of marriage. In an early decision, following the hold- ing in volved lesbian couples who were not married or in a domestic partnership children were when their couples who or in a domestic were not volved lesbian married said that the marital presumption could not apply to a same-sex couple couple to a same-sex not apply could presumption said that the marital because it is based on biology,  68 only Relatively parenthood. biological to laws with few states addressing same-sex marriages partnerships, or comprehensive domestic civil unions, this question before addressed ͵ a few years, courts in Connecticut sion under their own statutes and case law.sion under their own The Arizona Court of Appeals of held that, in light ried lesbian couple, Similarly, dicta in a 2015 Florida case suggested strongly in a 2015 Similarly, that the dicta marital not applywould presumption to a same-sex couple, relying1993 case on a child was with her when holding that a husband who was living the mother visitation when the have standing to seek born and raised the child did not parties divorced. preme Judicial domestic Court recognized a California preme as partnership marriage, presumption. the marital and then applied equivalent to Court indicated that it would reach the same conclusion. that it would reach the same Court indicated L. & F 38779-ckt_92-1 Sheet No. 41 Side B 03/01/2017 10:44:39 B 03/01/2017 41 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 42 Side A 03/01/2017 10:44:39 69   NY To , 985 , 985 ͹ǣͲ͸ 71 72  . Kelly S. Brooke Ramey v. Sutton, v. Sutton, Ramey Wendy G-M. Wendy see also In re 732, 734 (Va. Ct. App. Brooke S.B superseded bysuperseded statute overruled by Shineovich v. Shineovich, 214 v. Shineovich, Shineovich  The lower courts inThe lower New App. Ct. 2012); 68 Ct. App. 2015); and in 2016 the Indiana Court Indiana Court and in 2016 the 76 invalidated by In 2015, a Michigan appellate court 2015, a Michigan appellate court In 75 3d 488 (N.Y. 2016). Wellborn v. Doe, 394 S.E.2d Doe, 394 Wellborn v. 601, 603 (Mass. 601, Part III.C. Part courts in some states applied these stat- courts in some Paczkowski v. Paczkowski, 10 N.Y.S.3d 270, 271 (N.Y. 10 N.Y.S.3d 270, v. Paczkowski, Paczkowski 194, 195 (Mich. 194, 195 (Mich. . § 109.243, . 46 § ch. ch. (West, 4B Westlaw through ch. 260 (excluding with see also NN TAT see infra S.2d 406, 411 (N.Y. Sup. Ct. 1973), Sup. Ct. 1973), S.2d 406, 411 (N.Y. A .S better comports with the decisions applying the better the decisions applying with the comports EV 70 AWS AWS Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT .R .L Obergefell, R  EN izabeth A.C.C., 61 N.E.  to reach the same result, Q.M. v. B.C., 995 N.Y.S.2d Ct. 2014) (holding 470, 473–74 (N.Y. Fam. .G    ASS and Before although the New York Court of Appeals decision in of Appeals decision New York Court the although Wendy G-M. v. Erin G-M, 985 N.Y.S.2d 845, 850 (N.Y. Sup. Ct. 2014) (extending (extending 2014) Sup. Ct. 850 (N.Y. 845, 985 N.Y.S.2d G-M, Erin v. G-M. Wendy ȋ ,M § 24 (McKinney 2008); § (McKinney 24 69 73    AW although other courts did not. did courts although other Obergefell .L See id. Compare See, e.g.   74 EL B. Applicability of ArtificialB. Applicability Lesbian to Statutes Insemination Couples If a married by insemination conceives bywoman donor, artificial and  .R 72. v. Gursky, N.Y. 242 Gursky 76. Stankevich v. Milliron, 882 N.W.2d 75. Civ. App. (Okla. 2014), 312 Dubose v. North, P.3d 311, 332 71. 74. 961 N.E.2d Della Corte v. Ramirez, 68. For a discussion of this issue, 69. 70. S.B. v. El Brooke 73.   OM

 362 P.3d 217, 221 (Okla. 2015). (Okla. 221 217, 362 P.3d N.Y.S.2d at 845. York are divided about whether the marital presumption the marital divided about whether York are applies to same- sex couples, of Appeals applied to a lesbian couple its case law ruleof Appeals applied to a lesbian couple that a child con- utes to lesbians who were married, in civil unions, or in domestic partner- in domestic utes to lesbians who were married, in civil unions, or ships, avoid this outcome, a numberavoid this outcome, of states have enacted statutes providing that the he is artificial insemination, when a husband consents to his wife’s legal father. S.B. v. Elizabeth A.C.C. v. Farah M., 28 N.Y.S.3d 714, 715 (N.Y. App. Div. 2016); Counihan v. Bishop, 974 N.Y.S.2d 137, N.Y.S.2d 974 Bishop, v. 2016); Counihan Div. App. 715 (N.Y. 714, 28 N.Y.S.3d Farah M., v. 138 other states as of from matter partnership and domestic (N.Y.marriage App. Div. 2013) (recognizing comity). P.3d 29, 37 (Or. Ct. App. 2009). App. Ct. 37 (Or. 29, P.3d  2017] so they and however, constitution the whether not address do ex- requires couples. to same-sex presumption tending the ͵ App. Div. 2015) (finding non-biological parent lacked standing to challenge custody absent extraordi- absent custody to challenge standing parent lacked non-biological (finding App. Div. 2015) nary circumstances) wife was child’s marital presumptionthat biological mother’s second did not establish mother). marital presumption to same-sex couples) to same-sex marital presumption 218, 2016 2d Ann. Sess.)); 2d Ann. 218, 2016 O 1990). D applied the marital presumption in her state is rebuttable by evidence that her hus- that rebuttable by evidence her state is the marital presumption in In be vulnerable. legal paternity his would the biological father, band is not fact, in some early cases, the children were not courts held that the hus- procedure. the to consented had issue, even though he band’s legal presumption. This is so because most of the time time of the when a child is is so because most This born to a presumption. same-sex couple, they agreed will have to raise the child together, which status under parental partner mother’s gives the biological 38779-ckt_92-1 Sheet No. 42 Side A 03/01/2017 10:44:39 A 03/01/2017 42 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 42 Side B 03/01/2017 10:44:39   79 Hen- ͹ǣͲ͸  [Vol 92:1 [Vol child when a LEXIS 290, at *19–22 (Ind. LEXIS 290, at *19–22 h spouses is the child of both child is the h spouses 77 . d to meet the statedd to interests of meet P-MJD, 2016 WL 3548645, at *1–2 (S.D. Ind. P-MJD, 3548645, 2016 WL Defendant asserted that the birth asserted Defendant as the father of the 1601-DR-82, 2016 Ind. App. 2016 1601-DR-82, Obergefell Same-sex Couples? Matter of L., 2016 N.Y. Misc. of LEXIS L., 2016 N.Y. Matter 3674 (N.Y. Fam. Ct.) (apply- CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ȍ ͳȀͳͺȀʹͲͳ͹ , two federal district , two federal heldcourts have that states’ re-   See also , the more , the extensive ofmore the court ruled the two opinions,   , the Indiana department refused of vital statistics to allow  ȋ also ruled in favor of and her wife. the biological mother   Obergefell  Henderson C. Does the ConstitutionC. Does the the Parentage Require Applying to Rules  The women sued, allegingThe women sued, law violated that the state equal protec-  In Since mother her husband should not name . . . the State oral argument, During common above, as noted However, is involved. donor sperm third-party sense says that she will name her husband as the father. Whether she Whether father. as the husband her will name she says that sense the fa- that she is not married to or states father as the her husband names and accurate rights are not preserved father’s parental biological ther, the .... preserving the rights of biological fathers and maintaining accurate rec- accurate maintaining and fathers rights of biological the preserving parentage biological of ords . . . . The Court is not convinced that the challenged Parenthood Statutes are Statutes are challenged Parenthood the that not convinced is The Court tailore substantially related or narrowly 78 79. 22, 2015). Utah July at *1 (D. 4476734, 2015 WL 2:15-CV-00253-DB, No. 78. No. 1:15-cv-00220-TW Henderson v. Adams, 77. v. Bondelie, No. 32A01- Gardenour  

 ing artificial insemination statute to married same-sex couples but also allowing the nonbiological nonbiological allowing the same-sex but also couples statute to married ing artificial insemination is not based on the statute to adopt the children because her legal relationship to the children mother 2016). June 30, of them, though it did not invoke it did not invoke though of them, Ct. App. Aug. 15, 2016). 2016). 15, Aug. App. Ct. countries). recognized in some ment, saying:  70 with the marriage during ceived of bot consent ͵ tion and due process because theytion and due process created a presumption of parenthood for granted their The court motion wives, of birth mothers. husbands, but not facts, On similar for summaryjudgment. federal district the Utah court in Roe v. Patton that the state’s action was subject to heightened scrutiny because the state was applying marital presumption the differently and sexbased on gender inter- classifications.its The state supported by argued that its position was accurate fathers and maintaining ests in protecting the rights of biological records of children’s parentage. The court rejected thisbiological argu- fusals to extend the presumption to a womanmarital whose wife gives birth during the both. In equal protection, due process, or marriage violates derson v. Adams basis that birth certificate on the to be on the child’s names both women’s biological mothers the wives of the were not legal parents under state law. 38779-ckt_92-1 Sheet No. 42 Side B 03/01/2017 10:44:39 B 03/01/2017 42 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 43 Side A 03/01/2017 10:44:39 71 84 81   AND ͹ǣͲ͸  However, ISEXUAL 83 ,B AY ,G ESBIAN  82 ,L respected in their dignity their respected in Marriage and the Marital Presumption Presumption Marital and the Marriage ) with the Plaintiffs’) with the exer- sic 80 INTER who is the biological father is father is the biological who o is the biological father still is father still is biological o is the offered to heterosexual couples. couples. heterosexual to offered t maintained. If the mother names names mother the If t maintained. State Defendant’s implementation implementation State Defendant’s mption of parenthoodmption of to same-sex P. M HANNON and bring up childrenand bring . . . .” &S . 663, 671–73 (2016). (2016). 671–73 . 663, Ȍ ͳȀͳͺȀʹͲͳ͹ June Carbone & Naomi Cahn, Naomi Carbone & June OBERGEFELL’S LEGAL IMPACT EV D. What About Married Gay Men? § 3:3 (Westlaw, of the states’ Reuters, 2016). For a summary Thomson OSLIN see  J  note 55, at 260–61. note AW  L   , the court said, “stands for the proposition that any benefit proposition that any benefit “stands for the , the court said, , 2016 WL 3548645, *12–13. *12–13. 3548645, WL 2016 , supra ȋ AMILY OURTNEY , 84 UMKC L. R F   C  at *14–15. at *13. See Id. Id. Henderson   Obergefell In some states, statutes thedetermine parentageborn of a child As Susan Appleton has written, on policy grounds there seems toAs Susan Appleton be there seems has written, on policy grounds Statutes are not narrowly tailored to meet a compelling governmental in- governmental a compelling meet to narrowly tailored not Statutes are terest. By refusing grant to the presu married women, the State Defendant violates the Plaintiffs’ the violates Defendant State the women, married fundamental Clause. Due Process the under parenthood right to of the statutesof the . . .cise ofright the to parent be a by denying any opportunity them ( interferes for a significantly is which of parenthood presumption What Plaintiffs seek is for their families to be families What Plaintiffs seek is for their with considerationand treated . . . . Parenthood stated, the previously As . . . the Statutes and Parenthood The .... her husband, the third-party sperm donor sperm third-party the her husband, to If the certificate. not married says she mother is on the birth listed not wh donor sperm third-party the the father, in interests event, the State’s In either birth certificate. on the not listed of biologicalrights the preserving rec- accurate maintaining and fathers liberty interest a fundamental recognized Court long ago The Supreme home establish a “to marry, records of biological parentage no are parentage of records biological ords of biological parentage are not served. are parentage biological of ords  Obergefell - 84. 82. 83. Appleton, 81. 80.  

RANSGENDER  of marriage to same-sex now be extended must on an married couples is exactly what the married couples. But this equal basis with opposite-sex basis.” marriage on an equal of extension of a benefit Plaintiffs seek—the through assisted reproductive technology, though they vary considerably. they though through assisted reproductive technology, approaches to this situation, approaches to this  T 2017] ͵ Turning to the plaintiff’s due process claim, said: the court Post for practical reasons, for the marital presumptionestablish- important is not spouse. biological father’s male of a paternity ing the legal no principled reason that the marital presumption would not apply to two presumption no principled reason that the marital married of a child who was bornmen, one of whom is the biological father to a “surrogate” with the assistance of reproductive technology. 38779-ckt_92-1 Sheet No. 43 Side A 03/01/2017 10:44:39 A 03/01/2017 43 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 43 Side B 03/01/2017 10:44:39 . . . ,   In EL EV NIF 87 .R .§26- ͹ǣͲ͸ If the E  AW AND [Vol 92:1 [Vol 85 ODE 89 :L LACKSTONE .C B LA On the other EARTH text accompanying in most states states in most H . 86 ILLIAM . §§to -605 14-2-601 90 . §§ to -305; 78b-15-301 NN . The statute was the last infra NN .A A see infra TAT ODE . M (2015); -305 to 46/301 C .S Obergefell . (West to -305 tit. 10, §§ 7700-301 OVERNING THE Part IV.A. YO . §§ 2009); (West to -305 40-11a-301 TAT NN TAH ,G see NN .S .A for S. Equal. v. Mississippi Dep’t of Human .A OMP TAT TAT .C .S ROSSBERG LL G KLA 207–15 (1985) on developments in the American colonies. in the American on developments 207–15 (1985) w think this through. for helping me ICHAEL M MERICA §§ W (2016); 26.26.300–320 A CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ȍ ͳȀͳͺȀʹͲͳ͹ Thus, there is rarely, if ever, a practical occasion for ODE . §§ U 2016); (West 160.301–305  ’s Implications for Rebutting the Marital Presumption  88 .C NN ENTURY See generally A  C EV   .R ODE ȋ §§ O (2016); to -15 14-20-11 §§Delaware, been adopted in have 301–305 (2002). These provisions of the act .C ASH , *287.   CT  ODE AM A INETEENTH Obergefell . tit. 19-A, (2015); N.M. §§ 1861–1865 S .F .C . tit. 13, §§ I (2016); 750 -305 to 8-301 N  E. EX NN NN  ENT If there are no specialstatutes, generally law rules family applicable Although at common-law the marital Although at common-law for opposite-sexpresumption A .A 89. Richard Storro Thanks to Professor 87. paternityParentage Under the Uniform disclaiming Act, theat can sign a document husband 88. barred couples of the statute that a Mississippi federal district held that Mississippi In 2016, a 85. On the legal position of unmarried fathers generally, 90. law At common the presumption be rebutted only by showing that the husband could marital 86. of paternity, voluntary acknowledgments of For a discussion   OMMENTARIES ODE

AMILY IN ARENTAGE TAT  notes 100–14. notes 100–14. the time the same and both can be filed. U of paternity, biological father signs the acknowledgment Illinois, Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming. D Illinois, Maine, New Washington, and Wyoming. Texas, Utah, Mexico, North Dakota, Oklahoma, 2016); T (West 2016); W 2016); (West (2016). Alabama, thesehowever, omitted sections when it adopted its Parentage Act. A biological mother of the child, the “surrogate,” mother of the child, biological the married, she and is not filing legal parentage by and could establish his biological father signing voluntarywith the state a acknowledgment of paternity. Serv., 175 F. Supp. 3d 691 (S. D. Miss. Mar. 31, 2016). 31, Mar. Miss. D. 3d 691 (S. 175 F. Supp. Serv., 17-302 (2008). 17-302 was unconstitutional under children adopting gender from same Campaign ban in the country. express statutory remaining F  72 allow the statutes If the donor/intendedsperm to become father legalthe parent as well. to become a spouse allow for his father, they probably will for of legal process and some kind are applied, paternityestablishing of the to conceive be required. the child will provided the sperm man who ͵ had been out of the kingdom of England for more than nine months. 1 W than nine months. of England for more the kingdom of had been out N.D. C invoking the marital presumption when the married couple is male. when marital presumption the invoking This rule was complemented by Lord Mansfield’s rule, which prevented either spouse from giving by LordThis rule was complemented rule, which prevented either spouse from Mansfield’s P C S C either case, however, absent a special reproductive technology statute, the absent a special reproductive either case, however, remainsmother a legal parent, and ordinarily will parties the want to elimi- nate that legal relationship. would require a legal proceeding, This such as hand, if the mother is hand, if the mother of her husband’s legal pa- the presumption married, proceeding. legal of some kind through first be rebutted ternity must married couples was conclusive unless the husband had literallymarried couples was conclusive out of been unless the husband had have been conceived, could when the child the country an adoption or an action for termination of parental rights. During that legal that During rights. of parental action for termination an adoption or an parentage of the proceeding, the legal father’sbiological could be husband established as well. 38779-ckt_92-1 Sheet No. 43 Side B 03/01/2017 10:44:39 B 03/01/2017 43 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 44 Side A 03/01/2017 10:44:39 73   Harris, ͹ǣͲ͸  see Michael H. v. Michael 98 Eng. Rep. 1257, 98 Eng. §§ 7540–7541 2004); (West ODE  .C AM .F AL ternity. Goodright v. Moss, ternity. Even without a statute, a number of Even without a statute, a number 94 and courts have discretion to deny a motion for to deny discretion for and courts have a motion But when the marital presumption is invoked in the marital presumption But when 93 § 602 (2002). Ȍ ͳȀͳͺȀʹͲͳ͹ note 13note to deny standing to men states statutes least six at 1308–13. At OBERGEFELL’S LEGAL IMPACT 91 CT § 607(b). A Under the UPA, an two be action brought within must   Id. 92 s best interests. s birth,  ’ ’   ȋ ARENTAGE   . § (2015). The constitutionality of an earlier version 109.070(2) con- of the California .P  §engage in sex at the did not cohabit or 607(a). father and the If the presumed mother § provisions in current state statutes, of similar 608. For a detailed discussion NIF TAT , (1988). 118–30 110, U.S. 491 Id. Id.  .S  In many circumstances, state law precludes of the rebuttal pre- marital EV  92. U 93. 94. 91. circumstances. of paternity in limited presumption recognize a conclusive A few states still .R   R

 sumption the challenger because of limitations has standing, lacks a statute rebuttal or rebutting the presumption, is estopped from run, the challenger Parentage Act the Uniform example, is contrary to the child’s interests. For (“UPA”) of 2002 standing to rebut the presumption grants to the child, the mother, father a legal (including adjudicated a be man whose paternity is to and an alleged father), the stateagency, child support enforcement and adoption agencies. O clusive presumption was upheld against a biological father’s due process challenge in due process father’s was upheld against a biological clusive presumption Gerald D. the context of a same-sex marriage, it of a same-sex marriage, the context for thiswould be nonsensical rebuttal the since who rule to apply, woman spouse of the will bybore the child she providedin the case where the child (except be related to not definition presumption the marital recognize child). To became the for the egg that personspouse of the to recognizing that the is equivalent same-sex couples is a legalwho bore the child parent because she is the the intended parent, the con- does indeed compel If the Constitution or both. functional parent, is a benefit of presumption clusion that the marriage to marital which same- the Constitution compelssex couples are entitled, that at least recognition The be based on function or intention. legal parenthood must sometimes willquestion courts affects theconfront is how this development have to opposite-sex couples. for marital presumption of the law governing rebuttal probable time of conception, and if the presumed father never held out the child the presumed of conception, and if as his, the probable time action may at be anymaintained time. For example, in CaliforniaFor example, and Oregon, third parties cannot if the ismarriage challenge the presumption intact and the spouses object to the third party challenge. C  pa biological husband’s on the that cast doubt testimony 2017] rebutted be may presumption the are opposite-sex, spouses today, the when with genetic evidence. ͵ years of the child genetic testing a partydenying that based on findings is estopped from be con- would disestablishing paternity or allowing testing that paternity or trary to the child Reforming Paternity Law, supra Reforming Paternity 1257 (KB 1777). Together these rules kept out of court highly reliable evidence that a child was not in biological child. fact the husband’s challenge the marital presumption based on a claim challenge the based on a claim to presumption marital to the child of a woman have fathered married else. And a numbersomeone authority to grant courts on challenges, have short statutes of limitations reject serve the child’schallenges to best interests, or both. 38779-ckt_92-1 Sheet No. 44 Side A 03/01/2017 10:44:39 A 03/01/2017 44 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 44 Side B 03/01/2017 10:44:39   In re ͹ǣͲ͸  [Vol 92:1 [Vol Oberge- see Reforming Marriage of Ross, 2d 1089, 1092–94 2d 1089, In re 775, 779–81 (N.J. 1985) 775, 779–81 both parents. As a both parents. As a Other courts have have Other courts are 95 Marriage and the Marital Pre- , Inheritance law and the Marital and the Marital , Inheritance law 378 (N.D. 1993) (refusing putative 1993) (refusing putative (N.D. 378 . L.J. 437 (2016). 96 rner v. Whisted,A.2d 935, 940 (Md. 607 ROP P v. H.T.B., 498 A.2d v. H.T.B., 498 Adoption of R.S.C., 837 P. of Adoption (same). For further discussion, further For (same). In re Carbone & Cahn, 1991) (applying statute and refusing putative father’s putative statute and refusing (applying 1991) note 13, at 1314–17. note 13, OMMUNITY see .&C LAN H. v. K.D., 506 N.W.2d 368, .P CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ST note 84,note A. Monopoli Paula at 667; Ȍ ͳȀͳͺȀʹͲͳ͹ very likely requires that same-sex couples have the   supra   does not directly require that anydirectly require that does not apply of these rules when  note 13, at 1315–18. Marriage of K.E.V., 883 P.2d 1246, 1252–53 (Mont. 1994) (mother’s actions es- (mother’s (Mont. 1994) 1252–53 Marriage 1246, of K.E.V., 883 P.2d ȋ Obergefell, 8 E Obergefell Reforming Paternity Law, supra    -Obergefell, Ban v. Quigley, 812 P.2d 1014, 1018–19 (Ariz. Ct. App. 1990) (remanding for determina- for (remanding Ct. App. 1990) (Ariz. Ban v. 812 P.2d 1014, 1018–19 Quigley, Whether the courts will agree with this position uncer- is, however, Adoption of R.S.C., 837 P.2d at 1093–95 Adoption of R.S.C., 837 P.2d at 1093–95 See In re See   97 While Obergefell discussion couple parenthood is that when a same-sex of marriage and In re 97. For other perspectives on this issue, 96. 95.  

 Paternity Law, supra Presumption After sumption Post (father’s actions estopped him from challenging his paternity); fromK.E.M. v. P.C.S., paternity); challenging 38 A.2d 798, 810 (Pa. his (father’s actions estopped him Pettinato v. Pettinato, paternity); challenging husband’s her from estop actions may 2012) (mother’s paterni- challenging husband’s her from actions estopped (R.I. 1990) (mother’s 582 A.2d 909, 912–13 ty); topped her from challenging husband’s paternity); M.H.B. paternity); challenging husband’s her from topped as other judicial strategies to prevent challenges to the marital presumption to prevent to protect the child’s inter- challenges to the as other judicial strategies ests, see Harris, (Wyo. 1992) (holding that presumptive but not biological father’s status could not be challenged later status could not father’s biological but not that presumptive 1992) (holding (Wyo. For a discussion of to have child adopted by another man). in effort by mother as well kind of case, this to require blood tests would be in best interests of child); Tu to require blood tests would be in best interests to require attempt blood test paternity); determine to 1992) (remanding for determination of whether allowing putative father’s attempt to require attempt blood test father’s of whether allowing putative for determination 1992) (remanding B. of child); best interests would be in paternity); tofather’s attempt require blood test to determine MichaelK.T. v. Tina L.T., 387 S.E.2d showing tests of blood determinationfor admission whether Va. 1989) (remanding (W. 866, 872–73 action, was in best interests of child); request in divorce father, at husband’s husband was not 729 (Wis. 719, of C.A.S., 468 N.W.2d Paternity sex couples. On the other hand, the key assumption underlying the key the hand, other sex couples. On the fell byis raising a child together they agreement, mutual matter of equal protection, members of opposite-sex couples should have of opposite-sex members matter of equal protection, when theythe same protection child together, regardless are raising a of whether the father. At a husband is the biological outsiders to minimum, legal parentage the husband’s be able to challenge should not the marriage marriage spouse in a same-sex based on biology. since neither Further, on lack of biological based presumption rebut the should be able to marital opposite-sex spouses in an mar- should be true for the same relationship, riage. child); Williamson (Ga. Ct. v. App. 2010); 690 S.E.2d 257, 258–59 Williamson, 783 P.2d 331, 338–39 (Kan. 1989) (remanding for determination of whetherdetermination for (remanding (Kan. 1989) 338–39 331, 783 P.2d attempt allowing mother’s reached the reached the on result same that the party the basis rebuttal offering the evi- denyingestoppeddence is because of parentage from reli- the detrimental child. the sometimes, other party or, ance of the the couple is opposite-sex, since it does not address the since it does not address the couple is opposite-sex, rights of opposite- tion of whether allowing putative father’s attempt to require blood test would be in best interests of best interests would be in to require blood test attempt putative father’s tion of whether allowing  74 can presumption rebut the to offered evidence that genetic have held courts best interests. child’s to protect the be excluded ͵ tain, of course. for pro- it provides support and while marital presumption, benefit of the 38779-ckt_92-1 Sheet No. 44 Side B 03/01/2017 10:44:39 B 03/01/2017 44 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 45 Side A 03/01/2017 10:44:39 , 75   See ͹ǣͲ͸  LACKSTONE HILDREN C But still, his paternity note 90, at 207–15. note 164 (1972); Gomez v. 164 (1972); Gomez Perez, 409  99 MARITAL - response, the 1973 Uniform Parentage Uniform the 1973 response, supra , ON N However, under the law of most 98 ROSSBERG ARENTAGE OF has nothing to say about the extension of these sayextension of these has nothing to about the P v. Aetna Cas. Sur. & Co., 406 U.S. Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT EGAL EGAL Gordon, 430 U.S. 762 (1977). In Gordon, U.S. 762 (1977). 430   L  Obergefell  HE  A. Unmarried Fathers’ Routes to Legal Paternity ȋ   IV. T    The routes to legal paternityThe routes to legal are, for part, the most men for unmarried On its face, The only legal parent of a non-marital child at the time of birth is the of birth is the time child at the non-marital legal parent of a The only note 90, at *454, *458–59. By the early nineteenth century, they were recognized as the legal  98. children were bastards—the children of no one. 1 B law, At common non-marital 99. children against non-marital discrimination Court decisions in the 1970s held that Supreme , (1968); Labine v. v. Illi- Levy v. Vincent, 401 U.S. 532 (1971); Stanley Louisiana, 391 U.S. 68,  

 topic. supra rooted in the biological relationship. However, severalrooted in the biological doctrines expressly legal to attain who are not fathers allow biological or in effect men that states, though, a legal finding adopting). In most parenthood (without vulnerable to challenge on the is is a child’s legal father man an unmarried the biological father. basis that he is not legal principles to same-sex couples because of its focuslegal principles to Nev- on marriage. ertheless, its premise that functional implicit parent-child relationships a refusal to allowshould be protected could support challenges to legal parentage based on lack of biological connection. Whether courts will be willing to take those steps is far from certain, and, at least in some states, seems unlikely. else exists to identify anyone presumption marital like the Nothing mother. into the twentiethas a possible parent. Indeed, well century, manynon- who couldhave legal fathers did not marital children simply claim custodi- paternity father could be identified, his al rights, though if the biological the purpose of impos- for proceeding might be established through a legal on him. obligation ing a child support must be legally be must established first. states today,once a man’s paternity rights is established, he has the same and duties as a father, at least in theory.married  2017] the on biology, based challenges against of spouses the parentage tecting does not direct- Further, the opinion clear. from that support is far extent of ly ofaddress the parentage to unmarriedare born the children who many either same-sex couples, to this next section turns opposite-sex. The or ͵ violated equal protection, and called into doubt laws denying custodial rights to unmarried fathers. and called into doubt laws denying custodial rights to unmarried violated equal protection, e.g. children of their Americanmothers in most states. G U.S. 535 (1973); Trimble v. Trimble U.S. 535 (1973); Act provided that once the parent-child relationship is established between an unmarried man and his nois, 405 U.S. 645 (1972); Weber (1972); Weber nois, 405 U.S. 645 38779-ckt_92-1 Sheet No. 45 Side A 03/01/2017 10:44:39 A 03/01/2017 45 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 45 Side B 03/01/2017 10:44:39 .   In 101 NIF 100% ͹ǣͲ͸ 102  [Vol 92:1 [Vol , 7 tbl.P-2, . L. 167–68 157, Q. EPORT R AM , 45 F , §§ (2002). 308 307, CT A One Year Pilot Summary, One Year Pilot in RELIMINARY , The UPA provisions regard- The UPA provisions 104 ARENTAGE 2015_preliminary.pdf. ICHIGAN .P M NIF U , FY 2015 P T ’ see TATE OF administrative proceedingwhichever relating to the child, NF E ,S 8 paternity births at hospitals, 1,660 unwed In study of (2001). Court-ordered genetic testing is the only basis basis onlyCourt-ordered genetic testing is the 103 and—as is the case with children born to mar- 105 UPPORT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW 106 Ȍ ͳȀͳͺȀʹͲͳ͹ S §§ 1–2 (1973). UPPORT S ROGRAM CT P  A HILD  C  HILD  OF C  . ȋ FF (2002). OF OF ARENTAGE   .O CT  .P . STABLISHMENT §§ 602, 609,§§ 602, 308. 307, § 631(1). A ICH E FF There is no requirement that genetic testing precede signing the the precede signing genetic testing that no requirement There is NIF Id. Id.   Questioning Child Support Enforcement Policy for Poor Families Enforcement Questioning Child Support While all states have statutes that create create that have statutes all states While to establish proceedings legal Federal and state laws provide that a VAP may be revoked at-will by 100 105. 106. 100. 42 U.S.C. § 666(a)(5)(C). 101. M 104. days within sixty the acknowledgment More specifically, either party be able to rescind must 102. states’ authorizing VAPS as a condition of the legislation Federal law requires states to have 103. O  

ARENTAGE ATERNITY  from the date of the VAP. from ing challenges to VAPs after the first sixty days limit standing to the child, child, standing to the limit to VAPs after the first sixty days ing challenges whose paternity (the legal father is to be adjudicated and a man the mother, or an alleged father), subject to a two-year statute running of limitations documents, and most VAPs are signed at the time of birth at the hospital or of VAPs and most at the time are signed documents, other birthing facility, testing without genetic usually having been done. paternity (sometimes called filiation actions), the paternity of the greatthe of paternity the (sometimespaternity filiation actions), called todaymajorityoutside by is established marriage born of children a volun- taryby signed paternity of acknowledgment document A VAP is a (VAP). fa- as the that identifies the putative father and the a child’sman mother ther. occurs first. 42 U.S.C. § 666(a)(5)(D)(ii).points, state Because the federal laws are so specific on these laws are fundamentally similar. For examples, http://www.acf.hhs.gov/sites/default/files/programs/css/fy  parents and as for all other same be the to that relationship should child, the rights and duties attendant children. U 76 ͵ P was voluntarily established of the cases, but in only 112 cases in 78.5% was a genetic test requested of paternity wasbefore an acknowledgment signed. 42 U.S.C. programs. and child welfare participation in the federal public welfare § 666(a)(5)(C)–(D) and its state(2012). The federal child support program law requirements described in are Leslie J. Harris, for setting aside a VAP, ried women—courts have authority to deny requests for genetic testing deny requests to ried women—courts have authority denying paternity is estopped from based on findings that the challenger be contrary to paternity would or disestablishing and that allowing testing When the document is filed with the state is filed When the document it estab- office of vital statistics, lishes legal paternityhas the effect of a judgment of paternity. and 2015, 1.07 million of the 1.49 million cases in estab- paternitywhich of the 1.49 million 2015, 1.07 million was lished were done bya VAP. P (2011). Article 3 of the Uniform Parentage Act is a model statute for state law establishing VAPs. U Parentage establishing VAPs. Act is a statute for state law model (2011). Article 3 of the Uniform of the signing or the date of any judicial or of the signing either signatory for 60 days; after that, iteither signatory can be set for 60 days; aside only on the basis of fraud, duress or material of fact.mistake 38779-ckt_92-1 Sheet No. 45 Side B 03/01/2017 10:44:39 B 03/01/2017 45 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 46 Side A 03/01/2017 10:44:39 . . . 77   INN ASS KLA The ͹ǣͲ͸  §§ 602- . § 168- 113 NN CT A . § 5102(b)(2) .A § 26.26.116(2) NN TAT . § 26-17-204(a)(5) ODE 111 .A .S .C . § (West, 584-4(a)(4) ODE . § (2010); 40-11A-204 EV TAT ARENTAGE EV . § (West 19-4-105(1)(d) NN .C NN .S .P NN .R LA .A .A ONS NIF § O (2016); 14-20-10(1)(e) .A ASH C TAT TAT  . § M 2016); (West 31-14-7-2 TAT .S ODE NN AND .S A . EV .C Eighteen of these states, like of these states,Eighteen like EV .R TAT ENT ODE 109 .R In states governing stat- without Just as state law about rebutting Just as state law .S AW .C A OLO 110 ND 114 note 13, at 1321–27. . § N.H. (2015); 40-6-105(1)(d) R note 13, at 1319–20. NN Actual Actual on challengesstate law is VAPS to A . § 2016); W (West 160.204(a)(5) 107 ODE NN § are stricter 4 Act’s requirements (1973). The 2002 than those of the . § N. 2016); (West 9:17-43(5) M. S Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT A .C NN CT A  .A § 2004); C 7611(d) (West ONT  ODE While eight states have statutes substantially states have statutes While eight similar to . § (2016). 14-2-504(v) . H tit. 13, § 8-204(b) (2016);  .C TAT §§ 2002). (amended 204(5) 201(b)(1),  NN NN ODE . § 2015); (West 126.051(1)(d) N.D. C 108  notes 92–94 notes regarding rebuttal of UPA provisions and accompanying text. The AM CT A .A ȋ NN .C A .F . ch. 209C § 2d 218, 2016 ch. (excluding ch. 260 Westlaw through (West, 6(a)(4) ARENTAGE .A AM TAT   EX ODE .P NN  Nineteen states have statutes modeled on the uniform acts. uniform statutes Nineteen states have the on modeled §§ 609. 608, at 1327–35. .S A .F TAT .C NIF . § 2016); 23 (West tit. 10, § 7700-204(5) P YO AL .S Id. See Reforming Paternity Law, supra Id. See supra Id.  EL 112 NN  ARENTAGE AWS AWS EV See Reforming Paternity Law, supra The 1973 and 2002 UPAs also provide a second, informal way a for UPAs also provide The 1973 and 2002  . § M (2015); 257.55 .A .P .L .R 113. The states with “holding-out” Delaware, Hawaii, statutes are Alabama, California, Colorado, 107. 108. early the dramatic increase in voluntary paternity With (and establishments in a child’s life 109. 110. 114. 111. 112. U   EN EV NIF

TAT TAT  Sess.) and (man have mother receivedmust child into their home and held out child as theirs); M the marital presumptionthe varies, so does marital state law about rebutting this pre- highly variable. highly Indiana, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, NewNevada, New Hampshire, Indiana, Massachusetts, Minnesota, Montana, Mexico, states with Texas, Washington,of the Wyoming. Pennsylvania, and Seven North Dakota, Oklahoma, the first live with the child during UPA by requiring that the follow the 2002 man holding out statutes limit. A no time other twelve impose two years of the child’s life, and the (West 2016); T (West 2016); D 608. man to become a legal father. They provide that a man who takes a child man who legal father. Theyman to become a provide that a his is rebuttably out the child as to be the presumed and holds into his home father. utes, case law is also mixed, often allowing a VAP to be set aside based on often allowing a VAP to be mixed, utes, case law is also claim). the factsgenetic evidence (unless support an estoppel 1973 Act; most importantly, the have lived1973 Act; with the child for two years,most man startingmust at birth. U Westlaw through Act 1 (End), 2016 2d Spec. Sess.); I Westlaw through Act 1 (End), 2016  2017] the child’s best interests. ͵ S N Uniform Act Uniform places the same limits on rebutting this presumption as those presumption. the marital that apply to B:3(1)(d) (2014); N.J.B:3(1)(d) (2014); S (2008); C (2008); the UPA, give courts discretionthe UPA, VAP based on es- to set aside a to refuse best interests of the child. the toppel or G S (2016); W (2016); the UPA, the UPA, say than half more some that in circumstances genetic evidence alone to be sufficient may set aside a VAP. the great improvements in genetic testing) has come an increase in the occasions for legal fathers to question their paternity. Another driverthe ag- efforts is disestablishment of the increase in paternity childrengressive efforts by state as a step to establish paternity of non-marital governments toward parentage presumptions are the same, regardless of the presumption. U regardless of the presumption. are the same, parentage presumptions collecting child support from nonresident fathers. Such suits are usually brought against poor people suits are usually brought against nonresident fathers. Such from collecting child support and state laws, in compliance with assistance), (where both and child are receiving public mother federal laws, allow the suits to be settledgenetic test or without resolved default against the alleged by father. 38779-ckt_92-1 Sheet No. 46 Side A 03/01/2017 10:44:39 A 03/01/2017 46 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 46 Side B 03/01/2017 10:44:39   ͹ǣͲ͸  [Vol 92:1 [Vol ., the Cali- In that case, the In that case, the The husband had 116 118 In re Jesusa V , 338 P.3d 908, 908 (Wyo. 2014). 908 (Wyo. 338 P.3d 908, , L.P. v. L.F.L.P. v. CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW , it cited a statute providing that when paternity when paternity , it cited a statute providing that Ȍ ͳȀͳͺȀʹͲͳ͹ ., where the California Supreme Court held that the Supreme ., where the California    The effect was to provide a legal parent to a child who   Inter alia 117 ȋ 119    at 937–41. . at 11. . Id. Id   In a second juvenile court dependencycase, The leading exception to the principle that biology rebuts the holding- the that biology the principle to rebuts exception The leading In re Nicholas H 115 115. A recent case reaching this result is 116. 2002). 934 (Cal. 932, 46 P.3d 117. 118. 2004). 14 (Cal. 2, 85 P.3d 119.  

 and claimed paternity, invoking the holding-out presumption. The juvenile The juvenile presumption. paternity, invoking the holding-out and claimed court refused to rebut the California Supreme and the presumption, Court the intermediate California ap- decisions from citing supporting affirmed, pellate courts. otherwise would have gone into the foster care system, perhaps never to be or his absent biological father. his mother reunited with been separated from the mother for three years,with him the mother but she visited been separated from as the father. In upholding the that out he had held and supported his claim of paternity inrebut the presumptions not to husband’s argument his favor, preference for envision an automatic the court said, “the Legislature did not biological fathers, even if the biological father has come forward to assert his rights.” man had lived with the mother for some time during her pregnancy, and his her pregnancy, and his for some time during the mother man had lived with was on the child’sname birth certificate, but everyone that he was agreed father. not the biological father The biological was known, but he had nev- When the his location was unknown. the child, and er had contact with that he was dependent before the juvenile court on allegations child came because of his inabilitymother’s to care for him, the came man forward out presumption is developed in a line of California cases. The first case is developed in a line of California out presumption was presumption is not necessarilypresumption by rebutted such evidence when the result and homeless.” a child “fatherless would be to leave  78 limitationsstatute of unless a states, most sumption. In has court a run, has a court or paternity, man’s deny the to is estopped a challenger held that ͵ presumptions favor two different men, the court should favor the one should favor the one the court favor two different presumptions men, fornia Supreme Court held that a husbandfornia Supreme Court held that a who relied on the marital pre- sumptionwell as the as prevailed over the presumption holding-out biological father, who was incarcerated and who also mother for raping the presumption. claimed the benefit of the holding-out has held that rebutting the presumption is contrary to the child’s interest, the child’s to is contrary presumption rebutting the that has held willgenetic evidence be to admitted the “holding-out”rebut presump- tion. 38779-ckt_92-1 Sheet No. 46 Side B 03/01/2017 10:44:39 B 03/01/2017 46 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 47 Side A 03/01/2017 10:44:39 . 79   NIF ͹ǣͲ͸  52 P.3d 255 52 P.3d , Instead, the Instead, the Ct. App. 2009). The 120 . Garcia v. Iglesias, 77 121 , 85 P.3d at 14. 85 P.3d , ex rel 99, 101–02 (Minn. Ct. App. 101–02 99, . Of course, two presumptions (orcourse, two presumptions . Of  § 7612 (West 2004)). In all states, ODE .C In re Jesusa V. S.W.3d 141, 146 (Mo. 141, S.W.3d 542 (Kan. 2013); Doe v. Doe ption, and a third man from a presumption from ption, and a third man AM .F AL Pub. L. No. 114-229) No. L. Pub. N.A.H. v. S.L.S., 9 P.3d 354, 354–55 (Colo. 2000), for 2000), (Colo. N.A.H. 354–55 v. S.L.S., 9 P.3d 354, interpreted asMissouri’s statute on clashing presumptions Paternity of B.J.H., 573 N.W.2d of Paternity see In re Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT   Frazier v. Goudschaal, 295 P.3d  State, 92 P.3d 834 (Wyo. 2004); Dept. of Revenue 2004); Dept. of Revenue (Wyo. State, 92 P.3d 834 Courtney v. Roggy   ȋ see also § background (2002). 204 cmt.   Jesusa V., 85 P.3d at 11–12 (citing C CT  B. Unmarried Fathers’ Applying Lawto Same-Sex Partners A In re   In six states, the holding-out presumption has been deployedprotect to In six states, the holding-out presumption While both the VAP and the holding-out presumption typically identi- presumption VAP and the holding-out the While both  120. 121. The court also cited other states holding that, on the right facts, the decisions from marital  

ARENTAGE  logical mother, but who was not married to the mother and who did not but who was not logical married mother, the relationship between a lesbian who raised a child child’swith the bio- inability incarceration). because of his to care for the child So.3d 878 (Fla. Dist. Ct. App. 2012); Ct. App. 2012); So.3d 878 (Fla. Dist. (Haw. 2002); G.D.K. v. U.S.C. § 666(a)(5)(G) (West, Westlaw through even all three) can also benefit the same When in clash, man. the presumptions states, the pre-most best interests, which preserv- that prevails is the one that advances the child’s often results in sumption paternity of the than establishing the legal rather with the child ing the husband’s functional relationship another example; relationships between children and men who are raising them, even though them, children and men who are raising relationships between are not biologicallythe men and the children Genetic testing related. is not be satisfied before a VAP or a condition that must a prerequisite to signing is challenged, arises. If neither a VAP the presumption nor the presumption and a non-biological relationship, raised biological about the no question is Further, in some recognized as a legal father. can be functional father states, a court presump- may holding-out a VAP or the challenge to reject a estoppel or the child’s interests. tion based on band was appropriate because of his substantial relationship of his substantial appropriate because band was the child with his relative lack father’s and the biological to mention (not of involvement 1998) (best interests is a factor but is not controlling in choosing between competing presumptions of presumptions between competing choosing not controlling in is a factor 1998) (best interests but is paternity). In contrast, court’s authority father. U protect a child’s relationship to a presumed to use estoppel to genetic test results indicate a threshold probability that the alleged father is the father of the child. 42father ofis the the father the alleged that indicate a threshold probability genetic test results biological father. For another example, father. For another example, biological fy protection to both can also serve to give legal a child’s biological father,  2017] considerationsweightier on founded logic. and policy of ͵ favoring the presumption based on biological paternity. 302 paternity. biological based on presumption favoring the 2002 Uniform Parentage Act does not address clashing presumptions explicitly, relying instead on the Parentage Act does not explicitly, relying instead on the address clashing presumptions 2002 Uniform two or even three different men may benefit from a presumption of paternity: the husband from the the husband from of paternity: a presumption benefit from two or even three different may men themarital presumption, holding-out presum another from based on positive results of genetic testing. Federal childbased on positive support law requires state law to create a conclusive when presumption of the state—a option of paternity the or—at rebuttable presumption, P court said, a court said, consider court must whether be would a presumption rebutting “appropriate” circumstances. under the facts,On these hus- ruling for the presumption of paternity is notpresumption rebutted by genetic evidence. 38779-ckt_92-1 Sheet No. 47 Side A 03/01/2017 10:44:39 A 03/01/2017 47 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 47 Side B 03/01/2017 10:44:39  20  The The ͹ǣͲ͸ K.M. v.  [Vol 92:1 [Vol 129 the Massa- Kristine H. v. State supreme State supreme were the first to were the and New Mexi- and New 3, 1139 (Mass. 2016). 123 Voluntary Acknowledge- 126 Partanen v. Gallagher Jesusa V. . and . parent. 59 N.E.3d 113 subsequently held that unmarried subsequentlyheld that unmarried at 475–88. In New Hampshire, 128 that a woman who donated her eggs to her partner— her to her eggs who donated woman a that . Id. 125 ,a lesbian who had court held that the Nicholas H Nicholas court held that a biological who had stipulated to mother a 117 P.3d 660, 666 (Cal. 2005). In one companion case, (Cal. 2005). In one companion 666 660, P.3d 117 CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Voluntary Acknowledgments of Parentage for Same-Sex Couples, of Parentage for Voluntary Acknowledgments Ȍ ͳȀͳͺȀʹͲͳ͹ 59 N.E.2d 1133 (Mass. 2016). & L. [hereinafter Harris, (2012) 471–72 467, Y ’  Massachusetts,  OL The effect is to give the womento give the effect is The the legal par- status of  124 .P  122  OC S ȋ at 553, 557. at 553, Id.   Guardianship of Madelyn B., 98 A.3d 494, 501 (N.H. 2014). 501 (N.H. 494, 98 A.3d B., of Madelyn Guardianship Parental Responsibilities of A.R.L., 318 P.3d 581, 581–82 (Colo. App. 2013).  Leslie Joan Harris, Leslie Joan Harris, Chatterjee v. King, 280 P.3d 288 (N.M. 2012). 283, ENDER Elisa B. v. Superior Court Elisa B. See In re See In re  and a Colorado court appellate  , 117 P.3d 690, 690 (Cal. 2005), the , 117 P.3d 690, 690 (Cal. 2005), Functional parenthood is legally protected to a limited extent for chil- extent is legally protected to a limited parenthood Functional California cases relyingCalifornia on ], on second-parent adoptions for lesbian-couple-headed families. As the title of this article indi- As the title of this article families. for lesbian-couple-headed adoptions ], on second-parent , 117 P.3d 673, 682 (Cal. 2005), the court held court the 682 (Cal. 2005), 673, , 117 P.3d 127 .U.J.G 125. Partanen v. Gallagher, 124. Frazier v. (Kan. 2013). Goudschaal, 295 P.3d 542 This case holds that a woman who has held 122. 126. 123. Elisa B. v. Superior Court, 127. 128. 129. partner one lesbian when that (holding 2013) (Nev. 1032 1027, 309 P.3d v. Damon, St. Mary   M

 dren born outside marriage. At least in some states, courts have discretion At least in some states, courts outside marriage. dren born rela- based on lack of biological findings to refuse challenges to paternity tionship, either because thethe chal- challenger is estopped from bringing lengeprotect the child’s best interests. Further, one paternity law or to been ex- holding out—has of parentage from doctrine—the presumption the couples. For the most part, however, tended in a few states to same-sex courts in Kansas, judgment declaring that her lesbian partner was a legal parent was estopped from challenging that from declaringher lesbian partner was a legal parent was estopped judgment that judgment. prevailed parentage; the woman determine action to bring an standing to have hers as may out a child bio- signed by the of a co-parenting agreement because but also presumption, of the not only because logical mother. Lisa R. same outcomereached had the courts have been adopted robust de might the courts took. is not the route but that facto parent rules, women could be legal parents under the “holding-out”the under could be legal parents women provision. A Nevada conclusion. in dicta that it would reach the same court also indicated planned for the birth of two children with her partner and who had lived as her partner and who two children with birth of the planned for children and was obliged, out as her since birth had held them their mother split up. the when mothers them as a parent, to support extend the holding-out presumption to women partners of biological moth- of biological partners women to holding-out presumption extend the ers. In  ments forcates, it an argument makes including a sketch of the couples, extending same-sex VAPs to extension supporting this constitutional argument 80 child. the adopt ͵ A co, who conceived through in vitro fertilization—was also a legal mother, and that a statute providing that a and that a statute providing fertilization—was also a legal mother, vitro in who conceived through case, her. In the second companion to fathernot apply the legal should donor is not sperm chusetts Supreme Judicial Court assumed that a same-sex couple could sign a VAP and so could estab- a VAP and so couple could sign that a same-sex Judicial Court assumed chusetts Supreme lish the partner who was not the biological parent as a legal ents. E.G. provides the egg for the other to bear a child, both may underbe legal mothers the state parentage act). 38779-ckt_92-1 Sheet No. 47 Side B 03/01/2017 10:44:39 B 03/01/2017 47 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 48 Side A 03/01/2017 10:44:39 81   136 ͹ǣͲ͸  Colora- Reforming URRENT 130 C ex parents); M.M. and New Mexico. and New ex partners); Harris, 135 note 13, at 1310 n.99 (limits on (limits 13, at 1310 n.99 note  Parental Responsibilities of A.R.L., parents and same-s supra NADEQUACY OF I , In re Michigan, THE ROPOSAL , P 134 us of unmarried same-s unmarried us of would encourage states to recognize the states to would encourage AND A , note 13, at 1311 n.105–08 and accompanying textaccompanying (limits on and note 13, at 1311 n.105–08 BERGEFELL AW O Reforming Paternity Law L supra . § (2016); 14-10-123(1)(c) Ȍ ͳȀͳͺȀʹͲͳ͹ , may be encouraging the development of legal prin- of legal may the development be encouraging OBERGEFELL’S LEGAL IMPACT Massachusetts, Obergefell NN  133 .A   A. The Uneven Protection from State to State State to A. The Uneven Protection from TAT  MPACT OF MPACT OF note 13, at 1310 n.82 (limits on rebutting marital presumption), and 1326 n.194 and 1326 n.194 on presumption), marital rebutting note 13, at 1310 n.82 (limits  § functional (2016) (protecting 16-831.01(1) .S I notes 120–125doc- holding out on rebutting text (limitations accompanying and Iowa, ȋ EV Obergefell HE ODE 132 supra .R   T  , note 123note couples); to same-sex doctrine out text (extending holding and accompanying OLO V. See supra  D.C.,  Reforming Paternity Law supra As this paper has shown, some jurisdictions have case law and statutes The promise that The promise  131 133. Gartner v. Iowa 335, 351 (Iowa 2013) (parental status of Dept. Pub. Health, 830 N.W.2d 130. 132. D.C. C 131. C  

 parent-child relationship. For these reasons, new statutesparent-child relationship. For these to protect func- fully relationships more are needed. tional parent-child families across that provide broad protection to functional a range of situa- or their equivalent, pro- claims recognizing de facto parent tions, including together, who raise a child partners same-sex both tecting parenthood of or disestablish the efforts to rebut the marital presumption and limiting California, include fathers. Examples unmarried paternity of do, v. T-M.M., 995 A.2d 164, 164 (D.C. 2010) (per curium) (limit paternity). on disestablishing legal parenthood of both partners to same-sex marriages is bearing fruit in marriages partners to same-sex of both legal parenthood but broadly, more functional parent-child relationships ciples that protect is verythis development In some states,uneven. protection for children the in other and is the couple married, if raised by couples exists only same-sex not applystates, the law does equally to same-sex and couples opposite-sex is exacerbated because families Difficulties for same-sex and their children. of the doctrinesmost discussed in this paper require litigation to determine as whether an adult will be recognized extent of that pro- a parent and the an a priori waytection, since the doctrines do not provide of establishing a 318 P.3d at 581 (Colo. App. 2013) (parental stat App. 2013) (Colo. 318 P.3d at 581  2017] de the unless biology legallaw bases on children parentage of non-marital applies. in Part II above, rule, discussed doctrine or a similar facto parent ͵ In most states, however, protection, if it is available, is more limited. is available, is if it states,more however, protection, In most married same-sex married couples); Harris, rebutting marital presumption), and 1326 n.192 (limits onrebutting presumption), and 1326 n.192 (limits marital disestablishing paternity). (limits on disestablishing(limits paternity). Paternity Law the extension of the marital presumption to same-sex married couples. In married the extension of the to same-sex marital presumption some states, trine); Harris, rebutting marital presumption), and 1326 n.192 (limits onrebutting presumption), and 1326 n.192 (limits marital disestablishing paternity). 38779-ckt_92-1 Sheet No. 48 Side A 03/01/2017 10:44:39 A 03/01/2017 48 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 48 Side B 03/01/2017 10:44:39 ,   Del- have ͹ǣͲ͸  [Vol 92:1 [Vol 140 144 Kelly S. v. 139 In re Brooke S.B. In note 13, at 1309 n.83 note 13, at 1309 n.83 note 13, at 1309 n.85 n.85 at 1309 note 13, 137 and Illinois, supra supra , , 143 , the Oklahoma court, the Oklahoma said, note 13, at 1312 n.113–16 and accompa- and n.113–16 1312 13, at note mits efforts to rebut the marital presumption marital efforts to rebut the mits 488 (Mass. 2001) (limits on disestablishing (limits 488 (Mass. 2001) supra supra , note 13, at 1309 n.84 (limits note 13, at 1309 n.84 on rebutting marital Reforming Paternity Law Reforming Paternity Law supra , Ramey v. Sutton 61 N.E.3d 488 (N.Y. 2016). Harris, Harris, E.3d 1133 (Mass. 2016) (applying holding out presumption to presumption out holding 2016) (applying E.3d 1133 (Mass. CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW Ȍ ͳȀͳͺȀʹͲͳ͹ Some states, such as Florida Some While on its face this language is gender-neutral, as is gender-neutral, as this language While on its face § 73 (McKinney 2016). An intermediate New York appellate court has imits paternity). on disestablishing imits see also See also Reforming Paternity Law  142 AW AW 138  .L  J.M.C., No. 04-06-00431-CV, 2007 WL 460691, at *3 (Tex. Ct. J.M.C.,App. 460691, No. Feb. 14, 04-06-00431-CV, 2007 WL . § (2016) (setting aside 742.18 paternity determinations).  EL Paternity of Cheryl, 746 N.E.2d 488, 746 of Cheryl, Paternity  .R TAT ȋ In re Reforming Paternity Law .S OM In re   LA  Stankevich v. Milliron, 882 N.W.2d 194, 196 (Mich. Ct. App. 2015) (married same-sex same-sex 2015) (married 194, 196 (Mich. Ct. App. Stankevich v. Milliron, 882 N.W.2d Chatterjee v. King,of parental status the (discussing (N.M. 2012) 290–91 283, P.3d 280 and Texas. F at 1309 n.86 (limits on rebutting marital presumption), and 1322 n.165 (limits on disestab- (limits and 1322 n.165 presumption), marital on rebutting at 1309 n.86 (limits at 1309 n.82 (limits on rebutting marital presumption), and 1322 n.161 (limits on disestab- (limits and 1322 n.161 presumption), marital on rebutting at 1309 n.82 (limits See See Id. Id.  141  For example, some cases extend protection for functional parents only some only parents functional for cases For example, extend protection A number of states protect functional parent-child relationships of op- relationships of of states protect A number functional parent-child See also 143. both 345–46 (Fla. 2013) (recognizing parental rights of 3d 320, D.M.T. v. T.M.H., 129 So. 137. also li (Okla 2015). Oklahoma 219 362 P.3d 217, 140. Harris, 134. (parental status same-sex Hunter v. Rose, of 975 N.E.2d 857, 857 (Mass. 2012) married 135. 136. 138. S.B. v. Elizabeth A.C.C., Brooke 142. 141. 139. N.Y. D  

 “[t]oday we“[t]oday . . . in a parent the rights acknowledge[] of a non-biological (limits on rebutting marital presumption), and 1322 n.162 (limits on disestablishing paternity). (limits 1322 n.162 and presumption), on rebutting marital (limits to adults in same-sex relationships.to adults They recent decisions include from andOklahoma New York. In 2007) (judgment based on admission of paternity without genetic testing cannot be set aside since set cannot be testing genetic of paternity without based on admission 2007) (judgment allegedmother’s lie is intrinsic, not extrinsic, fraud). 55, 61 (Fl. Dist. Ct. App.Russell v. Pasik, 178 So. 3d 2015) (refusing to recognize de facto parent biolo- based on couple because to same-sex not apply presumption would doctrine, dicta saying marital gy). held that the artificial insemination statute applied to the mother’s domestic partner. statute applied to the mother’s insemination held that the artificial 2016). App. Div. (N.Y. 720 714, 28 N.Y.S.3d M., Farah  82 ͵ couples); Partanen v. Gallagher, 59 N. couples); Partanen v. Gallagher, 59 lesbian couple); paternity); Della Corte v. Ramirez, 961 N.E.2d 601, 602 (Mass. App. Ct. 2012) (same). couples’ Harris, parentage); and to disestablish paternity. and to disestablish nying text (limits on rebutting marital presumption), and 1322 n.168 (limits on disestablishing paterni- on disestablishing n.168 (limits and 1322 on rebutting presumption), nying text (limits marital ty). same-sex unmarriedsame-sex partners); the New York Court of Appeals said York Court of Appeals the New is not biologically a person who that only protection related to a seek functional parent child has standing to “proves bywhere the person that he or she clear and convincing evidence biological parent has agreed with the of the child to andconceive raise the child as co-parents.” (limits on on (limits rebutting on disestablishing presumption), and 1322 n.164 (limits paternity). marital aware, same sex relationshipsame sex acted in who has parentis.” loco lishing paternity); the other one gestated child); because one provided the egg and only parties in lesbian relationship but presumption), and 1322 n.163 (l and 1322 n.163 presumption), lishing paternity) a practical it is likelymatter, to applyalmost always to same-sex couples, since the state has a statute that providing a husband is the legal father of a consent. his with his wife by insemination to artificial child born posite-sex couples, but do not signal protection for same-sex parent-childsame-sex but do not signal protection for posite-sex couples, marriage.relationships outside These states include North Dakota, 38779-ckt_92-1 Sheet No. 48 Side B 03/01/2017 10:44:39 B 03/01/2017 48 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 49 Side A 03/01/2017 10:44:39 83   ͹ǣͲ͸  By 2015, By 2015, when 149 Shineovich v. Shineovich, 214 Shineovich ). , 214 P.3d at 40.  , the Oklahoma , the Oklahoma Supreme . 45/7 P.A. 99-85, § 977 (eff. Jan. 1, Jan. § 977 (eff. 99-85, 45/7 . P.A. NN modifying Obergefell .A office of vital statistics to issue birth certifi- office of vital le, intended to remain together, together, remain to intended le, e statute does not apply, even if if apply, even not statute does e TAT .S also held that the constitution does not require that the constitution held that also the parentage of unmarried same-sex same-sex the parentage of unmarried OMP uple conceives a child by artificial in- artificial by a child uple conceives .C Ramey v. Sutton violated the state constitution by creating invalidated by Shineovich LL 148 Shineovich 750 I . (allowing a who signed a VAP to seek an 45/7(b-5) (2013) man TAT Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT .S  OMP . § 78B-15-607 (West 2016) (limiting rebuttal of andmarital presumption),  repealed by . § (2015), 109.243 .C  NN  A LL  TAT , 214 P.3d at 37–40. at 37–40. P.3d , 214 ȋ .S ODE C EV Madrone, 350 P.3d 495 (Or. Ct. App. 2015), 2015), App. Ct. (Or. 495 350 P.3d Madrone,    .R At the time of the 2009 opinion, same-sex couples could not marry not marry couples could same-sex the 2009 of opinion, At the time R TAH 145 In re Shineovich  Similarly, in 2015 the Oregon Court of Appeals reaffirmed a 2009 Oregon Court in 2015 the Similarly,  147 Finally, cases that protect some at 36. If an unmarried opposite-sex co If an unmarried semination using sperm from a donor, th from sperm using semination thethe couple, words in the that trial court used to describe petitioner “lived together as a coup respondent, and  146 Id. 146. 2015). (Okla. 219 217, 362 P.3d 147. 144. In re Scarlett N.E.3d 360, 371 (Ill. App. Ct. 2014) (refusing to recognize de facto Z.-D, 11 145. U 148. O 149.  

 WL 4476734, at *1 (D. Utah July 22, 2015) (ordering state cate recognizing as parent non-biological on basis of mother decision holding that a person who consents to the artificial insemination of to the artificial insemination who consents a person decision holding that partnerher unmarried same-sex be regarded as a legal parentmust of the child. order for genetic testing)  2017] biology on parentage base legal the parents when that stronglylaws tend to even if theyare opposite-sex, and that are not recognize func- do married, marriage. Utah protects outside parents same-sex for tional parenthood laws have but does not marriage within heterosexual parenthood functional claims outside functional parenthood that protect same-sex marriage or for couples. ͵ 2016). 2016). the second case was decided, same-sex couples could the second case was decided, same-sex and the courtmarry, held that the statute would not apply to children born to same-sex couples P.3d 29 (Or. Ct. App. 2009). App. Ct. 29 (Or. P.3d § 154 P.3d 808, 808 (Utah VAP); Jones v. Barlow, aside to set evidence 78B-15-307 (allowing genetic 2015 to recognize de facto parent doctrine); Roe v. Patton, No. 2:15-CV-00253-DB, 2007) (refusing a privilege, i.e., legal parentage by operation of law, that was not granted to adequate justification. without all citizens on equal terms or enter domestic partnerships in Oregon. The court reasoned that the partnerships in Oregon. The court or enter domestic to only applies which by terms statute, its state’s artificial insemination married opposite-sex couples, couples suggest that this protection may evaporate now that these couples evaporate now that these couples this protection may couples suggest that can legally marry. For example, the presumptionmarital apply to same-sex paterni- couples because about biological of its presumption ty. Court decision recognizing the de factoCourt decision recognizing saysone of the parent doctrine, that to mar- parties were legally be proven is that the unable elements that must ry. who could but chose not to marry.but chose who could It said, parent doctrine); 750 I 38779-ckt_92-1 Sheet No. 49 Side A 03/01/2017 10:44:39 A 03/01/2017 49 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 49 Side B 03/01/2017 10:44:39   152 ͹ǣͲ͸  [Vol 92:1 [Vol 151 The DNA Default and Its Discon- not apply to same-sex cou- . 2016). (forthcoming EV given the option to marry, could could marry, option to the given of the parties’ intent to have the L. R note 13, at 1336–38. their relationship and family but family and their relationship posite-sex couple that made that that couple made posite-sex ENT Katharine K. Baker, supra .-K , 150 see HI , 92 C , CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW C. Toward Solution a Statutory Ȍ ͳȀͳͺȀʹͲͳ͹ ate for courts to extend the statute to same-sex cou- to the statute extend courts to ate for same-sex    , 350 P.3d at 501. B. The Limitations of After-the-Fact Remedies of After-the-Fact B. The Limitations   Reforming Paternity Law ȋ    Harris, In re Madrone See   To remedy the problems with existing legal avenues for protecting the problems To remedy The marital presumption, the voluntary acknowledgment of paternity,acknowledgment voluntary the The marital presumption, This characteristic of these rules means This characteristic of these rules that they cer- cannot provide means and intended to have a child and to co-parent the child.” the co-parent and to a child have to and intended Accordingly, it would be would inappropri ples solely or both the basis of one on couple may be fully committed to be fully committed couple may choose not to marry, a same-sex couple, couple, a same-sex marry, not to choose choice. the same ples that make make that same choice—commitment without marriage. Because ORS Because without marriage. choice—commitment same make that op not apply to an would 109.243 also should the statute choice, it follows that nonbiological party assume a parental role a parental party assume nonbiological . . . . Just an opposite-sex as 150. 151. 152. to a solution, For another approach  

 functional parent-child relationships, statutoryfunctional parent-child relationships, are needed. solutions artificial insemination, and other assisted reproduction statutes can be ap- and other assisted reproduction artificial insemination, However, litigation. a child’s legal parent without determine many plied to discussed in this paper that of the legal rules be used to find that a may only parent is a legal parent can be invoked functional but non-biological is challenged and litigation follows. when the parental status of that person The de facto in hindsight parent and related rules require a court to examine legal parent and the claimed de factothe relationships and actions of the whether the doctrine’s elements are proven. Similarly,determine parent to holding- the invoking for the conditions whether determine only can a court out statute were satisfied the presumption of parentage and, if so, whether has been rebutted, based on the specifics of the case. And if the marital is not the may because the man set aside presumption be rebutted or a VAP biological father, litigation is again required to determine if the challenge should be barred because of child’s estoppel or the best interests. tainty about a child’s legal parentage unless and until litigation occurs. occurs. legal parentage unless and until litigation a child’s tainty about disruption, and the expense Relationships remain vulnerable to and diffi- mak- functional parents from some surely deters almost culty of litigation ing claims that theytheoreticallywin. could  84 ͵ These statutes should create simple, procedures for legal par- inexpensive tents: Establishing Modern Parenthood tents: Establishing 38779-ckt_92-1 Sheet No. 49 Side B 03/01/2017 10:44:39 B 03/01/2017 49 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 50 Side A 03/01/2017 10:44:39 . 85  CT  see EV A ͹ǣͲ͸ ), the ), the L. R  154 ENT .-K ARENTAGE HI .P NIF , 92 C  Where an adult other than the Where an other than the adult 153  Parents, Babies, and More Parents Parents, Babies, and note 122, at 487–88. supra , Ȍ ͳȀͳͺȀʹͲͳ͹ OBERGEFELL’S LEGAL IMPACT      §§ (2016). to -831.13 16-831.01 ȋ ODE    June Carbone & Naomi Cahn, Naomi & June Carbone See   156 Voluntary Acknowledgments 155 These proposals probably would probably be rejected in states that are be rejected in states that would probably probably These proposals If parentage is necessary,of a child is disputed, so that litigation the  156. D.C. C 155. Parentage Under the Uniform Act, paternity at the disclaiming a person can sign a document 153. partners, of thisproposal specifically for same-sex extended development For a more 154.  

 of discussion that state law permits a child to have only a child two parents of discussion permits that state law (forthcoming 2016). (forthcoming generally unfriendly to legally parenthood or to recognized functional same-sex families. many However, in the states that are amenable to recog- these changes should parenthood, and functional nizing same-sex families favorably,be received more since they facilitate the clarification of parent- child relationships at a time to each other. This when parties are not hostile greater stabilitywould provide as well as reduce and certainty to families law litigation. family §§ (2002). 301–305     2017] partnersand their ents to regis- parents, functional become are or will who ͵ law should at least law should create a simple,inexpensive that other procedure for person to relinquish his or her claim, the as Uniform Parentage Act per- mits. same time another man signs a VAP, and both can be filed at the same time. U same filed at the signs a VAP, and both can be another time man same man mayhave a claim to be the child’s for purposes parent (assuming legal law should clearly a de facto provide that parent is a legal parent, on an other legal parents. equal footing with statutorySeveral states have provi- effect; the Districtsions to this statutes are particularly com- of Columbia ter the partners as legal parents,ter the partners unmarried moth- a VAP allows an as much er and a man his legal paternity. to register Harris, plete. 38779-ckt_92-1 Sheet No. 50 Side A 03/01/2017 10:44:39 A 03/01/2017 50 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 50 Side B 03/01/2017 10:44:39 38779-ckt_92-1 Sheet No. 50 Side B 03/01/2017 10:44:39 B 03/01/2017 50 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 51 Side A 03/01/2017 10:44:39 Aug. This This , Id. 57 (W. 6 IMES infertility only FFICIIS O , 2016, 29, (Aug. The Krupas, N.Y. T E 5 , EWS ,D note 3. Between the two of of Between the two

ICERO supra 2 , CBS N , tner is thirty-five tner is thirty-five years of age . , JD, MPH They have spent over $50,000 have They 3 87 NTRODUCTION OHAPATRA ) 1/18/2017 7:19 PM 2584, 2594 (2015) (quoting C (2015) 2584, 2594 I. I EQUALITY M ELETE D OT Although New Jerseyof fifteen states that is one Obergefell v. Hodges Obergefell EEMA N 4 S O unprotected intercourse par if the female decision and the Affordable Care Act’sdecision and the nondiscrimi- (1) (D ., §17B:27–46.1x (West 2016). New (West ., §17B:27–46.1x Jersey law’s definition of NN 4 Lesbians Sue Over New Jersey Rules on Fertility Treatment Jersey Rules on Sue Over New 4 Lesbians ACRO ACRO note 2. M .A TAT supra S -Justice Kennedy, -Justice Kennedy, 1 OHAPATRA http://www.nytimes.com/2016/08/09/nyregion/lesbian-couple-sues-over-new-jersey-rules-for- Lesbian Couple Sues New Jersey Over Infertility Treatment Law Lesbian Couple Sues New Jersey Over Infertility Treatment Law ASSISTED ASSISTED MARRIAGE AND INEQUALITY REPRODUCTION , 4M Marianne and Erin Krupa, a married lesbian couple, have been trying have been trying a married lesbian couple, Krupa, Marianne and Erin ‘“Theofnext, first bondmarriage; society is children; andfami- the then ly.” 1. Obergefell v. Hodges, 135 S. Ct. 3. 6. 2. Megan Jula, 4. Jula, 5. N.J. Associate Professor of Law, Barry University of Law, NorthwesternDwayne O. Andreas School another person; conceive after two years of unprotected intercourse if the partner is female under thirty- five years of age, or one year of or older or one of the partners is considered sterile;medically or carry a pregnancy to live birth.” fertility-treatment.html. this research with a summer grant.this research with a summer Elmazahi, Haupt and Kati grateful to Megan Fuller, Abraham I am research assistance.for their wonderful results in the abnormal function of the reproductive system such that a person is not able to: not such that a person is function of the reproductive system abnormal results in the impregnate University School of Law, JD, Yale University, Leticia Diaz for supporting MPH. Thank you to Dean to have a baby via in vitro fertilization for three years.fertilization for to have a babyvia in vitro anticipates opposite-sex couples. In New Jersey’sor condition that statute infertility “means couples. In the disease anticipates opposite-sex 8, 2016 8, along with another lesbian couple, have brought suit against the New brought suit have Jer- along with another lesbian couple, sey Department of Banking and Insurance, based on the claim that the in- surance mandate discriminatestheir sexual orientation. against Article considers this timely case studyof the much-heralded in light Obergefell v. Hodges

Miller transl. 1913)). on infertility treatments. on infertility requires health insurance companies to requires health offer or cover infertility insurance companies coverage, the Krupas do not meet New Jersey’s definition of infertility. 6:51 AM), http://www.cbsnews.com/news/lesbian-couple-sues-new-jersey-over-infertility-treatment- them, they have sufferedthem, six miscarriages. law/. 38779-ckt_92-1 Sheet No. 51 Side A 03/01/2017 10:44:39 A 03/01/2017 51 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 51 Side B 03/01/2017 10:44:39 and [Vol 92:1 ART Part V suggests Part V suggests 8 NCREASED I decision as a backdrop decision as a backdrop Obergefell v. Hodges 9 Uterus Transplantation: Ethical and Gay and Lesbian Access to Assisted Reproduc- Gay and Lesbian Obergefell decision affects the law ofdecision infertili- Justice Kennedy declared that “marriage that declared Kennedy Justice PPORTUNITIES FOR ) 1/18/2017 7:19 PM CCEPTANCE O A . 331 (2005). 323, 396, 396 (2013). 396 (2013). 396, ELETE Obergefell EV D AND John A. Robertson, OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N THICS .L.R This article examinesThis article marriage the advent of how See O ES .E 7 Obergefell, ED Kavita Shah Arora & Valarie Blake, (1) (D W. R See ,J.M ACRO ACRO ASE BERGEFELL , 135 S. Ct. at 2589. 135 S. Ct. , M O , 55 C II. OHAPATRA Obergefell 88 4M Part II of this Article Part II of this Article examines the Although scholars and activists have long noted the lack of access to long noted the Although scholars and activists have 8. few years, such as IVF and surrogacy. In a This article it ART services will focus on bemay 7. 9. earliest and renown scholars advocating for procrea- has been one of the most John Robertson dren via assisted reproduction and surrogacy. assisted reproduction dren via Specifically, article this the wayspoints out that the of increased change in the realm for legal for the impetus access to ART. Part III paints a landscape of how infertility treatmentthe is provided in couples. In this for same-sex roadblocks United States, and the potential section, I discuss access to infertility and ART services for same-sex cou- ples. Part IV provides an overview of the opportunities and challenges for couples. for same-sex biological parenthood via surrogacy ty. By the law of infertility, I mean the I mean laws that require of infertility, insurance coverage ty. By the law reproductive technologies and other assisted treatments of infertility chil- to have biological same-sex couples are not able (“ART”). Because without ART, theydren with each other are functionally However, infertile. infertili- of definition use a medical and state statutes insurance companies couples for same-sex change in order conception must ty. I suggest that this couples enjoy.ART benefits that heterosexual to enjoythe same possible for LGBT individuals to have uterine transplants. This appealing be to a trans- most may who wishes to carry uterinewoman a pregnancy. At this current time, transplantation is experimental. a potential of actuallya possibility as this be rapid, and that may However, the state of technologyso is biological parenthood. Regulatory Challenges assisted reproduction in gay and lesbian couples, gay and lesbian in assisted reproduction reform efforts that be needed for the law tomay reform be updated to accommo- Part V date for same-sex access to these services. also that equali- suggests a States is often more in the United ART access not be enough, as ty may efforts sexual orientation. I suggest matter of one’s bank account than their in to this realm for activism open up ART beyond typically up- its white, per-middle-class to all those who patrons child. a biological wish to have equality may impact the rights of same-sex couples to have biological chil- have couples to same-sex of the rights impact equality may nation protections. protections. nation In tive liberty for LGBTQ couples. tive Technology is fundamental under the Constitution” the under is fundamental equal force with should “apply and couples.” to same-sex 38779-ckt_92-1 Sheet No. 51 Side B 03/01/2017 10:44:39 B 03/01/2017 51 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 52 Side A 03/01/2017 10:44:39 . 89 EV L.A. . 41 22, Equal Equal .L.R An esti- UST decision 11 INN 17 L. & J focus on the Kennedy also 12 , 100 M , ENDER Obergefell J. G For many people, the the people, For many , to notes that the right 16 ERKELEY ,30B Obergefell Obergefell v. Hodges’ does not create a right to biological biological does not create a right to These excerpts demonstrate the Supreme the Supreme These excerpts demonstrate ) 1/18/2017 7:19 PM 14 ELETE D Kennedy specifically acknowledges that “many Obergefell and the “New” Reproduction Procreative Pluralism OT 13 N O Obergefell (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE Professor Professor Kimberly rightly Mutcherson notes that ART Reviewing the Legal Issues that Affect Surrogacy for Same-Sex Couples, ACRO ACRO , 135 S. Ct. at 2600. (quoting Meyer, 135 S. Ct. at v. 2600. (quoting 390, Nebraska, 262 U.S. 399 (1923)). , 135 S. Ct. at 2600. at 2600. 135 S. Ct. , M 10 Although A. Obergefell ART Access for LGBT Couples v. Hodges and at 2600. 1, 6 (2016). 15 OHAPATRA Obergefell Id. Obergefell Id. Id. 2017] 4M By mentioning biological parenthood in the context of marriage equal- the in biological parenthood By mentioning In justifying the decision to grant marriage rights to gay couples, Jus- gay couples, rights to grant marriage to decision In justifying the ., Jul.–Aug. 2016, at 12. 16. 17. Jeang, Evie 10. Kimberly M. Mutcherson, 11. 12. 14. 15. Courtney Megan Cahill, 13. EADNOTES AW right to marry is incomplete without the right to have children. right to without the is incomplete right to marry Court’s contemplation of same-sex couplesCourt’s participating in all the same contemplation opposite-sex couples, principallyactivities and institutions as childrearing. same-sexhave bio- ity, the Supreme Court accepts that do couples can and logically via ART. Thus, the related children same-sex couples provide loving and nurturing homes to their children, same-sex couples loving and nurturing provide whether biological or adopted.” acknowledges the reality of gay parenthood, including gay “biological” gay including parenthood, acknowledges the reality of gay dispels false and parenthood, stereotypes about gayparents as somehow deviant. mated 30% of married same-sex couples have children, and are raising have children, and are couples same-sex mated 30% of married allows LGBT individuals to build biologically-related families. to build biologically-related individuals allows LGBT L the ACA’s nondiscrimination provision provide an impetus legal for an impetus provide provision ACA’s the nondiscrimination playing procreative ART is “an importantequality. the tool for leveling lesbian,field for gay, who (“LGBT”) transgender individuals bisexual, and for coital potential the that do not have units in familial seek to procreate reproduction.” states that marriage affords “the permanency to stability and important interests.”children’s best (2015). access to ART can be culled from be culled from access to ART can parenthood, Justice Kennedy mentions the right of gay and lesbian couples the right of gay Kennedyparenthood, Justice mentions to “marry, establish a home and bring up children.” marry “safeguards and thus children and families draws meaning from and education.” procreation, related rights of childrearing, parenthood rights of LGBT individuals. of LGBT parenthood rights in opinion the tice Kennedy, in majority H 38779-ckt_92-1 Sheet No. 52 Side A 03/01/2017 10:44:39 A 03/01/2017 52 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 52 Side B 03/01/2017 10:44:39 24 , 84 . 193, . 1185, Fertility [Vol 92:1 UST EV J Oberge- ruling “ex- .L.R THNIC ARV &E H Seema Mohapatra, Seema ACIAL ,129 Obergefell See .J.R 25 suggests that procreation suggests optimistically the ARV H 20 Professor Douglas NeJaimeProfessor Douglas 30 23 may bring constitutional parity bring constitutional parity may This article argues that, with this this This article argues that, with Although some fearAlthough that marriage 28 19 Obergefell now leads to the notion that parenthood now leads to the notion that parenthood Their state recognizes their marriage, but It also of establishes a constitutional norm ) 1/18/2017 7:19 PM 29 Obergefell Marriage Presumption Post-Obergefell and the Marital 26 22 ELETE D Many married same-sex couples turn to surroga- turn couples same-sex Many married OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW note 18, at 663. note N 18 O Obergefell Marriage Equality and the New Parenthood and Marriage Equality 27 supra (1) (D note 24, at 1190. note 15. note 16. note 17, at 12. ACRO ACRO M supra 21 supra supra supra . 663 (2016). 663, at 8–10. EV OHAPATRA Id. Id. Id. 90 4M .Id. I agree with the scholars who suggest that the who suggest I agree with the scholars Professor Courtney Cahill notes Cahill Courtney Professor decision maydecision of assisted broader acceptance lead to such reproduction, 26. Cahill, 27. 28. NeJaime, 29. biological parenthood of ART have made forms I have written elsewheredifferent about how 25 18. Cahn, June Carbone & Naomi 19. Jeang, 24. NeJaime, Douglas 20. Cahn, Carbone & 21. 22. Cahill, 23. Preservation for Medical Reasons and Reproductive Justice, Medical Reasons Preservation for the normative ideal at the expense of adoption, whether justified or not. justified ideal at the expense of adoption, whether the normative sexual orientation equality in marriage as the “related rights” as the “related in marriage sexual orientation equality of childrear- ing and procreation. deems family-based LGBT family-based equalitydeems as “particularly to the status significant there is a question about whether it affords them the same opportunity for it affords them there is a question about whether couples. ART as it does to opposite-sex infertile equality will not mean equalityequality parenthood, mean not in will cy to grow their or adoption families. fell as surrogacy. backdrop of marriage equality, there is a push towards assisted reproduc- the Krupas Couples like tion equality. are desperate to have children who are biologically related to them. is a constitutionally protected liberty right by the intercon- acknowledging “related rights” and procreation by calling them nectedness of marriage that compose whole.” a “unified UMKC L. R He numerous normalize suggests that marriage to potential equality has the surrogacy. including all families, types of ART for nearly children. 200,000 218–19 (2014). 1252–1253 (2016). 1252–1253 should accommodate same-sex couples. of assisted reproduction,which is central formation.” to same-sex family tends constitutional shelter to choices concerning. to choices shelter tends constitutional . relationships, .family between sexual and assisted reproduction. procreation, and childrearing.” 38779-ckt_92-1 Sheet No. 52 Side B 03/01/2017 10:44:39 B 03/01/2017 52 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 53 Side A 03/01/2017 10:44:39 . 91 .& UB CI . 151, EV , 114 P . J.L. S .L.R INN LB (Aug. 15, 2016, 2016, 15, (Aug. EWS ,10M ? ,79A LL Many health insur- A 31 ,U.S.N Access to ART is linked to 33 Building a Better Baby Business EPRODUCTION FOR EPRODUCTION R Infertility: From a Personal Public Health Infertility: From a Personal Public ) 1/18/2017 7:19 PM ELETE D A. Access to ART Services OT Bridging the Gap Between the “Have”Bridging the and the “Have-Nots”: The SSISTED N O Who Has the Right to Build a Family? The Focus on LGBT Rights Could a Family? The Focus Right to Build Has the Who note 34, at 151. III. A (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE supra ACRO ACRO Part III provides an overview of how assisted reproduction reproduction of how assisted an overview Part III provides M 30 35 Many hoped that the Affordable Care that the Affordable Manyhoped Act would add infertili- 32 . 494, 497 (1999). EP OHAPATRA Id. Id. Anne Fidler & Judith Bernstein, “A dichotomy exists between the ‘haves,’ with the financial those R 2017] 4M Medical infertility is quite common. According to data from the from Cen- According to data Medical infertilityis quite common. In light of the increased acceptance ofIn light of the increased gay lesbian parenthood, and ART services are costly,ART services and as a result—unless to in- one has access 34 . 41, 49–50 (2009). . 41, 31. Leonard, Kimberly 35. Mastroianni, 32. 33. 34. Marissa A. Mastroianni, 30. EALTH ECH ters for Disease Control, 12% of women who are of reproductive age are 12% of women who are of reproductive ters for Disease Control, infertile and 7.5% of all sexually experienced younger than age 45 men their lifetime. doctor during reported seeing a fertility such means.” there should be an effort to be more equitable for such couples in terms of equitable effort to be more be an couples in terms for such there should value statement here a not making am parenthood. I access to biological other types of over of biological parenthood about the preference such out of fairness, LGBT couples, as adoption. Instead, parenthood, such access to ART as above, should have the same as the Krupas discussed counterparts. their heterosexual ACA Prohibits Insurance Coverage Discrimination Based Upon Infertility Status ACA Prohibits Insurance Coverage means to undergo infertility treatment, and the ‘have-nots,’ treatment, means to undergo infertility those who lack surance coverage—primarilysurance the wealthy of to this avenue have access reproduction. Lead to More Options for Those Seeking to Have Biological Children to Have for Those Seeking Options Lead to More ty treatment to its essential health benefits. household income, household income, status, educationmarital level, race, ethnicity, and age. ance companies having a do not view child as medically necessary, and elective Instead, it is considered an treatment. infertility not cover thus do procedure. is provided in the United States and the potential roadblocks for same-sex same-sex roadblocks for the potential States and United the in is provided I discuss access couples. In this section, ART for same-sex couples. to 12:01 AM), http://www.usnews.com/news/articles/2016-08-15/same-sex-infertility-case-exposes-lack- of-access-to-reproductive-treatment?src=usn_tw. T 151 (2016); Debora Spar & Anna M. Harrington, Spar & Debora 151 (2016); H 38779-ckt_92-1 Sheet No. 53 Side A 03/01/2017 10:44:39 A 03/01/2017 53 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 53 Side B 03/01/2017 10:44:39 . NG E EW EW [Vol 92:1 , 347 N On average, one On average, one 39 Fertilization to $211,940 in 1992 to $211,940 . (2012). 994–95 994, ch, Working Paper No. 17668, 2011), ch, Paper No. 17668, 2011), Working This is a decrease since 2013 2013 since is a decrease This 24% covered in vitro fertilization, in vitro fertilization, 24% covered CON 36 Therefore, many couples will need E 40 The Effects of Insurance Mandates on Choices and Utilization of Infertility Treatments: the Effects of EALTH ) 1/18/2017 7:19 PM ,21H note 37, at 1009. note ELETE D 44 OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N supra O note 34, at 158. . Insurance Coverage and Outcomes of In Vitro of Insurance Coverage and Outcomes (1) (D In fact, there is only about a 25%–30% success rate for success for rate In fact, there is only a 25%–30% about note 31. supra 37 ACRO ACRO , 8 (Nat’l BureauResear of Econ. Thus, insurance coverage of ART allows greater access to Thus, insurance coverage of ART 58. M supra – 65 (2002) 42 – Thus, ART services are usually the wealthy utilized for that can at 994. at 157 OHAPATRA 41 Therefore, multiple cycles are often performed. Costs could range cycles Therefore, Costs could range multiple often performed. are Tarun Jain et al., Marianne P. Bitler & Lucie Schmidt, Id. Id. Barton H. Hamilton & Brian McManus, Hamilton & McManus, . 661, 664 661, . 92 4M The lack of The has forced coverage or mort- go into debt to couples many ART can be cycles when covered, unlimited and even very expensive, 38 It follows to offer or companies that in the states that require insurance 39. Mastroianni, 42. 41. 38. 40. 36. Leonard, 37. 43. 44. Of course, there is the risk that these states stop offering ART coveragemay if the population ED 43 Insurance Mandates http://www.nber.org/papers/w17668.pdf. IVF. IVF cycle in the United States can cost with and $15,000 between $10,000 only live birth success rate. a 25–30% gage their homes in order to access ART. “Among employers with 500 or 500 or with employers to access homes in order gage their ART. “Among workers,more last year only54% by evaluation provided covered an a therapy and 32% covered drug specialist, according to Mercer consultingaccording group.” when coverage reached its reached its when coverage peak. to undergo several IVF cycles to achieve their desired outcome. The cost to outcome. IVF cyclesto undergo several to achieve their desired $44,000 from IVF ranged through conceive a child dollars. for up to $3,000 per cycle for hormone therapy to between $10,000 and $10,000 between therapy to per cycle for hormone to $3,000 for up per cycle tubal surgery. for ART that involves $15,000 cover ART, we should ensure that gay and lesbian have the same couples access as straight couples. it. Outcomes in Infertility Treatment Markets who is eligible to utilize ART increases. Because there is no requirement thatART is covered under the ACA, that is always a risk. J. M afford to pay out of pocket for the services. However, access to insurance for the services. However, access to insurance pocket out of afford to pay does increase access to ART. One studynoted in states requiring that insur- ance cover IVF, the rate of utilization was 277% of the rate when there was no coverage. are not covered. 38779-ckt_92-1 Sheet No. 53 Side B 03/01/2017 10:44:39 B 03/01/2017 53 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 54 Side A 03/01/2017 10:44:39 . 93 & .§ HIO TAT TATE TATE . §15- . S TAT NS EALTH .S OF . ., I .H EN & L. 113 83, NN AL ONF .G A C L ONN ’ ODE ENDER AT .C ,N D §33-25A-2 (West 2016). §33-25A-2 .J.G EO Further, states do not Further, states do ODE 48 .C A ,17G .N.J. 2016); (West § 33-31-102 S (West 2016); M 2016); (West NN §§ 27-18-30, 27-19-23, 27-20-20, 27-41-33 27-20-20, 27-19-23, §§ 27-18-30, A § 10119.6 (West 2016); C 2016); (West § 10119.6 AWS ODE (McKinney 2016); O 4303(s) §§ 3221(k)(6), ODE .L note 29, at 206. note 29, at 206. .C AW .C EN NS . C 2016); (West 23-86-118 23-85-137, §§ ONT .L ) 1/18/2017 7:19 PM supra .I NS NN , . 176B 176A 2016), § 8K (West § 47H 2016), 175, (West ch. A AL . §431:10A-116.5(a) ELETE NN Of the fifteen states, two of them—California two of them—California Of the fifteen states, D A ODE TAT OT 46 .C . 2016); W. 1366.005 (West art. V N .S However, according to the American Society according to the However, of O AWS AWS RK NN EV Assisted Reproductive Technologies Assisted Reproductive A A .L 45 49 .R (1) (D EN ASSISTED REPRODUCTIONASSISTED AND MARRIAGE note 31. note 31. ODE AW B. Services of Infertility Coverage Insurance .G .C ACRO ACRO Fertility Preservation See also ASS M NS supra supra .I (June 1, 2014), http://www.ncsl.org/issues-research/health/insurance-coverage-for- . 2016); R.I. (West § 1751.01 G Theynot require insurers to actually do or employers to cover § 1374.55 (West 2016); C 2016); § 1374.55 (West EX 51 NN 47 at 207. at 207. A OHAPATRA ODE State Laws Related to Insurance Coverage for Infertility Treatment State Laws Related to Insurance Id. Id. Of these states, onlyConnecticut, Illinois, Maryland, Massachusetts, C ODE 2017] 4M Currently, fifteen states require insurers in fifteen states require Currently, offer or their state to either Because these are state by often incon- are laws state issues, these 50 . N.Y. 2016); (West § 17B:27-46.1x I 48. Leonard, 45. 46. Leonard, 47. Jillian Casey et al., 49. 50. Mohapatra, .C 51. NN EV EGISLATURES AFETY cover ART services. cover ART § 4J (West 2016), 176G § 4 (West 2016); M 4 (West 2016), 176G § § 4J (West (2016). Montana, New Jersey, West Virginia actually Ohio, and require insurers to cover IVF. Reproductive Medicine, Arkansas, Connecticut, Hawaii, Illinois, Maryland, Hawaii, Illinois, Connecticut, Medicine, Arkansas, Reproductive Massachusetts, the only Rhode Island are New Jersey, and that man- ones it, include that insurers offer plans that rest require only date coverage; the decide to it upa loophole that leaves those whether to offer to employers plans to their employees. S offer such coverage to low-income people in their Medicaid programs. Medicaid programs. people in their to low-income offer such coverage cou- Advocates of expanding access same-sex unfair to maintain that is it is critical to biologically infertility,demonstrate and it ples to force them contracts to people who under insurance building that we deliver family need different things. R L A 38a-536 (West 2016); H 38a-536 (West infertility-laws.aspx; 810 (West 2016); M 810 (West and Texas—only require an insurer to let employers know that coverage is know and Texas—only require an insurer to let employers available. sistent in terms of what type of infertility services are covered, whether age of cover- there is a maximum and whether marital status is an issue, age. purchase such policies. In the public sector, the Department of In the public sector, the Department purchase such policies. Defense of for active dutycovers in vitro fertilization but the Department members, Veterans Affairs former service bans it even for sustainedwho members infertile. them rendered that injuries during battle (West 2016); T 2016); (West 38779-ckt_92-1 Sheet No. 54 Side A 03/01/2017 10:44:39 A 03/01/2017 54 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 54 Side B 03/01/2017 10:44:39 , . 58 In EGS R 53 [Vol 92:1 EMINARS ODE .C ,31S ASS Of course, the ACA Under the ACA, dis- Additionally, the De- Additionally, the 55 nce coverage required under 54 This does not apply in does not apply This 57 52 The ACA’s statutory language The ACA’s statutory language 56 The Affordable Care Act’s Impact on Fertility note 29, at 207. supra , ) 1/18/2017 7:19 PM 45 C.F.R. § 156.200(e) (2016). 45 C.F.R. § 156.200(e) ELETE 654 (2013) (minimum insura 654 (2013) (minimum D OT How Obamacare Will Impact Reproductive Health How Obamacare Will CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW services). decision at least allows decision at least allows same-sex married couples N O The Affordable Care Act: The Early Implications for Fertility MedicineAffordable C. The ACA and Nondiscrimination note 34, at 176–77. 1224, 1225 (2014). 1224, TERILITY of six months if the female is over the age of 35.” is over the age of the female if of six months 211 M (1) (D Fertility Preservation infertility &S supra ACRO ACRO M TERILITY Obergefell &S . 189, 194 (2013). Kenan Omurtag & G. David Adamson, For example, Massachusetts law defines infertility as “the condition of an individual who who For of an individual example, Massachusetts law as “the condition defines infertility Mohapatra, ERTILITY ED OHAPATRA Paul R. Brezina et al., Id. Kate Devine et al., Id. See does not cover .M 94 4M Many of these state statutes do not actually do state statutes of these Many infertility.define those In This is a problem because the Affordable Care Act because the Affordable Care requires nondis- This is a problem ERTILITY , 99 F , 57. 52. 58. 53. 54. (2016); 45 C.F.R. § 156.125(b) 55. Mastroianni, 56. ACA EPROD tility coverage as an essential health benefit in any subsequent regulation. ried, and the to fit into this category now. Additionally,requirestates some specific diagnosis bya physician the cause as infertility. of the of a condition does not actually require ART coverage. does not actually require 101 F does not mention infertility treatment coverage or its effect upon the fifteen coverage or its effect upon the treatment infertility does not mention states that have enacted state insurance mandates. each of these scenarios, gayeach of these scenarios, and lesbian couples would have a more diffi- even in those heterosexual couples. Thus, than proving infertility cult time few where insurance companiesstates have to cover ART, the definitions of infertility often anticipate infertility—not infertilitymedical due to being against discriminates this inequity Arguably, in a same-sex relationship. same-sex couples. crimination exists if insurers differentiate among individuals in designing among individuals in exists if insurers differentiate crimination insurance coverage. private health and implementing partment of Health and Human Services (“DHHS”) has not included infer- of Health and Human Services partment is unable to conceive or produce conception during a period of one year if the female is period of one year if the female 35 or age a is unable to conceive or produce conception during a period or during younger R terms of same-sex couples, because they same-sex couples, of terms without ART. cannot conceive Some states’ mar- be that the individual requirements include definitions the Each state has the authority to create its own essential benefits under the its own essential benefits under the Each state has the authority to create ACA. DHHS gave states the authoritytheir own essential health to create 37.03 (LexisNexis 2016). that do—California, Connecticut, Illinois, Massachusetts, New Jersey, Illinois, Massachusetts, New Connecticut, that do—California, to con- the inability include of the definitions Rhode Island—all York, and year relations. of sexual a ceive after or more crimination in the provision of health care services. of health in the provision crimination Care 38779-ckt_92-1 Sheet No. 54 Side B 03/01/2017 10:44:39 B 03/01/2017 54 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 55 Side A 03/01/2017 10:44:39 95 (granting OVERAGE .C NS J. I ESTLAW ,26W 45 C.F.R. § 156.100 (2015) § 156.100 45 C.F.R. Essential Health Benefits: List of The , genetic information, marital sta- marital information, genetic or sexual orientation. Nothing in orientation. Nothing or sexual ovided without discrimination on discrimination without ovided VERSIGHT see generally .O sability, domestic partner status, gen- partner status, domestic sability, ART services as heterosexualART services as couples In order to be clear that infertility cov- NS I 3 (2015), 62 ) 1/18/2017 7:19 PM AND §1374.55 (b) (West 2014). (West (b) §1374.55 . 63 ELETE D NFO ODE I OT C N O note 34, at 153–54. AFETY (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE Adobe-Acrobat-Pro.pdf.; ONSUMER &S C supra ACRO ACRO M FOR . EALTH TR .H This example highlights the ways that a gay married couple may couple married may a gay that highlights the ways This example C §1374.55 (g). §1374.55 AL 61 Therefore, the states with insurance mandates regarding infertility infertility regarding insurance mandates the states with Therefore, Thus, this is seen by many as a lost opportunity. Instead of increas- is seen by Thus, this as a lost opportunity. many OHAPATRA Lesbians Challenge New Jersey’s Infertility Definition New Jersey’s Infertility Lesbians Challenge See Id. 59 60 2017] 4M Even well-meaning efforts to even the playing efforts to even the Even well-meaning field in states such as a couple, they that, as a same-sex the argument The Krupas are making the basis of age, ancestry, color, di color, ancestry, age, of the basis identity, gender expression, gender der, race, tus, national origin, religion, sex, this subdivision shall be construed to interferewith the clinical judgment of aand surgeon. physician shall be offered and, if purchased, pr purchased, and, if shall be offered 60. Mastroianni, 61. 62. C 59. 63. https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/largest-smgroup- States the ability to select their own plan). benchmark products-4-8-15-508d-pdf- treatments benefit adopted essential have that standards such incorporated laws. erage bemust couples, California amended this law provided to same-sex states that coverage for the It provision. to include an antidiscrimination treatment of infertility (2016) (citing Krupa et al. v. Badolato, No. 16-cv-4637 2016 WL 4250861, at *1 (D.N.J. Aug. 1, at *1 4250861, WL 2016 No. 16-cv-4637 (2016) (citing Krupa et al. v. Badolato, 2016)). benefit standards based upon typical insurance coverage plans plans coverage insurance within the typical upon based standards benefit state. ing access to ing access the ACA just ART, of access that the same level maintained even if infertility That said, to the ACA. existed prior it was covered, couples without an explicit lesbian or apply to gay would not necessarily effect. statement to that Health insurance covers medical ailments, and to define infertilityinsurers could continue in ways that do not apply to LGBT individuals. in- of ART problem the solve do not completely California and Maryland equity. are requesting the same access to receive. Largest Three Small Group Products by State be treated differently couple under state insur- a heterosexual married than ance laws. Two states recently to their insurance laws toamendments made (1) the pres- “either infertilityprevent discrimination; California defines as by recognized physician and condition a licensed ence of a demonstrated surgeon as a of infertility,cause inability to conceive a pregnancy or (2) the or to carrya live birth after a year to a pregnancy or of regular sexualmore relations without contraception.” 38779-ckt_92-1 Sheet No. 55 Side A 03/01/2017 10:44:39 A 03/01/2017 55 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 55 Side B 03/01/2017 10:44:39 , The IMES 67 [Vol 92:1 Her Unit- ,N.Y.T “relational 66 The Maryland “insurers, non- 64 UnitedHealthcare 68 pay for expensive donor insemination for pay for expensive donor insemination for ) 1/18/2017 7:19 PM . §15-810 (West 2016). (West . §15-810 NS ELETE ., I D -meaning change, it still appears that a licensed that still appears it -meaning change, OT NN CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N Should Same-Sex Couples Receive Fertility Benefits? Should A O ODE (1) (D .C JAMA Forum: A Same-Sex Mandate in Mary- Infertility Health Insurance D (May 20, 2015), https://newsatjama.jama.com/2015/05/20/jama-forum-a-same- ACRO ACRO M http://well.blogs.nytimes.com/2015/11/02/should-same-sex-couples-receive-fertility- AMA J It does not seem fair to use the clinical definition of infertility fair to use the clinical definition of does not seem It D. Definitions of Infertility in Private Insurance Contracts D. Definitions of Infertility 69 At the same time, it also amended its outdated statute to ensure that male medical infertili- that medical outdated statute to ensure male its time, it also amended At the same OHAPATRA Id. Id. Id. Id. EWS AT EWS 65 96 4M Although this is a well this Although MarylandLike California, its state amended and law requiring ART It is not just a of matter state mandates insurance coverage therewhere ,N 67. 68. 69. 65. 64. Eli Y. Adashi, 66. Stephanie Fairyington, benefits/?_r=0. physician must recognize that being part of a same-sex couple is the “con- physician a same-sex part of being recognize that must dition” ex- cause of the been far more have would the infertility. It that is couples are, by per that same-sex definition, noting a provision plicit to add andse infertile access tohave would thus infertility coverage. is an equality concern. Private insurers definitions of infertility also have lesbian or gay couples to gain access to ART Services. not allow that do Jill Soller-MihlekFor example, sued UnitedHealthcare because couldshe not meet itsinfertility definition of because she was a lesbian. ty was acknowledged. M sex-infertility-health-insurance-mandate-in-maryland/. Nov. 2, 2015, 2015, 2, Nov. land? pregnancy after 12 months of unprotected heterosexual after 12 pregnancy intercourse.” months actually that theypolicy tacitly acknowledged lesbian couples and deemed use must sperm donors, and must before they definition of infertility. meet the 12 months infertility. vented] fromvented] conditions of coverage for specified requiring specified same- the of to an individual who is married infertility for a patient benefits sex.” IVF coverage to accommodateIVF coverage to lesbian couples. same-sex explicit than California’s.more specifies that It provision is plans, and health profit health service maintenance [are pre- organizations edHealthcare achieve insurance policyinfertility to defined as an “inability stated that its policy was based on ASRM’s clinical disease definition of in the case of same-sex couples. Julien Murphy uses the term Murphy couples.uses the term Julien in the case of same-sex infertility” “because to describe lesbianthere is no biological relationships 38779-ckt_92-1 Sheet No. 55 Side B 03/01/2017 10:44:39 B 03/01/2017 55 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 56 Side A 03/01/2017 10:44:39 . J 97 EMINIST F ERKELEY ESTATIONAL EW EW G OUPLES Stateless Ba- (N 30 B C , in It is important It is important , EX 71 -S DVANCES A & L. 781, the In (2014). 788 AME Y S ’ OL Seema Mohapatra, A Race to the Bottom? The Need for EMINIST .P F (Sayantani Das DasGupta & Shamita Commercial gestational sur- OC 73 S NDIA I ECENT :R ENDER ERVICES FOR S ; Seema Mohapatra, Count as Infertile Couples?: Antilesbian Discrimination Discrimination Antilesbian Count as Infertile Couples?: L. 191 (2012); ) 1/18/2017 7:19 PM IOETHICS .U.J.G NDUSTRY IN Achieving Justice in the International Surro- Reproductive B I M Achieving Reproductive Justice in the International Surroga- Achieving Reproductive Justice ELETE ENT D R ,22A EALTH Lesbians OT H URROGACY N L. 191 (2012) O S MBODYING E Should Embryonic Personhood: Implications for Assisted Reproductive Technology for Assisted Reproductive Embryonic Personhood: Implications (1) (D in , ASSISTED REPRODUCTIONASSISTED AND MARRIAGE OMB FOR , . 2016). (West § 17B:27-46.1x(a) EALTH NNALS A Bioethical Analysis of International Commercial Surrogacy Seema Mohapatra,Seema W H : NN ACRO ACRO ; Seema ; Seema Mohapatra, A ) M . Murphy 70 CCESS TO S. A NNALS TAT 2012 ,21A In this short Part IV, I aim to provide a snapshot of what access a snapshot of what to provide In this short Part IV, I aim ( ) 1999). eds., Purdy, M. Laura Donchin & (Anne 111–12 103, 72 ee generally IV. OHAPATRA ,21A S Julien 412, . Adoption Scams 2017] 4M I have written extensively about surrogacy,I have written extensively domestic and interna- both The Krupa case is a narrowThe Krupa one. It couple who ac- involves a lesbian This change, putting LGBT still does not go far enough in however, L L & 72. 71. N.J. S 73. Lauren B. Paulk, 70. ’ NT URROGACY ANDTHE ERSPECTIVES I in Assisted Reproduction the acceptance of gay there marriage, will be great ofacceptance biological gay would be ideal if the It couples, via ART and surrogacy. parenthood for the marriage grassroots efforts effort success wouldequality that got coa- lesce the effort to have greater access to ART foraround all people. tionally. gacy Market tually is medically infertile. Theytheir assertion that are correct in they are the defini- individuals because other infertile differently from being treated like them— women Jersey in New tion of infertility include does not medically who are in lesbian relationships infertile. women International Regulation of the Rapidly Growing Global Surrogacy Market? Global Surrogacy Growing of the Rapidly Regulation International Dasgupta eds., 2013). to surrogacy looks like for a gay married couple in the United States. Cur- the couple in a gay married looks like for to surrogacy use a surrogate, must biological child couples wishing to have a rently, gay since neither male partner can carry a child. S P way medical of the advantage without together conceive to women for two intervention.” to change the language in state insurance statutes to ensure that state insurance statutes in language medicallyto change the infertile of sexual preference. receive access to ART regardless individuals statute should be amended the The language of the way Maryland’s was— lan- they that ART coverage should ensure and all states requiring remove based onguage that differentiates orientation. sexual The realitywith heterosexual couples. footing couples on equal remains gay that access to ART remain will This does harm mostly of pocket. out to reproduce “naturally.” for them is impossible couples because it With in International Human Rights Law Human Rights in International cy Market future, artificial wombs change may this. bies 38779-ckt_92-1 Sheet No. 56 Side A 03/01/2017 10:44:39 A 03/01/2017 56 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 56 Side B 03/01/2017 10:44:39 , L.A. ,LLC, [Vol 92:1 76 OLUTIONS S However, this 83 (J.D. S. El & Rainhorn Although this is a Although this AMILY F 81 Surrogacy laws vary In such arrangements, arrangements, In such 77 ARKET 74 M REATIVE . 42, 42 (2016). 42 (2016). 42, . ,C and their laws made no dis- ANNIBAL DVOC .A Others view surrogacy as a form of as a form Others view surrogacy :AC AM . 32 (2015). 25, 79 EV ODY B Obergefell, L. R ) 1/18/2017 7:19 PM L ’ , 38 SPG F pshire and Maine had passed comprehensive UMAN NT ELETE Some states outright ban surrogacycrimi- and states outright Some H .I D some claim that these states ignore the statutes’ A gay couple can use a donor egg and sperm sperm and a donor egg can use A gay couple 78 HI These are California, Connecticut, Delaware,These are California, Connecticut, OT . 42, states 43–45 (2016) (green-light are states where surrogacy is CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N 75 O 84 Adopting an International Convention on Surrogacy–A Lesson from Lesson from on Surrogacy–A Convention Adopting an International .U.C States of Confusion: Regulation of Surrogacy in the United of Surrogacy Regulation States of Confusion: DVOC New Ham Parentage Rights for Same-Sex Couples: State-by-State Gestational Surro- Parentage Rights for OY Ask The Expert (1) (D .A 80 note 73, at 788. Reviewing the Legal Issues that Affect Surrogacy for Same-Sex Couples AM ,13L ACRO ACRO Obergefell, M supra SPG F Post- 82 OMMODIFICATION OF THE ,38 OHAPATRA Id. Id. Id. Diane S. Hinson, Id. Gestational Surrogacy Law Across The United States Gestational Surrogacy C in 98 4M Surrogacy statutes in some states specifically only apply to married Although surrogacy arrangements Unit- up to $100,000 in the can cost Although surrogacy arrangements There are only nine surrogacy-friendly States for states in the United , , July–Aug. 2016, at, July–Aug. 12. 78. 79. 80. 81. 83. Diane S. Hinson, 75. 76. Paulk, 77. Evie Jeang, 74. Mohapatra, Seema 82. Seema Mohapatra, 84. AW couples. ed States, the 2008. 2004 to cost has risen 89% from nalize those entering into agreements. nalize those entering States surrogacy even before legislation commentators heterosexual couples. Some same-sex and tinction between have noted that through gesta- families couples building “married same-sex tional surrogacy parents’ a parentage order and have both obtain can now birth certificate in 32 green-light states.” on the names majorityU.S. states, there is a long of wayto have true paritybe- to go tween same-sex and heterosexual couples. is not real assurance that surrogacy is allowed. gacy Laws widely state-to-state. from from one of the partners outside the body to form an embryo via IVF which via IVF an embryo the bodyoutside to form one of the partners from into the non-genetically related surrogate. be implanted will then 2015). eds., Boudamoussi there is a contractualthere is a and the intended between the surrogate relationship carryparents, where is paid to the surrogate with whom she has the child relationship. no genetic L adoption, rather than allowing the intended parents to be on the birth certif- allowing the intended parents adoption, rather than icate immediately. Intercountry Adoption permitted, pre-birthare granted orders the state, and both parents throughout will be named permitted, on the birth certificate). rogacy common is the most of surrogacy. method gay couples. married http://www.creativefamilyconnections.com/us-surrogacy-law-map/married-same-sex-couples (last language referring to the infertility of the intended mother. 38779-ckt_92-1 Sheet No. 56 Side B 03/01/2017 10:44:39 B 03/01/2017 56 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 57 Side A 03/01/2017 10:44:39 99 In 85 The bill The bill 91 90 There are twenty-threeThere are where states 87 ) 1/18/2017 7:19 PM 133, 143–44 (2015). 143–44 133, note 84, at 45. ELETE Y ’ D Michigan law not only prohibits surrogacy onlyMichigan law not con- OL OT supra N , 89 O Additionally, in these states, both same-sex parents L. & P 86 (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE A. Surrogacy Acceptance Post-Obergefell note 24, at 1253. Access and Exploitation: Can Gay Men and Feminists Agree on Surrogacy Agree on Surrogacy and Feminists Can Gay Men Access and Exploitation: In New along York, an openly senator—who state gay ACRO ACRO Additionally, intended parents could include same-sex same-sex intended parents couldAdditionally, include OVERTY M supra Ask The Expert 92 .J.P There are nineteen “hostile jurisdictions” nineteen “hostile There are to surrogacy generally, EO (these include Alabama, Arkansas, Colorado, Florida, Georgia, Hawaii, Arkansas, Illinois, Kansas, (these include Alabama, Colorado, Florida, 88 OHAPATRA Id. Id. Id. Id. Id. 23 G , 2017] 4M For gay couples who wish their only to seek biological parenthood, open become more to to continue Many expect the law of surrogacy Obergefell. 90. Cory, Connor 89. Hinson, 91. NeJaime, 92. 85. 86. 87. 88. with Mississippi specifically discriminating against the sexual orientation against with Mississippi specifically discriminating of the intended parents. Policy? Kentucky, Massachusetts, North Dakota, New Mexi- Maryland, Minnesota, Missouri, North Carolina, co, Ohio, Pennsylvania, South Carolina, South Dakota, Wisconsin,Vermont, and West Virginia). judgments.” current option is surrogacy. Similarly, if neither woman in a lesbian couple couple if neither woman in a lesbian Similarly, current option is surrogacy. can successfullyCiti- carry may them. a child, surrogacy option for be an of the zens living in one many states where commercial surrogacy is not surrogacy-friendly to travel to a more available will have for such an state also expensive. Surrogacy but This is not only inconvenient, arrangement. are upper who lesbian couples is really and to those gay available only class. This means that poorer and gaymiddle-class and lesbian couples will prospect of international inconvenient and either have to seek the uncertain child at all. surrogacy,not be a parent to a biological or post- tracts, but criminalizes attempts at such contracts. attempts tracts, but criminalizes making visited Sept. 4, 2016) (Creative Family an online Solutions, LLC that publishes is a surrogacy law firm “surrogacy map” the relative surrogacy stance towards demonstrate visually to which uses color coding taken by different states). Maine, New Hampshire, New Maine, Texas. Island, and Rhode Oregon, Nevada, Hampshire, these states, are granted and pre-birth orders is permitted, surrogacy the throughout state. surrogacy is permitted but where it is not clear that pre-birth orders are where it is but orders not clear that pre-birth surrogacypermitted is allowed. would have allowed “compensated gestational surrogacy and would have gestational surrogacy and would have would have allowed “compensated bywhich ‘intended parents’furnished mechanisms could secure parentage will be named on the birth certificate. on the birth will be named with his partner had a baby surrogacy via in California—unsuccessfully to lift New attempted York State’s commercial-surrogacy ban. 38779-ckt_92-1 Sheet No. 57 Side A 03/01/2017 10:44:39 A 03/01/2017 57 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 57 Side B 03/01/2017 10:44:39 [Vol 92:1 New Jer- Professor 98 ,it may not not may ,it 93 . infertility Obergefell Therefore, same-sex couples couples Therefore, same-sex QUALITY 95 to include a to include ”E not able to . . . conceive after two the abnormal function of the repro- the abnormal note 83. ) 1/18/2017 7:19 PM infertility supra NFERTILITY , ELETE “I D I have argued elsewhere that the hodgepodge of that the hodgepodge of have argued elsewhere I OT V. CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N 96 O Although this bill did not pass, we can expect similar expect similar not pass, we can did this bill Although B. vs. Domestic Surrogacy International (1) (D 94 . 2016) (West § 17B:27-46.1x(a) In light of changes occurring post- note 17, at 12. NN ACRO ACRO States of Confusion 97 A M . supra TAT S . OHAPATRA Id. Id. Id 100 4M Gay a States often prefer entering into couples in the United married With the overview provided thus far about the push towards ART With the overview provided thus disease or condition that results in that results disease or condition that a person is system such ductive of 35 years under is partner if the female years of unprotected intercourse 93. 94. 95. Jeang, 97. Mohapatra, 98. N.J. 96. surrogacy arrangement within thesurrogacy arrangement United States because many foreign marriage. same-sex countries still prohibit dates that insurance plans operating in the state cover medically in dates that insurance plans operating necessary and treatment of expenses incurred in the diagnosis sider what legal changes would ensure equality. New Jersey’s statute man- Douglas NeJaime notes that,NeJaime Douglas effort passed, male had this same-sex couples, also engage in assisted couples who and heterosexual single parents, repro- availabil- wider benefited from “would have including surrogacy, duction, ity and recognition. sey’s insurance mandate defines efforts to continue in New York and other states that do not recognize ges- that do not recognize York and other states continue in New efforts to tational surrogacy. must paymust price for the same a higher that would cost less thanarrangement half of the price abroad. spouses, unmarried intimate partners, and single individuals. and single partners, intimate unmarried spouses, equality couples, same-sex for this section revisits the Krupa case to con- surrogacy in the United laws States poses a real in- for potential problem tended parents. be long before a federal surrogacy law is enacted. The issue of is cost an issue that be addressed. still Can must we see future a where one can pur- chase literal fertility including access to surrogacy or a surroga- insurance, with the now, but We are not at that point right benefit? cy employment growing acceptance of surrogacy, this may be coming. 38779-ckt_92-1 Sheet No. 57 Side B 03/01/2017 10:44:39 B 03/01/2017 57 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 58 Side A 03/01/2017 10:44:39 . CI 101 105 ASE . J.L. S ,55C INN ,12M note 61. supra , ) 1/18/2017 7:19 PM The Krupas have argued that the language is The Krupas have argued that the language ELETE tected intercourse if the female partner is 35 is partner female if the intercourse tected 103 D OT N 99 O Gay and Lesbian Access to Assisted Reproductive Technology Access to Assisted Gay and Lesbian (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE note 31. It’s an Art Not A Science: State-Mandated Insurance Coverage of Assisted State-Mandated A Science: Insurance It’s an Art Not 104 The Krupas claim that relief from the mandate definitionThe Krupas claim ACRO ACRO New Jersey mandates insurance coverage for infertility M 100 supra 102 . 323, 331 (2005). . 101 EV OHAPATRA Lesbians Challenge New Jersey’s Infertility Definition Id. Id. Id. . 651, 667 (2011). . 651, .L.R 2017] 4M Compared have to couples, a lesbian couple would with opposite-sex The American Society for Reproductive Medicine (“ASRM”) defines The Krupas’ Dis- complaint—filed for the District Court in the U.S. It does not make sense forIt does not companies insurance to onlyso- cover years of age or older. or years of age age, or one year of unpro of year one or age, ES 99. ECH 100. 101. 103. Leonard, 102. Valarie Blake, 104. 105. John A. Robertson, same logic causes us the reject the exceptionalism for same logic causes us the reject the exceptionalism LGBT individuals. discriminatory, as unprotected sex does not lead naturally for to conception as unprotected discriminatory, same-sex couples. treatments; however, they wording in its law asks couples to demonstrate year sex for a or having unprotected have tried to conceive naturally by age. on their two, depending called medical infertility. Just as lesbian couples cannot have a babyJust as lesbian couples cannot have a with- infertility. called medical John Robertson infertile persons. Professor out ART, nor can medically should individuals that infertile points out that if one rejects the argument not be helped because “nature has not equipped people to reproduce,” the W. R infertility as “a disease, defined by to achieve a successful preg- the failure inter- of appropriate, unprotected or more timed nancy after 12 months pay two years before it one to for out-of-pocket of artificial insemination qualifies as medically “infertile.” Additionally, the statute because requires intercourse be that the inability period to conceive after the of unprotected caused byof the function a disease or condition that results in the abnormal actually qualify could system, it is not clear that a gay couple reproductive as infertile. &T is necessaryinfertility, women in because, given the high cost of same-sex to “choose between relationships have starting a family and their financial security.” trict of New Jersey—saystrict of New lesbians due process requirement denies the and care of the infertility that law “by under the equal protection mandating by be covered women heterosexual carriers their insurance failing to but mandate that the same infertility in care be covered for women same-sex relationships.” Reproductive Technologies and Legal Implications for Gay and Unmarried Persons Gay and Unmarried and Legal Implications for Reproductive Technologies 38779-ckt_92-1 Sheet No. 58 Side A 03/01/2017 10:44:39 A 03/01/2017 58 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 58 Side B 03/01/2017 10:44:39 , 1, 631, [Vol 92:1 note 107. Definitions of TERILITY The ASRM The ASRM supra 1, 2 (2005), 2 (2005), 1, &S 108 L.J. 935, 938 (1996) 935, L.J. 107 ASTINGS ERTILITY ,99F Even the World Health Or- Health the World Even Definitions and Terminology 106 A New Vision for Advancing our Movement for Infertility ONCLUSION The reality is that access is assisted re- 109 ) 1/18/2017 7:19 PM 111 ., VI. C note 66. RG same-sex per couples are se infertile deemed ELETE O D OT supra CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O note 34, at 162. (1) (D EALTH H supra ACRO ACRO M 110 Asian Communities for Reprod. Just., Dorothy E. Roberts, Race and the New Reproduction, 47 H Practice Committee of the American Society for Reproductive Medicine, With compelling the stories like LGBT groups should Krupas, ORLD OHAPATRA See See See 112 102 4M Access to biological parenthood for LGBT individuals is a Access to biological parenthood for of matter Many insurance companies use the definition. ASRM’s The scientific of advances and the public em- assisted reproduction, 108. in For example, the earlier ofexample the was based on UnitedHealth, definition in the policy 111. 112. Mastroianni, 106.Reproductive Medicine, for PracticeSociety Committee of the American 107. W 109. 110. the economic, social and political power and resources to make healthy and resources to make political power social and the economic, our reproduction for ourselves, decisions about our bodies, sexuality and and our communities.” families middle class), one lives in one of the use of IVF is not unusual, even when states that dothe thirty-five of infer- not have required insurance coverage tility services. reproductive justice. Reproductive justice occurs “when [all people] have people] occurs “when [all justice reproductive justice. Reproductive http://www.who.int/reproductivehealth/topics/infertility/definitions/en/ (last visited Sept. 26, 2016). (“Most couples who use IVF services are white, educated, highly and affluent.”). Rights, and Reproductive Justice Reproductive Health, Reproductive http://forwardtogether.org/assets/docs/ACRJ-A-New-Vision.pdf. brace of it, have made the use of in vitro fertilization relatively the use of in vitro fertilization brace of it, have common- made are the daysof Louisa Brown being Gone United States today. place in the labeled as a “test tube baby.” In many andsocial circles (often white, upper (Sept. 13, 2012), (Sept. https://www.asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Co mmittee_Opinions/Definitions_of_infertility.pdf. LGBT individuals to access ART. LGBT individuals course or therapeutic donor insemination.” or therapeutic course reproductive “a disease of the infertility as (“WHO”), defines ganization system defined by to achieve the failure a clinical pregnancyafter 12 sexual intercourse.” unprotected of regular or more months con- group, should advisory health public the international and the WHO, a statement thatsider adding as they This would ensure clarityART. without cannot produce a child and rights of the about other public statements with ASRM access and comport the ASRM definition. Fairyington, production in the United States is enjoyed by the privileged few, with many is enjoyed few, with many production in the United States by privileged the medically not seeking ART due to the high costs of such infertile treat- ment. Infertility and Recurrent Pregnancy Loss: A Committee Opinion Infertility and Recurrent Pregnancy 38779-ckt_92-1 Sheet No. 58 Side B 03/01/2017 10:44:39 B 03/01/2017 58 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 59 Side A 03/01/2017 10:44:39 103 , 71 OMEN OMEN J. W ARY .&M M W Cheaper IVF would e services. All insur- ,20 114 (Aug. 27, 2016), 27, (Aug. With the dogged of determination can access thes CONOMIST vels lower thanmuch whites, although 113 ,E The Constitutional Inevitability of Same-Sex Marriage Same-Sex of The Constitutional Inevitability ) 1/18/2017 7:19 PM decision emphasized parenthood by LGBT parenthood by LGBT emphasized decision ELETE D OT N O Obergefell (1) (D ASSISTED REPRODUCTIONASSISTED AND MARRIAGE The Right to (Trans) Parent: A Reproductive Justice Approach to Reproductive The Right to (Trans) ACRO ACRO M Blacks access ART at le 115 .(2012). 472 471, OHAPATRA An Arm and a Leg for a Fertilised Egg EV 2017] 4M If there is a desire for ART equity, push LGBT activists could similar It is important to recognize that all individuals, whether LGBT or not, to recognize that all individuals, It is important .L.R 115. Laura Nixon, 113. Laurence H. Tribe & Joshua Matz, 114. D http://www.economist.com/news/briefing/21705676-doctors-have-spent-decades-trying-make-ivf- for increased, not just equal, coverage. Insurance coverage greatlyincreas- es who will actually have a chance to be a biological parent, if they are cause for infer- medically that has a biological (such as someone infertile tility) se infertile (such as in the case of an LGBT individual). One or per way access to to increase ART is to push for lower costs for ART. This re- of people to use diverse group would allow a Economist it. The more for a Fertilised Egg,” and a Leg “An Arm a story entitled centlypublished current efforts IVF cheaper. to which outlines make Rights, Fertility, and Family-Building Issues Facing Transgender People Rights, Fertility, and Family-Building Issues Facing Transgender bank account. I have outlined somebank account. I have suggestionsto increase ac- about how cess to ART to allow LGBTdefinitions by changing for LGBT couples this as heterosexual couples. However, privileges the same couples to have It States is still far too limited. coverage in the United is not enough. ART is not true equity when only rich the ance companies is a ART services. I realize that this to cover should have insurance coverage intough sell, when general with the ACA is such a issue. However, thepolitical hot button to marriage equality road was setbacks. of early tough and full more-effective-now-they-are-trying-make-it. LGBT community marriage groups, equity was achieved. couples and how some couples are now demanding equal rights in ART. in ART. rights equal couples are now demanding how some couples and ART and varying in coverage for state differences state Then, I highlighted legal stances This showson surrogacy. a LGBT cou- it is for how difficult eligibilityple to navigate their for ART or surrogacyservices. Of as course, one’s is the size of of who accesses ART determination biggest I noted, the & 82 (2013). 73, L. band together with infertility advocates such as RESOLVE such as advocates a coali- with infertility together band to build decrease cost access and tion to increase of ART. This Article began how the describing by reduce the cost of surrogacy,help same-sex couples of both so it would genders, as well as heterosexual couples. who can not just the ones access to biological parenthood, have should afford it. M 38779-ckt_92-1 Sheet No. 59 Side A 03/01/2017 10:44:39 A 03/01/2017 59 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 59 Side B 03/01/2017 10:44:39 We , 101 101 , [Vol 92:1 118 Transformative and gay or lesbian is a a and gay lesbian is or Kimberle’ Crenshaw, Williams 117 See Judith F. Daar, Accessing F. Daar, Judith Reproductive Kimberly M.Kimberly Mutcherson, see Being Black see also Buyers in the Baby Market: Toward A Transparent Buyers in the Baby Market: Toward A Transparent 116 ) 1/18/2017 7:19 PM . of infertile disproportionate number 187, 222 (2013) (“[A] . 1296 (1991). 1241, ELETE EV UST D &J OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW . (2016); n.21 76 71, .L.R N O EV atinos, and other ‘minorities,’ constitute a specific cultural group and, as Mapping the Margins: Intersectionality, Identity Politics, and Violence Intersectionality, Mapping the Margins: ACE TAN L R S (1) (D .L.R ,43 sians, A ENDER ACRO ACRO ASH M 16 J. G . using ‘Black,’ (“When 1331, 1332 n.2 (1988) I shall use an upper-case ‘B’ to reflect my , 91 W , 91 EV OHAPATRA Kimberle Crenshaw, 104 4M This article suggests that access to ART should be equivalent regard- be equivalent to ART should suggests that access This article .L.R 116. Madeira, Lyneé Jody June Carbone & 118. 117. I capitalize Black the racial group. to when referring ARV view that Blacks, like need to be sensitive that there is no true ART equality is no is if ART sensitive that there need to be mainly byaccessed wealthy white couples. LGBT does not that this However, I acknowledge orientation. less of your sexual ART and surrogacy legal landscape for coverage of go far enough. The in manyservices is bleak states. if For example, were the Krupas unsuc- cessful with IVF the services of a surrogate, they and wished to use would Jersey. so in New not be able to do New Jersey bans surrogacy arrange- ments for all, regardless after their of sexual orientation, malignedmuch Baby infertility M case. Instead, such as RESOLVE, advocates, do would to bisexual and transgender (“LGBT”), the lesbian gay well to partner with for all. better access to ART services fight for they of infertility. higher rates face double whammy, and makes one even more vulnerable in society. vulnerable even more and makes one double whammy, Reproduction, more likely to be infertile thanmore women.”); white such, require denotation as a proper noun”). Consumerism women in this country arewomen Black.”). Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GENDER JUST.L. & 18, 39 (2008) non-Hispanic black women, and other women women, of color are significantly (“Hispanic Against Women of Against Women Color Race, Reform, Law Retrenchment: and Antidiscrimination Transformation and Legitimation in H 38779-ckt_92-1 Sheet No. 59 Side B 03/01/2017 10:44:39 B 03/01/2017 59 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 60 Side A 03/01/2017 10:44:39 , (July (July Afri- (Beacon , 39 U.C. ARTHOLET ARKET ALLUP B M ,G RODUCTION P LIZABETH middle-class ARRIAGE HILD C M

) 2/1/2017 8:20 PM African-American mothers African-American mothers ELETE ORLD OF D L.J. E 875 (1998); W OT N What is the relationship between What is the relationship ALE O 1 EW EW ATING AND ATING ALDONADO Yet, despite of inter- our approval N D 2 105 M 1-30 (D , 107 Y 107 , middle-class Discouraging Racial Preferences in Adoptions Discouraging Racial The Color of Desire: Fulfilling Adoptive Parents’The Color Racial AND THE , OLANGEL S Marrying Out: One-in-Seven New Marriages is Interracial or Inter- NFERTILITY DITS AUTHOR WITH CMTS ,I E REFERENCES IN THE IN REFERENCES In U.S., 87% Approve of Black-White Marriage, vs. 4% in 1958 Marriage, vs. 4% of Black-White Approve In U.S., 87% P . 4, 2010), http://www.pewsocialtrends.org/files/2010/10/755-marrying- (June , Solangel Maldonado, , Solangel Maldonado, ACRO TR M DOPTION ROMANTIC CHILDREN AND DISCRIMINATION .C :A See e.g. ES ACIAL . Richard Banks, 1415 (2006); R EV ONDS ALDONADO I. R EW EW B L. R 5M In recent years, social scientists have used online dating sites to studydating scientists have used online social In recent years, Americans’acceptance of interracial intimacy has increased dramati- ,P 2. Jeffrey Passel et al., 1. how racial preferences Legal scholars have examined in the foster care and adoption system AVIS AMILY who lack or reject opportunities to marry. who lack or reject the role of race in the datingthe role of race in and marriage market. has re- Their research and gendered hierarchyvealed a racialized excludes disproportionately that For decades, Asian-American men. and women and men African-American other researchers have studied for children who the risks and outcomes homes grow up in single-parent as compared to children raised by married parents. This Essay in the dating market explores how racial preferences potentially the affect of children ethnic out.pdf; Frank Newport, cally in just one generation. In 1987, less than 50% of Americans approved cally less than 50% of Americans In 1987, in just one generation. of African-Americans and Whites dating. By 87% of all Americans, 2013, be- just dating) (not year18-29 of marriages olds, approved and 96% of tween African-Americans and Whites. Press, 1999). * Joseph M. Lynch Professor of Law, Seton Hall University School of Law. children. harm D 25, 2013). 25, F Preferences Through Discriminatory State Action Preferences Through Discriminatory can-American mothers can-American mothers will in be raised with homes and fewer resources similarly access to opportunities with limited to other children available the law do to minimize should what, if anything, educated parents? If so, racial preferences’ effects on children? racial preferences children’s and in the dating and marriage market access the dating and preferences in Do racial to resources and opportunities? marriage market increase the of likelihood that children 38779-ckt_92-1 Sheet No. 60 Side A 03/01/2017 10:44:39 A 03/01/2017 60 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 60 Side B 03/01/2017 10:44:39 3 supra [Vol 92:1 , 2005, 7, Oct. ALLUP Yet, even among Yet, even among 6 ,G ) 2/1/2017 8:20 PM ELETE D OT N O note 2. Interracial Relationships and the Transition to Relationships and the Transition Interracial I Wouldn’t But You Can: Attitudes Toward Interra- supra 1-30 (D Homogamy Among Dating, Cohabiting and Married and Cohabiting Homogamy Among Dating, Younger generations and racial and ethnic mi- Younger generations 5 . 356 (2012). 343, A wealth of data from surveys,from online dating, and A wealth of data CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ES 4 .R . who twenty-nine percent of eighteenyear-olds 563 (2005). Sixty to DITS AUTHOR WITH CMTS CI EV E .S Most Americans Approve of Interracial Dating Approve of Interracial Americans Most Kara Joyner & GraceKara Kao, .R OC ACRO OC M .S , 41 S , M . Q. Passel et al., 719, 732 (2004); OC ALDONADO , 70 A See generally , 45 S , 106 5M About half of all Americans report that they have dated a person of a have dated report that they all Americans About half of Racial preferences are whyanother reason the majorityof cohabitating 6. 3. Debra Blackwell & Daniel Lichter, 5. Jones, Jeffrey 4. Melissa R. Herman & Mary E. Campbell, Adulthood different race or ethnicity. the younger generation we find racialgeneration we find the younger dating patterns. White differences in college students are more likely Asian-Americans to date and Latinos than speed dating studies show that whenspeed dating studies partner, many intimate seeking an individuals prefer someone their of same race. Racial preferences might groupsalso explain why intermarriage have higher rates than some others. interracially dating often have preferences for open to Individuals who are ofmembers certain races exclusionto the preferences of others. These re- veal a racial individuals multiracial hierarchy Whites, including which in who are part (but not part Black), are deemedWhite desirable, most Afri- and other racial or ethnic minorities can-Americans significantly less so, (specifically somewhere Asian-Americans, and Native Americans) Latinos, This racialin the middle. hierarchy is gendered with Asian-American men and African-American women the least preferred in interracial dating and marriage market. Couples racial relationships, Americans most marryrace. same of their individuals One reason might be opportunity. We tend to date people we meet we to date people tend at meet We might be opportunity. One reason seg- and educational but residential or in our neighborhood, school, work, occupy most in minorities racial and ethnic lower positions and the regation interact for to of different groups members limit opportunities workplaces socially equals. as and married are ofcouples the same race. a person Just because approves herself is willing to mar- that she mean does not of interracial relationships line. ry across the color participated in a Gallup poll reported that they had dated aged interracially, as did 53% of individuals and sixty-five of individuals and 28% to sixty-four, thirty to forty-nine, 46% of individuals aged fifty Jones, of Whites reported the same. and 45% 52% of African-Americans, older. 69% of Latinos, note 5. http://www.gallup.com/poll/19033/most-americans-approve-interracial-dating.aspx. norities are even more likelydated interracially.norities are even more to have cial Relationships 38779-ckt_92-1 Sheet No. 60 Side B 03/01/2017 10:44:39 B 03/01/2017 60 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 61 Side A 03/01/2017 10:44:39 . . ES 107 R TUD NITED as do . 1065, Jose A. .S U EW EW 12 AM AM ,P See In 1960, In 1960, Ana Gonza- .F 9 &F See ., 2015, 12, June OW THE 7 117, 117 (2008). 117 (2008). 117, OMP . H TR in .C TUD , ARRIAGE ES .S R M , 33 J., C . 1–3 2012), 16, (Feb. 1 A. Cobas et al. eds. (Jose the rate of intermar- the rate of CON TR Who InterraciallyAn Dates: Yet, race continues to EW EW 8 sex couples were interracial or .E 10 , Interracial at 18–19. Apr. 2012, Marriages between of minorities .C ) 2/1/2017 8:20 PM ?, P ?, , 72 J. 72 , EV Zhenchao Qian & Daniel Lichter, ES 323, 340 (2007). 323, Id. R Interethnic and InterracialDating in ELETE note 6, at 574. UREAU , 75 R , D B ONSEQUENCES EW EW OT See also C N supra ,P O TS I ENSUS C ELATIONSHIPS 1-30 (D cohabitating different- cohabitating .R ,U.S. ERS note 3, at 720–21. Americans note 3, at 720–21. Americans are twice as likely to cohabit .&P EGEMONY AND note 4, at 346; George Yancey, supra H rry. Joyner Kao, rry. Joyner & OC Id. Is Being Hispanic a Matter of Race, Ethnicity, or Both? Matter of Is Being Hispanic a as across to race. marry Racial Preferences in Dating HITE supra When Does Race Matter? Race, Sex, and Dating at an Elite Universi- Does Race Matter? Race, When , 24 J., S :W DITS AUTHOR WITH CMTS . (2010); Shana Levin et al., 45, 48 E The Rise of Intermarriage ROMANTIC DISCRIMINATION AND CHILDREN Interracial Marriage: Is Marrying Out Who Interracial Marriage: AM (noting that the term “Latino” term the (noting that of Latino/Hispanic to persons Hispanic refers or ACRO ATINOS &F L M Id. Households and Families: 2010 and Families: Households 11 Racializing Latinos: Historical Backgrounds and Current Forms Current and Historical Backgrounds Racializing Latinos: ARRIAGE ALDONADO ACIALIZES R 2017] 5M While the majority of individuals who of individuals majority While the cohabitate interracially date or Intermarriage patterns vary widelyIntermarriage The ma- color, and gender. by race, 8. & Campbell, Herman 7. Elizabeth McClintock, 9. 388 U.S. 1, 12 (1967). v. Virginia, Loving 10. Wang, Wendy 11. Fisman et al., Raymond 12. Wang, Wendy . 15, 2015), http://www.pewresearch.org/fact-tank/2015/06/15/is-being-hispanic-a-matter-of- (June , 72 J., M TR TATES imately 70% of all interracial involve a Whitemarriages partner. different races are significantly rarer. lez Barrera & Mark Hugo Lopez, Cobas et al., http://www.pewsocialtrends.org/2012/02/16/the-rise-of-intermarriage/. group and Latinos are an ethnic just 2% of marriages in the United States were interracial.years later, Fifty just 2% of marriages marriagesin 2010, 15% of celebratedyear that between spouses of were between different races or Latinos and non-Latinos. Consequently, this Essay follows the approach of the majority of researchers who treatmajority this Essay follows the approach of the marriages Consequently, andfrom between Latinos and non-Latinos as intermarriage marriages between different other ethnic and Italian-Americans.groups such as Irish-Americans ultimately do not marryrace, of a different a person 179, 180 (2002); Blackwell & Lichter,179, 180 (2002); Blackwell with a partner of a different race Changing Patterns of Interracial Marriage in a Multiracial Society a Multiracial in Patterns of Interracial Marriage Changing had a Latino and as compareda non-Latino partner couples. Daphne to 9.5% of different-sex married et al., Lofquist 2009). Many Latinos“Latino” believe that is a race and reject U.S. definitions of race. riage has increased significantly since the Supreme Court declared in 1967 Court declared since the Supreme increased significantly riage has prohibiting interracial that laws marriage were unconstitutional. can be of any race. of race). However, researchers as a racial differ- treat origin regardless group when comparing them ences in wealth, education, income, fertility patterns, and life expectancy of racial groups. http://www.pewresearch.org/fact-tank/2015/06/12/interracial-marriage-who-is-marrying-out/. Approx- Examination of the Characteristics of Those Who Have Interracially DatedExamination of the Characteristics of Those Who ty jority of American Indians (58%) jority of American marry with Whites, out, primarily S to date African-Americans. African-American college students are also less are also students college African-American African-Americans. to date to date interracially. or ethnic minorities racial other likely than cohabiting couples are likelycohabiting couples thanmore couples to break-up and thus are only 60% as likely same-race ma couples to cohabiting as same-race race-ethnicity-or-both/ (reporting that two-thirds of Hispanic say that Hispanic is part of their race.part of their is say that Hispanic two-thirds of Hispanic race-ethnicity-or-both/ (reporting that College: A Longitudinal Study C 1077–79 (2011). For example, in 2010, 18.3% of For example, (2011). 1077–79 influence our romantic choices.influence our romantic In a society race did not play where a role 15%, of recent marriages be would 44%, not just relationships, in intimate interracial. 38779-ckt_92-1 Sheet No. 61 Side A 03/01/2017 10:44:39 A 03/01/2017 61 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 61 Side B 03/01/2017 10:44:39 , , , & Id. See IMES ROUD ACE [Vol 92:1 :P ONTEXTS , 5 R African- five times ,N.Y.T , 4 C 20 MERICA Dark-skinned A 18 The majority of 15 , 80–81 (2015), (2015), 80–81 , ) 2/1/2017 8:20 PM ULTIRACIAL IN Who Is Is Whom Marrying Who ELETE ,M D UMBERS U.S.-born co-ethnics to intermarry. N TR OT Skin tone plays a similar role in playsSkin tone similar a N .C O 17 ES In contrast, the In contrast, majority of African- R 16 1-30 (D EW EW Asian-Americans and and 17% Latinos, HaeYoun Park, note 8, at 1076 (noting that there is no significant differ- there is no significant that note 8, at 1076 (noting 13 ., P See supra Multiracial individuals who are part White are are are part White individuals who Multiracial CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ROWING IN note 8, at 1070. 14 G ARKER ET AL P DITS AUTHOR WITH CMTS 10, at 9–10 (reporting that 9% of African-American women out married in E Breaking the Last Taboo: Interracial Marriage in America in Marriage Taboo: Interracial Breaking the Last Race and Social Distance: IntermarriageRace and Social Distance: with Non-Latino Whites supra IM note 17, at 45. note 12note out.);2010 in married married of Whites who 9% (discussing that Qian & Lichter,Qian & note ACRO note 2 Asian- U.S.-born Latinos and 46% of that 39% of U.S.-born (reporting M See Id. supra supra supra 19 supra at 1071; K note 10, at 1.9. Qian, ALDONADO Id. See supra 33, 33 (2002). Darker-skinned Latinos tend to identify as racially “other”33, 33 (2002). Darker-skinned Latinos tend to identify U.S. Census. on the 108 5M Intermarriage patterns also Intermarriage varyby minori- color. Lighter-skinned skin The of some groups are not only patterns influenced bymarriage race, Y 19. Zhenchao Qian, 14. Wang, 18. rates Intermarriage with Whites are lowest for African-Americans, slightly higher for dark- 16. 15.Lichter, Qian & 17. Zhenchao Qian, 13. Immigrants are less likely than their significantly 20. Wang, ’ IVERSE AND OC skinned Latinos, higher for lighter-skinned Asian-Americans, and highest for the lightest-skinned and highest for the lightest-skinned Asian-Americans, higher for lighter-skinned skinned Latinos, Latinos. ties are intermarry to more likely counterparts their darker-skinned than as racially white who identify U.S.-born Latinos For example, with Whites. Census are significantly more likely their darker counter- on the U.S. than Whites. to non-Latino parts to be married Wang, Wang, 2010 as compared to 43% of U.S. born Asian-American women). 2010 as compared to 43% of U.S. born Asian-American with American Indianwith American ancestry are also to likely than Latinos with Black ancestors to be married more non-Latino Whites. American American men are twice as likely than more as African-American women American/White multiracial individuals partner with African-Americans. individuals partner American/White multiracial Jan. 29, 2011, http://www.nytimes.com/interactive/2011/01/29/us/20110130mixedrace.html. LatinosJan. 29, 2011, at 40. Latinos who identify as racially White are twice as likely as Latinos who identify as racially to non-Latino Whites. Black to be married of African-Americans. but also by women gender. U.S.-born Asian-American are almost likely to intermarrymore than African-American women. significantly a White co-ethnics to have likelymore their mono-racial than patterns varyby race. marriage here too partner but Passel et al., more than one-third of U.S.-born one-third than more http://www.pewsocialtrends.org/files/2015/06/2015-06-11_multiracial-in-america_final-updated.pdf. ence between the intermarriage rate of Blacks). U.S.-born and foreign-born Americans who married in 2008 married out as compared to 12% of Latino immigrants and 26% of and 26% of who out as compared in 2008 to 12% of Latino immigrants Americans married married Asian immigrants). Asian/White Asian/White individuals have Latino/White and about half of multiracial a partner. or cohabitating White spouse minorities who intermarry with Whites are more likely than their lighter- likelythan their are more with Whites minorities who intermarry attained less formal to be married to Whites who have skinned counterparts of “down” in terms to marry other words, education than themselves—in education. S the intermarriage patterns of U.S.-born Asian-Americans. D Fall 2005, at 35. 38779-ckt_92-1 Sheet No. 61 Side B 03/01/2017 10:44:39 B 03/01/2017 61 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 62 Side A 03/01/2017 10:44:39 , , , , In 109 AOMI ATES ARTIN ILSON J. G &N THNICITY &W /E 4 (2012). Be- 4 (2012). ARY 1 (2014). The The 1 (2014). ACE 62 (2014). Intermarriage and ,R ARBONE 26 ASTANIS C OUPLES .” AMILY THNICITY C F UNE . M 813 813, (1973); EX &E NSTITUTE I note 8, at 20; G -S CON ACE ) 2/1/2017 8:20 PM Yet, the same racial pat- same Yet, the MERICAN .E AME supra S A 21 OL 22 ILLIAMS ELETE D W nmarried) are interracial or interethnic asnmarried) 2010: R . J 395 (1998); OT HE HE N OC , 81 J. P O ,T .S 23 ENSUS C EV EMAKING THE R 36–37 (2014); Matthis Kalmijn, NDIVIDUALS IN ILSON 1-30 (D I .R NN at 416–17. AMILY We generally partner with people who are are who people with We generally partner D.M. W Id. F OUPLES IN C , 24 A , 24 NEQUALITY IS EX EX I ELLBEING OF IANCA Our family members, friends, members, Our family and neighbors also -S W OW OW &B 25 AME DITS AUTHOR WITH CMTS :H E A Theory of Marriage: Part I Marriage: A Theory of ,S note 24, at 398. We also tend to marry partners physical with similar traitsnote 24, at 398. We also tend to marry , In the End, People May Really Just Want to Date Themselves ROMANTIC DISCRIMINATION AND CHILDREN A. Interracial What Drives Marriage Patterns? ACRO ASTANIS CONOMICS OF THE ARKETS K M supra M , Apr. 28, 2014, http://fivethirtyeight.com/features/in-the-end-people-may-really- ., E NSTITUTE OCIOECONOMIC I S IGHT (reporting that the gender disparity is even and greater between foreign-born Asian men at 1. E NGELIKI ALDONADO AND Id. Id. ARRIAGE , ILLIAMS 2017] 5M Gays and lesbians are counterparts their heterosexual likely than more Most married couples do not randomly end up together but rather are end up together Most couples do not randomly married note 22, at 2. HIRTY ,M W T 22. A 25. Kalmijn, 21. 26. Pierson Emma 24. Gary S. Becker, 23. of Asian-Americans 67% For example, and PacificLatinos as compared Islanders and 55% of ENDER ROWNING ET AL ROWNING ET AHN HE IVE to have an intimate partner of a different race. intimate partner to have an just-want-to-date-themselves/. I am grateful to Professor Naomi at Schoenbaum George Washington University School of Law for this source. compared to 9.5% compared of different-sex married couples. Lofquist et al., women. Foreign-bornwomen. Asian-American are three women times as likely as their counterparts tomale v. 11%)). out (34% marry relationships are significantly likely more to have than African-Americans race or ethnicity.a partner of a different the result of assortative mating—the tendency of people to date and marry the result of assortative of people mating—the tendency themselves. like individuals tend to be of the same race and similar socioeconomic status. Online dating socioeconomic race and similar the same tend to be of is not potential mates when the pool of studies suggest, however, that even we bymeetlimited at school, work, the gym, or local bar, we still whom prefer to date one aptly-titled article noted, people like ourselves. As “ to 33% of African-Americans in same-sex relationships had a White partner. K White partner. relationships African-Americansof in same-sex had a to 33% 2010 U.S. Census shows that 20% of same-sex households (u same-sex shows that 20% of 2010 U.S. Census B C to marry out. The opposite is true for Asian-Americanis true for as are half men who opposite The to marryout. likely to intermarry. counterparts as their female T Homogamy: Causes, Patterns, Trends similar to us in terms of race, education, and socioeconomic status of race, education, to us in terms similar in part and socioeconomic levels of education people with similar time with a lot of because we spend at work. at school or F terns observed in different-sex relationships are relationships in different-sex terns observed rela- in same-sex apparent Latinos in same- and Asian-Americans tionships. different-sex or G supra the End, People May Really Just Want to Date Themselves the End, People May Really Just Want cause few states recognized marriages between persons of the same-sex in 2010, the U.S. Census made the U.S. Census made in 2010, same-sex of the between persons cause few states recognized marriages no distinction betweenwhich they were which couples and those in in households married same-sex were not. such as attractiveness, height, and weight. 38779-ckt_92-1 Sheet No. 62 Side A 03/01/2017 10:44:39 A 03/01/2017 62 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 62 Side B 03/01/2017 10:44:39 , . : st & OVE ELVES ,L S stated ADISON SYCHOL [Vol 92:1 M .P ATACLYSM 103 (2013); (2013); 103 ARKETING LATER OC S ,D FFLINE .M O &S AN For example, For example, SHLEY ATING D UR A M UDDER 29 UANT O Not surprisingly, Not surprisingly, R preferences—what 27 See , 8 Q BOUT see also A 807, 810–11 (2011); Günter J. Günter 807, (2011); 810–11 ERSONALITY S ]. HRISTIAN ) 2/1/2017 8:20 PM U stated EETING AND at 203; ORCES M ELL ELETE , 94 J. P T .F D encounters. OC supra OT N IVES OES TO preferences, researchers have ex- L O Mate Selection in Cyberspace: The Intersection D , 89 S 89 , note 27, at 398. note discreet The date-seekers, who know did not 2, 5 (2014); Belinda & CynthiaRobnett Feliciano, Sex Differences in Mate Preferences Revisited: Do are and preferences of both result the 1-30 (D NLINE . C 183 (2013); 183, What What Makes You Click O 30 stated OC UR Searching for a Mate: The Rise of the Internet as a Social O ULTURE ECHNOLOGY .J.S Black/White Online Dating: Interracial Courtship in the 21 Courtship Online Dating: Interracial Black/White C T M HAT outcomes HAT EDIA CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW —W M , 119 A 119 , . 523 (2012). :W preferences of online date-seekers by observing how bypreferences of online date-seekers observing how EV DITS AUTHOR WITH CMTS E .R DENTITY I OPULAR OC What Makes YouWhat Click, supra political and religious affiliations, interest in dating some- in dating interest political and religious affiliations, ACRO .P .S M LGORITHMS 31 AND M , Ken-Hou Lin & Jennifer Lundquist, , A revealed e.g. Paul W. Eastwick Eli & J. Finkel, Gerald Mendelsohn et al., What Makes YouWhat Makes Click—Mate Preferences in Online Dating ACE , SYCHOL , 77 A , ,R ALDONADO See See See IME OF EX T ,3P 28 110 5M To address the limitations of Dating and marriage and marriage Dating . 393, (2010) [hereinafter Hitsch et al., 397 ,S 29. 28. 30. Hitsch et al., 31. search for their individuals who are separated or in the process of divorcing Some married 27. CON OVE People Know What They Initially Desire in a Romantic Partner? They Initially Desire in a Romantic People Know What ly to individuals seeking a partner for an affair such as Ashley Madison, a partner for an affair such which itself as the ly to individuals seeking markets world’s leading dating service for married used the Internet to potential dates); Lin meet & Lundquist, people say they partner—generally want in a ask date-seekers to identify in a romantic partnerthe traits they seek the traits date-seekers or examine a personal ad or online dating profile. have identified in https://www.ashleymadison.com (last visited Sept. 28, 2016). 245, 245 (2008). 245, of Race, Gender, and Education Hitsch et al., IN THE L that their behaviors would be observed bythat their behaviors would be observed detailed researchers, provided education, income, height, weight, profiles noting their age, gender, race, marital status, Century E next relationship online while still legally who have married. A small percentage individuals of married exclusive- there are sites devoted sites even though use these also their spouse of divorcing no intention 109–16 partners have Internet users who are seeking romantic 75% of that almost (discussing (2014) individuals may not be completely truthful when describing the traits they the traits when describing truthful be completely maynot individuals will be judged as superficial, elitist, they fear theyseek in a partner because or even racist. even when we are completely Moreover, honest, our preferences may preferences. not reflect our true As evolutionary psy- we often do chologists have discovered, not know what we really want in a mate. Michael J. Rosenfeld & Reuben J. Thomas, Michael J. Rosenfeld & Reuben J. Thomas, Intermediary Patterns of Racial-Ethnic Exclusion by Internet Daters amined the amined Günter Hitsch and his colleagues examined the search behaviors of almostGünter Hitsch and his colleagues examined 22,000 heterosexual online daters. opportunities and thus cannot explain whether opportunity, preferences preferences opportunity, cannot explain whether and thus opportunities rates of the different or both, drive preferences), interra- whose (and if so, Researcherscial coupling. of dating and the limitations have addressed of individuals the preferences by outcomes marriage directly examining on Studies that focus romantic partner. seeking a they respond when contacted bydaters with certain traits. 38779-ckt_92-1 Sheet No. 62 Side B 03/01/2017 10:44:39 B 03/01/2017 62 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 63 Side A 03/01/2017 10:44:39 . . M M 111 East- They They 82 A See , 100 A 100 , 35 note 27, at 53, 68 (1998). 68 (1998). 53, Do Advertised Gender Differ- Partner Prefer- supra , ]. Older studies have EXUALITY 623, 631–32 (2007). 623, .S Fisman et al., Fisman UM See ) 2/1/2017 8:20 PM .&H ELETE Gender Differences in Mate Selection: D ELATIONSHIPS SYCH What Makes You Click Makes What Matching and Sorting Matching and OT .R The Strategies of Human Mating, N O note 27, at 424. Another study found similar similar found study at 424. Another 27, note ERS . Regan et al., 673, 673 (2006); 1 (2008). Other studies have similarly found that that found 1 similarly (2008). Other studies have Matching and Sorting in Online Dating in Sorting and Matching ,10J.P note 11, at 118–19. note CON , 14 P , In other words, 95% of female online words, In other 1-30 (D E supra , 34 David Buss, supra Minimum Mate Selection Standards as a Function of Per- of a Function as Mate Selection Standards Minimum , EXUALITY , 2 Q.J. See of preferences. the For example, of majority .S UM note 28, at 245; Robert Kurzban & Jason Weeden, 245; note 28, at .&H Date-seekers browsed other users’ profiles and sent Günter J. HitschGünter et al., supra DITS AUTHOR WITH CMTS 32 E SYCH Racial Preferences ROMANTIC DISCRIMINATION AND CHILDREN What Makes You Click note 28, at 245; Raymond Fisman et al., note 28, at 245; Raymond ACRO see also M notes 41, 44–52 and accompanying text. , 12 J., P racial hierarchy supra Online daters’ revealed search behaviors also strong racial pref- preferences—who to responded contacted and who they they note 11; 130, 147–148 (2010) [hereinafter Hitsch et al., [hereinafter (2010) 130, 147–148 . Other studies have similarly found that date-seekers prefer attractive date-seekers prefer found that partners. . Other studies have similarly Fisman et al., . 238, 240 (1994); Pamela Regan, Regan, Pamela (1994); 238, 240 33 ALDONADO Id See infra EV , Eastwick & Finkel, See 2017] 5M supra Other online dating studies have revealed racial preferences.Other online dating studies Not surprisingly, daters’ online search revealed a universalbehaviors .R , 33. 34. Hitsch et al., 32. female faces and 400 of 400 male The researchers hired college students who rated photos 35. CON CIENTIST Evidence from a Speed Dating Experiment faces on a scale of one to ten. The researchers used each picture approximately twelve times. “Con- attractiveness in a large literature by independent ratings psychology, in cognitive sistent with findings observers appear to be positively correlated.” Hitsch et al., 401. wick & Finkel, when contacted—showed equally strong preferences as the women who preference. had expressed a racial Preferences Predict the Behavior of Speed Daters? men care men about caremore looks and women aboutmore and status. For example, one speed income who had been preferred men that women found students and professional of graduate dating study preferences. no such had men while neighborhoods raised in affluent daters in Hitsch’s studyhad racial preferences even though only 41% stated those preferences in their profiles. similarly found that men value a woman’s found that physical appearance over her similarly men intelligence but and ambition earning about a man’s relationship) care more a long-term partner for (at least when seeking a women potential, intelligence, and social status. E S one of a different ethnic background, and whether they were seeking a seeking they were and whether background, ethnic different of a one long-termcasual or relationship. Manyusers alsowhich a photo provided rated for physicalthe researchers the opinions of based on attractiveness observers. objective However, some studies have found that both genders value physical attractiveness above other traits.that both genders However, some studies have found See, e.g. results. ences: What Characteristics do Men and Women Desire in Their Short Term Sexual and Long Run Term Sexual Short Desire in Their and Women do Men Characteristics ences: What Romantic Partners erences even when they state those preferences. did not 55% For example, of the women expressed profiles, but their no racial preferences in their revealed ences emails to individuals they might want to date. might want to they to individuals emails preference for physically Howev- individualshigh incomes. with attractive his physical a valued income er, women than appear- man’s highlymore ance, and men ranked a woman’s physical attractiveness above her income. ceived Mate Value, Relationship Context, and Gender ceived Mate Value, Relationship Context, also reveal a straight White men in an in straight White online dating study Felici- men by conducted Cynthia ano and her colleagues stated a racial preference. also ex- The majority 38779-ckt_92-1 Sheet No. 63 Side A 03/01/2017 10:44:39 A 03/01/2017 63 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 63 Side B 03/01/2017 10:44:39 . OC .Q. 163 This This OC S [Vol 92:1 39 , 38 S , HE , 50 T , ETHODOLOGY M Latina women who Latina women iscrimination norm, norm, iscrimination However, they were theyHowever, were note 29, at 115. 36 ACISM AND ) 2/1/2017 8:20 PM African American Caucasian Latinas Asian American :R , supra ELETE D ETHODS OT The as the New End of Racism Doxa: New UDDER N M O of online daters in one study stated of online daters in one study s vocalized a strong negative bias to- negative strong s vocalized a HITE n are most likely to respond to messages messages to likely to respond n are most 94% Gendered Racial Exclusion among 1-30 (D ,W al Asian-American and al Asian-American merican, Latina, or White women. merican, Despite this strong anti-d OGIC . R 12 (2009); 1, L 53% 38 Racial Preferences in Internet Dating: A Comparison of Four Dating: A Comparison Racial Preferences in Internet , 38 Social Science Research 39 (2009) TUD S HITE act upon such preferences in settings such as educa- act upon such preferences in settings such Any But Racism: How Sociologists Limit the Significance of Rac- Significance Any But Racism: How Sociologists Limit the W 48% Gendered Racial Exclusion Among White Internet Daters CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW in LACK , al hierarchy in which White men rank African-American rank African-American White men which in al hierarchy 7% DITS AUTHOR WITH CMTS J. B E Id. Crossracial Differences in the Racial Preferences of Potential Dating Part- Crossracial Differences Expressly Exclude Female note 29, atnote 112–13. Percentage of White MenWhite Who Percentage of 117, 119 (2001); Charles Gallagher, Daters Based on Race/Ethnicity ACRO Y M ESTERN ’ supra Source: Cynthia Feliciano et al., Daters Internet White OC 0% , 33 W 33 , 80% 60% 40% 20% and it is illegal to &S 100% It is no longer socially acceptable to express racial preferences in most socially acceptable to express racial preferences in most It is no longer 37 ALDONADO . 39, 45, 49 (2009). About one-third of White men who expressed a racial preference preferred who expressed men of White one-third . 39, 45, 49 (2009). About ACE 112 5M ES 38. Rudder, 39. George Yancey, 36. Cynthia Feliciano et al., 37. Bonilla-Silva & Baiocchi, , 4 R .R CI ners: A Test of the Alienation of African-Americans and Social Dominance Orientation ners: A Test of the Social Dominance Alienation of African-Americans and quite specific about which groups they were willing to date. About 50% of About 50% of were willing to date. groups they about which quite specific White stated who men a racial preference expressly Asian- excluded womenAmerican Latina women. excluded similar and numbers Yet, more African-American refused to consider than 90% women. chart below The this hierarchy.illustrates (Tukufu Zuberi & eds., 2008). Eduardo Bonilla-Silva ism pressed interestpressed to date interracially. or willingness hierarchy is also reflected in straight White men’sreflected in straight White is also hierarchy contacted when response rates White me online date-seekers. by female 121, 130 al., Glenn Tsunokai et (2009); Birth Cohorts tion, employment, and housing. In fact, 84% tion, employment, ha “who someone date not would that they of people.” race certain ward a contexts studies have found a found raci a studies have Asian-A below significantly women to date White women only. Strategies for Researching Race Strategies for Researching S from White women and from and from multiraci White women from 38779-ckt_92-1 Sheet No. 63 Side B 03/01/2017 10:44:39 B 03/01/2017 63 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 64 Side A 03/01/2017 10:44:39 113 note 43 supra , They also 47 Id. at higher rates at higher UDDER (Sept. 10, 2014), 10, 2014), (Sept. ed by Curington, note 29, at 109–10. Although most WhiteAlthough most RENDS For these men, a wom- a For these men, T 42 supra , wants, and activities they wants, OK 49 ) 2/1/2017 8:20 PM . 1, R 10 (2015); , note 29, at 203–04. EV ELETE UDDER D .R ces, including age, body type, ed- including age, ces, OT supra OC N on Match popular dating (the most note 29. te date-seekers on the online dating online dating on the te date-seekers O .S cation, religion, employment, marital marital employment, religion, cation, M n-American/White men men n-American/White veral studies conduct men respond mainly to White men and White to men mainly respond men eferences for Whites for Whites eferences the when even sys- supra ssages from multiracial Asian/White men men Asian/White multiracial ssages from , 1-30 (D Straight White women on these sites rated rated on these sites White women Straight , 80 A , 50 44 Positioning Multiraciality in Cyberspace: Treatment of Positioning Multiraciality 48 UDDER about their beliefs, needs, beliefs, needs, about their note 40; Lundquist, & Lin note 40, at 18. note 36, at 47. note 36, at 45. Race and Attraction, 2009-2014 Race DITS AUTHOR WITH CMTS While more than 90% of White women rejected Asian men Asian men rejected White women of 90% than more While E note 40, at 10; R supra supra note 29, at 114–15. supra supra They are less likely are less They to respond to African- multiracial ROMANTIC DISCRIMINATION AND CHILDREN 46 41 ACRO 40 supra M This hierarchy is also reflected in White women’s response rates response White women’s in is also reflected This hierarchy supra , 45 at 10. UDDER Data from millions of online daters online of millions Data from Online date-seekers have many preferen have many date-seekers Online White women’s preferences also reveal a racial hierarchy. Almost 75% of 75% Almost hierarchy. also reveal a racial preferences White women’s College-educated minorities and Latinos/as are more likely to intermarry likely to intermarry are more and Latinos/as minorities College-educated ALDONADO Id. Id. 2017] 5M 40. Celeste Vaughn Curington et al., 41. Curington, 42. Feliciano et al., 43. 77% of White women with a stated racial preference excluded Latino but 91% excluded men 50. Christian Rudder, 49. Feliciano et al., 45. 46. Curington et al., 44. R 48. 47. Curington et al., preference, only 23% expressed a religious preference. a religious only 23% expressed preference, American/White women, and almost never respond to messages from African- from messages to respond never and almost women, American/White women. American site in the U.S for the last 20 years), OkCupid, and Date Hookup confirm the racial the racial Date Hookup confirm and OkCupid, years), last 20 for the U.S site in the dating in the online market. hierarchy http://blog.okcupid.com/index.php/race-attraction-2009-2014/; R http://blog.okcupid.com/index.php/race-attraction-2009-2014/; Asian-American and African-American men as significantly less attractive than the as significantly less men African-American and Asian-American Multiracial Daters in an Online Dating Website in an Online Dating Multiracial Daters are part White. are part 29, at 116–17. African-American and 93% excluded Asian men Only 4% excluded White men. men. ucation, income, and religion. But race ranks particularly high on their preferences. their preferences. on race ranks particularly But religion. high and ucation, income, in Feliciano’s study stated a racial White men straight while 59% of For example, responded to Latino/White men and Africa and men Latino/White to responded than their mono-racial counterparts. mono-racial than their women excluded all non-White men, they were more than twice as likely to ex- to as likely than twice they were more all non-White men, excluded women men. to Latino as compared men Asian-American and African-American clude straight White women in Feliciano’s study expressed racial preferences and a ma- and racial preferences expressed Feliciano’s study in women White straight jority of those (64%)preferred date to White only.men Lin, that White and revealed Lundquist wo ignore messages from men of other races with one exception—multiracial men men one exception—multiracial with races other of men from messages ignore who part White. are when contacted by online date-seekers. Se date-seekers. by online contacted when as potential dates, they responded to me they responded as potential dates, at similar rates as they did to messages from mono-racial White men. mono-racial from messages to as they did rates at similar an’s race was more important than her edu than her important more was race an’s Whi Straight smoked. she whether status, or average man. average tem’s algorithm determined that their best “match,” based on their responses to to responses based on their “match,” that their best algorithm determined tem’s questions 300 approximately enjoy, was a person race. of a different site OkCupid revealed similarly strong pr revealed similarly site OkCupid 38779-ckt_92-1 Sheet No. 64 Side A 03/01/2017 10:44:39 A 03/01/2017 64 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 64 Side B 03/01/2017 10:44:39 53 57 See Qian, supra supra ECOND [Vol 92:1 See 25 (2013), 25 (2013), ., S TR .C 58 ( 2013); ES R . (2010); 1243 1243, MERICANS Feliciano and her and her Feliciano OC A EW EW 52 note 39, at 10. ., P .J.S SIAN MMIGRANTS M likely than Whites with likely than I A gardless of their level of level of of their gardless at 51; Mendelsohn et al., at 51; Mendelsohn et supra a college degree received received degree college a ) 2/1/2017 8:20 PM note 36, at 46–48. Minorities are 147, 147147, (2001). Id. , 115 A 115 , ISE OF more Aaron Gullickson & Vincent Kang Fu, ELETE R supra D AYLOR ET AL HE without See T OT HILDREN OF levels of educational attainment. of educational levels N C ., T O AUL Tsunokai et al., TR EMOGRAPHY P a women in women a con- study dating online an of heterosexual online daters discussed daters discussed online of heterosexual note 27, at 425. note Feliciano, .C DULT 1-30 (D A See Feliciano expressed a racial preference and and a racial preference Feliciano expressed so one might assume that college-educated college-educated that assume might so one ES al preferences trumped educational prefer- educational trumped preferences al , 38 D , See R supra see also 51 White men White men , EW EW preferences for White men. for preferences 55 ., P note 10, at 20, 24 (reporting that 60% of Asian-Americans who exclude African-Americans as romantic partners. romantic as African-Americans exclude the White spouse tends to be the less-educated partner. the White spouse tends to be the less-educated a college degree than to messages from African- from messages to than degree a college CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW supra note 29, at 183. note , majority of White of majority re women, ORTRAIT OF THE note 36, at 49; DITS AUTHOR WITH CMTS supra E AYLOR ET AL without :AP T supra note 10, at 20–21 (reporting that college-educated second generation (U.S.-born (reporting that 20–21 10, at note What Makes YouWhat Click ACRO AUL a college degree. a college M yet their preferences reflect a similar racial hierarchy. For example, For example, racial hierarchy. similar reflect a preferences yet their Racial Intermarriage Pairings supra MERICANS 58 note 8, at 1077 (finding that “educational attainment among Blacks in 2008 was signifi- 2008 among Blacks in attainment “educational that (finding 1077 8, at note with A at 209. at 209. College-educated Whites are more likely to contact and respond to mes- to respond and to contact likely are more Whites College-educated An Endorsement of Exchange Theory in Mate Selection in Mate An Endorsement of Exchange Theory ALDONADO Id. Id. Id. College-educated African-American women received significantly fewer received significantly women African-American College-educated supra 54 The Rise of Intermarriage Racial minorities and Latinos are generally more willing than Whites to date Whites to willing than more generally and Latinos are Racial minorities 114 5M note 19.note for Whites trade their higher racial status research Some suggests that less-educated 56 55. 57. 58. stated that they straight White women a of one study found that while majority For example, 51. Wang, 54. Lundquist, & Lin 56. 52. Hitsch et al., 53. Feliciano et al., ENERATION cantly associated with marriages to Whites. When both partners had at least a college education the also more willing to date Whites than Whites are to dating them. Whites are to dating them. willing to date Whites than also more note 27, at 11. preferred to date only White men, only 6% of Asian-American women and 16% of Latina women preferred to date only of their samemen race. intermarried with Whites in 2010 had a college degree as compared to 49% of all Asian-American all of to 49% as compared Whites in 2010 had a college degree with intermarried adults in the U.S.); P Wang, Wang, And Lin and Lundquist found that raci Lundquist and And Lin ences. supra trade status while partners minorities high-achieving with higher educational and economic minority Lichter, a high school out were as high than when both partners had only than twice more odds of marrying or less.”). Thediploma of recently majority couples (interracialmarried or same-race) share similar a African-Americans education.marry White partner whose and Latinos But when formal levels of theirs, from differs level of education children of immigrants) Latinos/aschildren of immigrants) are almost three times as likely to out as their counterpartsmarry a high school degree (43% v. 16%)); with only Vincent Kang Fu, G than their less-educated counterparts, interracially, Americans sages from Whites sages from above found that the vast the that found above have strong or income, education with races other of women than messages lower Americans as a group have weaker racial preferences. However, online dating online dating However, preferences. racial weaker have as a group Americans Hitsch’s study studies suggest otherwise. 70% of straight Asian-American and Latin and Asian-American 70% of straight and Cynthia by Belinda Robnett ducted their class status for White spouses with higher racial status.their class status for White spouses with higher racial Comment, http://www.pewsocialtrends.org/files/2013/04/Asian-Americans-new-full-report-04-2013.pdf; Qian & colleagues found that college-educated Whites are found that college-educated colleagues to education school high only a more messages than college-educated African-American and Asian-American Asian-American and African-American college-educated than messages more men. 38779-ckt_92-1 Sheet No. 64 Side B 03/01/2017 10:44:39 B 03/01/2017 64 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 65 Side A 03/01/2017 10:44:39 , 115 Online The vast The vast ma- 59 796 (2014). They are most likely to likely They are most 61 ) 2/1/2017) 8:20 PM Caucasian Latina Asian American African American ELETE note 50. D ELATIONSHIPS 60 OT N supra .R O ino/White men) than to messages from messages to than men) ino/White ERS preferences of straight Asian-American of straight preferences were willing to datewere willing to African-American 1-30 (D .&P men were willing to date Asian-American Asian-American date willing to were men n other than their co-ethics. than their n other 63 Patterns of Racial-Ethnic ExclusionPatterns of Racial-Ethnic by Internet Daters nd Asian-Americans prefer Whites to other Whites to other prefer nd Asian-Americans OC . 95, 95 (1995). . 95, Surveys of college students’ dating preferences preferences dating college students’ Surveys of , 31 J., S 81% contacted by online daters. contacted SYCH 62 .P note 29, at 207; Rudder, note 55% note 40, at 12. OC note 36, at 46–48. S DITS AUTHOR WITH CMTS Glenn T. Tsunokai, Allison R. McGrath, K.& Jillian Kavanagh, OF supra E 6% supra Based on Race/Ethnicity Based on supra ROMANTIC DISCRIMINATION AND CHILDREN .J. ACRO Percentage of Latino Men Who 31% Expressly ExcludeDaters Female M URO Ethnocentrism in Dating Preferences for an American Sample: The Ingroup Bias in American Sample: The Ingroup Bias for an Ethnocentrism in Dating Preferences 807, 816 (2011). , 25 E , see generally The graphs below illustrate the Approximately 50%of Asian-American men were willing to date Latina 0% ; 80% 60% 40% 20% The preferences of straight Asian-American and Latino men also reflect a a reflect also and Latino men of straight Asian-American preferences The This racial hierarchy is also reflected in Asian-American and Latina in Asian-American reflected is also hierarchy This racial ALDONADO 64 65 Liu et al., Id. Id. ORCES 100% .F 2017] 5M . OC 63 65. 65. 61. Curington et al., 62. Lundquist, & Lin 59. et Feliciano al., 60. 64. & Cynthia Feliciano,Belinda Robnett groups, including their own co-ethnics. own their including groups, have also found that many Latinos a that many found have also Social Context racial hierarchy. For example, Robnett and Feliciano found that over 60% of of over 60% found that Robnett and Feliciano For example, racial hierarchy. willing to were a racial preference and Latino men who expressed Asian-American women’s response rates when rates when response women’s women and similar numbers of Latino numbers similar and women women. Dating Preferences of Asian Americans overwhelmingly excluded minority me minority excluded overwhelmingly 89 S jority, however, were willing to date White men. White date to willing were jority, however, respond to emails from White men and their multiracial co-ethnics who are part part who are co-ethnics multiracial and their White men emails from respond to Lat and men (Asian-American/White White date White women, but less than 20% than but less White women, date women. and Latino men. their mono-racial co-ethnics. their mono-racial 38779-ckt_92-1 Sheet No. 65 Side A 03/01/2017 10:44:39 A 03/01/2017 65 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 65 Side B 03/01/2017 10:44:39 $PHULFDQ supra >9RO VUHIOHFWD Patterns of VDVOLNHO\WRH[SUHVVO\ VWURQJHUVDPHUDFH ULFDQPHQDQGZRPHQGR QRWHDW± QRWHDW)HOLFLDQRHWDO    30 &DXFDVLDQ /DWLQD $VLDQ$PHULFDQ $IULFDQ$PHULFDQ &DXFDVLDQ /DWLQD $VLDQ$PHULFDQ $IULFDQ$PHULFDQ supra (/(7( supra   )HOLFLDQRHWDO ' 27 1 Patterns of Exclusion Racial-Ethnic 2 25&(6 ϵϮй ) 7KHPDMRULW\DOVRH[SUHVVO\H[FOXGH:KLWHVDV   ' 2& ϳϲй 6   CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW  ϵϬй  5DFH(WKQLFLW\ 5DFH(WKQLFLW\ ϭϬϬй  6RF)RUFHV    ',76:,7+$87+25&076  (  )HPDOH'DWHUV%DVHGRQ QRWHDW5REQHWW )HOLFLDQR )HPDOH'DWHUV%DVHGRQ QRWHDW5REQHWW )HOLFLDQR 0HQ:KR([SUHVVO\([FOXGH  7KHJUDSKEHORZLOOXVWUDWHVWKHVWDWHGSUHIHUHQFHVRI$IULFDQ 0HQ:KR([SUHVVO\([FOXGH $&52 3HUFHQWDJHRI$VLDQ$PHULFDQ  3HUFHQWDJHRI$IULFDQ$PHULFDQ 0  supra supra       :KLOHWKHSUHIHUHQFHVRI$VLDQ$PHULFDQV/DWLQRVDVDQG:KLWH      by Internet Daters 6RXUFH%HOLQGD5REQHWW &\QWKLD )HOLFLDQR $/'21$'2  0 QRWHDW±  

 RYHU 7KDW WV ODVW   GDWLQJ $7,1* $IULFDQ ' LFDQ:KLWH /DWLQRDQG OLNHO\ WR UH DYH WKH VDPH SUHIHUHQFHV RI PHULFDQVZHUH HPRUHZLOOLQJ 1/,1( DWLRQVKLSV ³ RI QRWHDW±  2 more LWHQHVVFDQHOHYDWH 75 LJKWVNLQDQG(XURSH supra & revealed H UHSUHVHQWDWLYH RI WKH HQWLUH &DXFDVLDQ /DWLQR $VLDQ$PHULFDQ $IULFDQ$PHULFDQ (6 5    30  D GDWLQJ VLWH RU DSS DQG  RI (: DQGVL[W\IRXULQFOXGLQJUDFLDOPLQRU  (/(7( RQOLQHDQGRI$PHULFDQVZKRDUH ' 3 KLSWKURXJKWKHVHVLWH´  See User Internet Demographics: Internet 27 1 Patterns of Racial-Ethnic Exclusion 2 SUHIHUHQFHV2QHRQOLQHGDWLQJVWXG\ 8**$1 ' SUHIHUHQFHV WKH  ' stated $(9( stated  QRWHDW /LQ /XQGTXLVW 0  supra 5DFH(WKQLFLW\ QRWHDW 0,7+ 6  KWWSZZZSHZLQWHUQHWRUJGDWDWUHQGLQWHUQHWXVHODWHVWVWD  0DOH'DWHUV%DVHGRQ 75  6RF)RUFHV    supra ',76:,7+$87+25&076 (  & $521 ROMANTIC DISCRIMINATIONAND CHILDREN 3HUFHQWDJHRI$IULFDQ$PHULFDQ :RPHQ:KR([SUHVVO\([FOXGH (6 5 $&52 0 (:    KWWSZZZSHZLQWHUQHWRUJRQOLQHGDWLQJUHO     3  'DWHUV¶ SUHIHUHQFHV IRU PXOWLUDFLDO SHUVRQV ZKR DUH SDUW :KLWH DW&XULQJWRQHWDO PRUHOLNHO\WRFRQWDFW:KLWHVWKDQ:KLWHVZHUHWRFRQWDFWWKHP 7KHVH VWXGLHV GHPRQVWUDWH DQ XQGHQLDEOH UDFLDO KLHUDUFK\ LQ WKH Love ance, and the value all races place on light skin on women, it is not surprising that it is not surprising women, skin on races place on light value all the ance, and the in higher are women lighter-skinned portrayals of and media masculinity. assumptions about African-American women as emasculating, domineering, and and domineering, women as emasculating, African-American about assumptions men as dangerous. African-American angry and cultural depictions of Bl depictions cultural women. angry emasculating, or sexually immoral, tronly caregivers, beginning portray African-A to beginning “thugs”). hyper-feminine, Asian-American men men Asian-American hyper-feminine, African-American men are depicted as hyper-masculine. as are depicted men African-American 38779-ckt_92-1 Sheet No. 67 Side B 03/01/2017 10:44:39 B 03/01/2017 67 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 68 Side A 03/01/2017 10:44:39 , 121 LACK LACK Felici- -B DOPTION See See gener- A ON EYOND THE note 100, at note 100, /N B Erica Morales, AND AND , supra See LACK val if they val if they mar- IVING B L as a reason to ex- a reason as EW EW dchildren, and also dchildren, N DENTITY 283, 285 (2006). (2006). 285 283, ,I MERICANS ) 2/1/2017 8:20 PM 2012)); Jennifer Lee & Frank D. 2012)); Jennifer Lee & A d be discriminated against if d be discriminated AND THE EMINISM , 50, 60–62 (2000). , ARRIAGE ELETE Y ’ SIAN D The frequency of these concerns ericans and Latinos/as were and Latinos/as were ericans A terracial relationships confirm the confirm relationships terracial OC ,M note 10, at 39; Morales, OT SIANS 98 The White Man’s Pornogra- The White Gonzo Burden: N EX They express fear that society will that society will fear They express J. L. & F O ,A “I Am Not a Racist But “I Am Not a Racist . . White Mapping .”: and societal disappro and societal tina students were significantly more more were significantly tina students in general would not approve if they would not in general :S oval from family members and society and society members family oval from of status. One study found that Latino found that of status. One study te social disapproval te social disapproval 101 ALE press concern that parents, friends, and friends, parents, that concern press with African-Americans even before their even with African-Americans 1-30 (D note 36, at 46–48. note 36, ATINOS ATINOS AND en and mixed-race gran mixed-race en and 95 Gail Dines, , 18 Y , These concerns are not unfounded. Interracial Interracial not unfounded. These concerns are :L , Discourse & S ?: L NTIMACIES 99 supra I See 316 (Lourdes Torres, ed., ( 316 (Lourdes HITE IDDLE W M S Another study of White college students’ racial atti- racial college students’ White of study Another I TUDIES 96 S HO ACIAL 100 Althoughexpressly not stated always or acknowledged, note 100, at 316. Interestingly, Asian-Am Interestingly, NTERRACIAL DITS AUTHOR WITH CMTS rove and they feared they they feared rove and woul R note 73, student’son African-American comment at 209 (reporting female note 73, at 207. note 73, at 207 ,W E The Rise of Intermarriage, supra ,I ROMANTIC DISCRIMINATION AND CHILDREN HE ATINO 102 97 supra ,T ACRO supra supra supra ANCEY M Y . 225 (2004). 221, note 73. 10:3 L ENNEDY RIEN note 36, at 49. Pornography sites are filled of interracial sexual activity 49. Pornography with images note 36, at K 96 (2008); Feliciano et al., OC in Morales, , O’B .S supra EORGE Many collegestudents in California the public university study expressed Parents’ objections to their children’s in children’s their to objections Parents’ supra EV ALDONADO IVIDE See D 70 (2003); Wang, Wang, 70 (2003); .R 2017] 5M ILEEN ANDALL America’s Changing Color Lines: Immigration, Race/Ethnicity, and Multiracial Identification Multiracial Immigration, Race/Ethnicity, and Lines: Color America’s Changing R NN 98. students with White of 10% only but Latinos, of 39% percent of Asian-Americans, Fifty-five 99. Bany et al., 96. Bany et al., 95. Bany et al., 97. Eduardo Bonilla-Silva & Tyrone A. Forman, 100. Family coupleexpress concern that the interracial members will face societal disapproval and 102. 101. G IVIDE ACIAL phy and the Construction of Black Masculinity of Black phy and the Construction men as well-endowed and sexually gifted. as well-endowed and sexually gifted. men between dark-skinned Black men between dark-skinned Black and White reflecting and reinforcing the stereotype of Blackmen women, who prefer very tall and masculine men, have strong preferences for African-American men. preferences for African-American men, have strong men. who prefer very tall and masculine ano et al., men’s “attractive skin color and body type.”). Small specifically percentages of White women, women Young Adults Young Parental Messages Concerning Latino/Black Interracial Dating: An ExploratoryParental Messages Study Among Latina/o expressed racial preferences listed social disapproval as a reason for excluding African-Americans. African-Americans. as a reason for excluding expressed racial preferences listed social disapproval Bany et al., significantly more likely than Whites to ci Whites likely than more significantly partners. as romantic African-Americans clude concern that family members and society and society members that family concern dated African-Americans. ally (2004). Bean, 30 A D R that they are threatening and dangerous, these are also traits that some straight straight that some also traits are these dangerous, and threatening are that they men)gay (and women appealing. find parents also fear their own potential loss potential loss their own fear also parents parents express disapproval of intimacy of intimacy disapproval express parents racial hierarchy apparent in the dating market. Asian-American, Latino, and White White and Latino, Asian-American, in the dating market. apparent racial hierarchy African- intermarrying with to their children all express greater objections parents other groups. to compared as Americans discriminate against their adult childr adult against their discriminate couples face greater opposition and disappr greater opposition and couples face than same-race couples. than same-race 320; E ried interracially. tudes similarly found that they feared family feared found that they tudes similarly likely than their male counterparts to ex counterparts male likely than their disapp strangers would varied by gender. Asian-American and La and gender. Asian-American by varied men. they dated African-American that neighbors, teachers, and strangers will treat them and their offspring differently. them that neighbors, teachers, and strangers will treat and their offspring College Students’ Racial Ideology in the USA express concern about the racial identity and psychological well-being of mixed- identity and psychological well-being racial the express concern about race grandchildren. 38779-ckt_92-1 Sheet No. 68 Side A 03/01/2017 10:44:39 A 03/01/2017 68 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 68 Side B 03/01/2017 10:44:39 , : : 12 , 7 See INE HITO L supra C ORLDS ABELS EARTS (1995); (1995); White White L H W [Vol 92:1 107 OLOR 109 RICA UR C O TATES THNIC OCIAL S S ,E HEIR NITED T U 141–43 (2013). BOLER Suzanne C. Miller et al.,Suzanne C. 58 E (2000); O 71–2 (2002); K. Ho Arnold relationships between relationships so depends on the race on the race depends so CCORDING TO RIPPING ON THE note 101, at 54 (some note 101, at 54 (some Latino 60 (2001). 60 (2001). AMILY ORLD ,A ,T ) 2/1/2017 8:20 PM F W see also UZANNE supra S OUPLES AND ILLIG 341–346, 353 (1995); 353 341–346, Morales, , ELETE C ARRIAGE Understanding the Mark: Race, Stigma, Understanding the D TEREOTYPES -W ALMAGE S M IVIDED relationships reflect not only a ra- reflect not only relationships OT RIEN ite parents are similarly concerned D Social Structural and Psychological Corre- Psychological and Social Structural experience greater objections from from objections greater experience compared to relationships between between relationships to compared D N HITE In fact, a 2005 Gallup poll found that that poll found Gallup 2005 In fact, a O ULTIRACIAL RESENTATION IN THE O’B /W M and fear that a child’s relationship with an Afri- and fear that a child’s )P men dating minority women or minority or minority women minority dating men 108 partner but also the gender. Families are are gender. Families but also the partner , E NWUACHI see pproval when daughters (as compared to (as compared daughters when pproval EATHER O 1-30 (D merous commentators have noted greater greater noted have commentators merous ELATIONSHIPS (R LACK . and that Whites 492, 492 (2011) (noting minorities ACIALLY NTERRACIAL R .R R.A. Lenhardt, :B ELATIONS AND :I . 803 (2004); 803, R SYCH terracial relationships al relationships terracial ERS at 328; AW OF THE see NGELA EV 354, 355 (2004). 355 (2004). 354, American man dating a White woman. White a dating man American L .P . 591 (2009) Id. Families on the Color-Line: Patrolling Borders and Crossing Borders Color-Line: Patrolling Families on the EL ORDERS Latino parents are similarly more likely to express more likely to express similarly Latino parents are OC .&P OLITICS OF EL R ROWN B n-Americans and Whites to Whites and n-Americans P R OC -B For example, White women in interracial relationships relationships in interracial White women For example, CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW &S EVOLUTION 106 AMILIES IN A R The PerceptionsSpace between Us and Them: Differences, of Status 139, 156 (2002); H 139, 156 (2002); F S 105 ’ LACK Y DITS AUTHOR WITH CMTS ’ 104 E , 12 J., S ., B OVE note 100, at 328. note OC NTERGROUP , 78 N.Y.U. L. R I note 104, at 60; A NTERRACIAL note 104, at 60 (Root concluded that women’s status is influenced by her status is influenced by her note 104, at 60 (Root concluded that women’s male NTERGROUP ,L note 5. I ACRO &S ERSONALITY daughters (as compared to sons) date African-Americans. date to sons) (as compared daughters M &I HINELANDER AND THE supra OOT ULTIRACIAL R supra supra DENTITY AND THE Other studies haveOther studies foundWh that note 100, at 325. They also assume they must distance themselves from African- from themselves distance they must They also assume note 100, at 325. ACE supra .R M , , :I at 327–28. Latinos, including immigrants with African ancestry, are aware of African- 103 ARIA OOT OOT , 5 R INDIOLA ET AL , 100 J., P Societal disapproval of in Societal disapproval AVIGATING ALDONADO HITE IVES Kimberly Kahn et al., supra Id. ROCESSES M ROCESSES AND L P P ,N -W Parents’ objections to children’s interracial children’s to objections Parents’ 122 5M Evidence for Hypodescent and Racial Hierarchy in the Categorization and Perception of Biracial and Perception Racial Hierarchy in the Categorization Evidence for Hypodescent and 104. M 106. R 103. 107. Morales, 109. Jones, 105. M. Belinda Tucker & Claudia Mitchell-Kernan, 108. R ROUP ROUP HILDS HINELANDER V LACK ATINO ATCHO contrast, men’s status is not tied to their female partner’s status is not tied to their female status); contrast, men’s sons) date or marry out. sons) date or marry much more likely to express strong disa strong to express likely more much cialized hierarchy, but also a gendered one. Their reactions to the relationship relationship to the reactions one. Their a gendered but also cialized hierarchy, child’s of the race on the only not depend Perceived Reactions to Interracial Romantic Relationships: When Race Is Used as a Cue to Status Is Used as a Cue to Race When Relationships: Perceived Reactions to Interracial Romantic G partner’s status so family members are concerned when they partner with men of lower racial status. In are they partner with men members concerned when family partner’s status so T while 72% of Whites approve of a White man dating an African-American woman, woman, Whitean African-American dating approve of a while 72% of Whites man African- of an approve 65% only agree that “Whites have the highest social status, followed by Asians, Latinos, and Blacks.”); social status, followed by Asians, Latinos, and Blacks.”); agree that “Whites have the highest generally G R B men dating White women. dating men experience greater disapproval than White than disapproval greater experience African-American women and White men. and women African-American and gender of and gender of the Nu spouse. minority both Africa from objections as and White women men African-American adults refuse to date African-Americans for the same reasons). Americans to achieveAmericans social mobility. C 69 (2005). children start dating because they fear jeopardizing the family’s status in the racial in the status family’s the fear jeopardizing they because start dating children hierarchy. and Equality in Context Americans’U.S., stigmatized status in the opposition when women married to Asian-American men also men to Asian-American married women about the loss of status for the family, especially when the child marries an Afri- marries when the child the family, especially for loss of status about the partner. can-American note 100, at 328; Erica Chito Childs, note 100, at 328; Boundaries L lates of Interethnic Dating et al., Individuals can-American partner will jeopardize higher racial the status Latinos enjoy (or believe they enjoy). Morales, 38779-ckt_92-1 Sheet No. 68 Side B 03/01/2017 10:44:39 B 03/01/2017 68 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 69 Side A 03/01/2017 10:44:39 123 114 SIAN A 4 (2010), 4 (2010), Societal dis- 4 (May 2013), 4 (May . 10 (2016), AMILIES 115 F EP ntly by education. ihood of marrying ihood of marrying ESIRE AMONG HILDREN D EW EW UREAU C N B .R ng down laws denying ng down laws AND note 112, at 4. TAT S fered significant legal and legal significant fered Asian-Americans have the lowest ) 2/1/2017 8:20 PM , ISE OF ENSUS Id. R supra than women with lower levels than Brady Hamilton et al., Births: Prelimi- ELETE oups least preferred by online online by preferred oups least OWER D FFECTS ON ITAL See es vary significa es vary OT ,P V N ’E O ,U.S.C OVE decisions striki or to single-parent households, in the in the households, single-parent or to all, of the legal disabilities have been been disabilities have all, of the legal L Social and Economic Characteristics of Current- ’ resources. The next section will briefly next section will briefly The resources. arriage, but their likel but their arriage, Id. :L AT 1-30 (D ARRIAGE AND s. Despite these changes, non-marital chil- non-marital changes, Despite these s. M and are also more likely than women of other other of likely than women and are also more Shattuck & Krieder, s enjoyed by marital children.s enjoyed by marital OMANCE has also decreased as children are increasingly increasingly are as children decreased has also 113 R REFERENCES non-marital children suf non-marital P Illegitimate Harm: Law, Stigma, and Discrimination Against Stigma, and Discrimination Illegitimate Harm: Law, . 345, 347 (2011) (discussing cases). ECLINE OF EV D ACING Id. See also Id. See They are also significantly less likely to have children have to are also significantly less likely They HE ,R .L.R 6 (2009) to Asian White married men that found study (One ethnographic However, African-American women are much less likely to are much women African-American However, DITS AUTHOR WITH CMTS 110 E iscrimination and perpetuate social distance between groups. distance between social and perpetuate iscrimination 111 LA ., T ROMANTIC DISCRIMINATION AND CHILDREN 112 OMANTIC TR ACRO EMOTO OUPLES , 63 F , M N .C C II. R ES R Solangel Maldonado, Solangel Maldonado, HITE Rachel M. Shattuck & Rose M. Kreider, UMIKO EW EW Marriage rates and non-marital birth rat non-marital and Marriage rates /W ALDONADO See See Racial preferences are problematic for many reasons. They undermine our undermine They reasons. for many problematic are Racial preferences For most of U.S. history, history, U.S. of For most 2017] 5M 111. P 112. 110. K 115. 113. as compared to have never been ages thirty-five to forty-nine married women 14% of White 114. 70% of approximately 2008, since birth rate declining has been non-marital Although the MERICAN http://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_03.pdf. 29% of children born to White mothers andmothers born to White of children 29% http://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_03.pdf. in 2015 were to Latina 53% of children born non-marital. mothers births. of non-marital (16%) rate friends and neighbors about their choice of mate.). ly Unmarried Women with a Birth: 2011 Recent While two-parent households are not superi are households While two-parent approval of non-marital families approval of non-marital raised by cohabitating or single parent single or raised by cohabitating Nonmarital Children A both the White and Asian-American communities women than Asian-American the White communities both Asian-American and races to have non-marital children and to raise them households. in single-parent them raise and to children non-marital races to have http://www.census.gov/prod/2013pubs/acs-21.pdf (finding that non-marital birth rate for college- birth that non-marital (finding http://www.census.gov/prod/2013pubs/acs-21.pdf witheducated women to 57% for women was less than 9% as compared less than a high school diplo- ma). commitment to anti-d commitment marry than women of other races of other marry than women outside of marriage. of outside women could not recall any instances of public discrimination against them because of their relation- against them public discrimination recall any instances of could not women ship. In contrast, White women to Asian-Americanmarried reported from negative comments men http://www.pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-new-families/. societal discrimination. Most, although not although Most, societal discrimination. eliminated as a result of U.S. Supreme Court Supreme U.S. as a result of eliminated right the same children non-marital describe these relative disadvantages. relative these describe United States children raised by single parents are less advantaged in myriad ways, ways, in myriad are less advantaged by single parents raised United States children has financial single-parent the when even 43.6% of African-American women age. of the same married to White men. White married to at all and raising a childwithout a co-parent. daters—African-American women and Asian-American men—are also the groups the also men—are and Asian-American women daters—African-American erences not only affect their rate of interm They also affect marriage outcomes. The two gr two The outcomes. marriage affect They also children born to African-American mothers are non-marital. nary Data for 2015, in 65.3 N 65.3 2015, in Data for nary of formal education. formal of College-educated women are more likely to marry more are women College-educated with the lowest rates of intermarriage. For African-American women, racial pref- racial women, African-American For rates of intermarriage. with the lowest 38779-ckt_92-1 Sheet No. 69 Side A 03/01/2017 10:44:39 A 03/01/2017 69 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 69 Side B 03/01/2017 10:44:39 . M are are A UTURE 121 HILDREN [Vol 92:1 note 111, at 6. They 17 (2010) 17 (2010) C 3 (2007), 3 (2007), NNALS ONMARITAL , 25 F , Id. ARRIAGE AND supra underachieve underachieve Second, non- M ., , 621 A , S TR HILDREN MPACT 122 I UTURE OF C 116 .C :A ES (June 10, 2016), 2016), 10, (June R Non-marital African- Non-marital , 20 F , 15–16 (2008) (reporting that OCIAL EW EW S ., RL34756, N 118 P ually every measure, with measure, ually every UTURE OF There is a Single Mother Hierar- ) 2/1/2017 8:20 PM EHAVIORS OST ERV sapproval. The majority of The majority sapproval. S ,B unmarried women should not not should women unmarried BOUT ELETE , 20 F D A See also levels of stigma . . . vary according to the .P OT ALUES NTERVENTIONS N I Numerous studies have shown that that shown have studies Numerous V O ASH at 50. Interestingly, participantsmost (67%) they will rely on public assistance for on public assistance they will rely Cohabitation and Child Well-Being Cohabitation ESEARCH 120 Id. uding parental support for college, intes- for college, support parental uding ntinues to places heavier burdens on non- burdens heavier places to ntinues OLICY home or with cohabitating parents or with cohabitating home 1-30 (D P ONCERNED AP IN .R ,W C G Kimberly Seals Allers, Kimberly married parents to be poor, parents married ONG at 8–9. More men (73%) thanat 8–9. More men (60%) believe that women disadvantaged in virt in disadvantaged UBLIC P Id. African-American are less likely than women mothers of other ,C see also AND Fragile Families and Child Well-Being Fragile Families and Child Id. Wendy Manning, Manning, Wendy UBLIC IS , CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ENERATION EARS Fragile Families and the Reproduction of Poverty Fragilethe Reproduction Families and -F See at 5 wrong and (59% believe that unmarried women children is having ,P ,G cant social problem and that problem cant social DITS AUTHOR WITH CMTS note 115, at 367–71. 62, 65 (2000) (noting that “[t]he 62, 65 (2000) (noting that Id. EASONS E Y PART ’ ,R Doing the Right Thing? Single Mothers by Choice and the Struggle for Legiti- Struggle the and by Choice Mothers Single Doing the Right Thing? A ENTER . 111 (2009). 111, OLOMON OC supra Although the majority of non-marital children do not receive not children do Although of non-marital receive the majority ACRO S CI M .C .S Parental Relationships in Fragile Families &S RENDS RIFT ES 117 119 D OC R :T 51, 51 (2015). However, studies show that “stable cohabiting families with two biological with two biological families 51, 51 (2015). However, studies show that “stable cohabiting Jane Waldfogel et al., at 349. ARMEN ENDER EW EW .&S Non-marital children are are children Non-marital ALDONADO See Id. P OL 124 5M . .P , 14 G , HILDREN 120. 122. C 119. Jane D. Bock, C 118. Maldonado, 116. 117 121. of non- to cohabiting parents, the children are born majority non-marital of Although half CAD HILDBEARING ARENTHOOD concerned-about-social-impact/ that the increase in non-marital (71% of participants stated births is a were more accepting of divorce than non-marital childbearing. childbearing. were than non-marital acceptingmore of divorce tate succession, and paternal transmission of U.S. citizenship. transmission paternal and tate succession, consequences that extend into adulthood. that extend into consequences “big problem” for society); divorce rather staying together. are better off when unhappy parents thought that children 66% believe that “[s]ingle having children” women bad for society). Although is African- Latinos and birth rates than whites, they are almost as have high non-marital Americans likely as whites to believe childbearing is wrong. that non-marital Americans, including African-Americans and Latinos, believe that non-marital believe that non-marital and Latinos, African-Americans including Americans, marital children continue to experience societal di experience continue to marital children races to be living with the child’s father at birth and are less likely than other groups to ever marry the to ever marry less likely than other groups are at birth and father with the child’s races to be living father. parents seem to offer many of the same health, cognitive, and behavioral benefits that stable health, same of the marriedparents seem to offer many provide.” biological parent families 87, 91 (2010); Sara McLanahan, (2010); 87, 91 at 2 (finding that 69% of study participants “say the trend toward more single women having children is “say single having 69% of study participants theat 2 (finding that trend toward women more bad for society, and 61% say that a child needs both and father to a mother grow up happily.”). C marital children in a number of areas, incl of areas, number in a marital children P dren are disadvantaged relative to their marital counterparts in many ways. First, as ways. in many counterparts marital to their relative disadvantaged are dren the law co work, prior in described I have A http://www.pewsocialtrends.org/2007/07/01/as-marriage-and-parenthood-drift-apart-public-is- is bad for society. having children single women OF marital parents are not romantically involved by the time the child is five years old. Sara McLanahanmarital parents are & involvedfive not romantically by the time is the child Beck,Audrey N. class, race, and age of the mother.”); class, race, and age of the mother.”); chy, and It Needs to Stop It chy, and https://www.washingtonpost.com/news/parenting/wp/2016/06/10/the-single-mother-hierarchy/. American children face greater disapproval than White children, especially when when especially White children, than disapproval greater face children American poor. they are (cohabiting parents are likely(cohabiting parents thanmore education, parents and to to be poor, have less formal married instabilityexperience family (breakups fertility) which strongly associated with is and multi-partner for children). poorer outcomes their support which contributes to their stigmatization. to their contributes which their support government benefits, society presumes that presumes society benefits, government children who grow up in a single-parent up grow who children childbearing is a signifi childbearing have children macy more likely than children raised by raised likely than children more 38779-ckt_92-1 Sheet No. 69 Side B 03/01/2017 10:44:39 B 03/01/2017 69 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 70 Side A 03/01/2017 10:44:39 , 125 9, 10 9, ,U.S. UTURE or as as or Y ’ ANDEFUR OL tab.C3 (last S 124 ii-iii (1995), , 20 F , Indeed, the Indeed, L.J. 1236, 1252 1252 1236, L.J. They are also also They are ARY AGES 126 UREAU W ALE B at 8 (concluding that at 8 (concluding that NTERGENERATIONAL 123 I .U.J.L.P &G id. HE EVEL ASH ENSUS ,T , 119 Y , -L C ABOR ) 2/1/2017 8:20 PM 87–88 (1994) (“[W]ith respect to 87–88 (1994) (“[W]ith , 24 W , NTRY ANAHAN 9pubs/p60-237.pdf (reporting that (reporting 9pubs/p60-237.pdf N.E.2d 941, 956–57 (Mass. 2003) N.E.2d 941, 956–57 L E L ,U.S. . 35, 63 http:// (2007), C T T ’ With of possible the exception ’ ELETE M ELPS EP D NF H parents may reduce these risks, risks, reduce these parents may 127 E kely to be raised in single-parent single-parent be raised in kely to OT N at 373–74. ARA HAT om their children at alarmingly high at alarmingly their children om O S See also Support: and Child Families Minority Families and Living Arrangements: America’s Families and Living Arrangements: Id. ,U.S.D d the legal benefits it grants to married to married grants it benefits d the legal ,W Father Absence and Child Well-Being: Father Absence and ChildA Critical Well-Being: TTAINMENT AND 1-30 (D UPPORT ONAN A URTS S Disestablishing the Family Parental Relationships in Fragile Families Fragile Parental Relationships in R H note 124, at white 66% of in 2002, 3–4 (finding that see also ICK 116, 120–21 (Daniel Patrick116, 120–21 et al., Moynihan eds., 2004); HAT support order as compared to only 43.5% of never married to as compared 43.5% of never order only support supra HILD &N :W C these outcomes disproportionately affect African- affect disproportionately these outcomes fewer resources—rather than growing up in a home a home growing up in than resources—rather fewer AMILY DUCATIONAL F E Custodial Mothers and Fathers and Their Child Support: 2007 Support: Child and Their Fathers and Custodial Mothers ARENT OF 128 P ROGGER DITS AUTHOR WITH CMTS note 115, at 372–73 (discussing studies). (discussing studies). note 115, at 372–73 Family Structure, Children and the Law Family Structure, Children and the G E . ROMANTIC DISCRIMINATION AND CHILDREN Goodridge v. Dep’t of Public Health, 798 Goodridge v. EFF FF INGLE J supra ACRO S M note 115, at 372, n.167. Of course, the n.167. majority of childrennote 115, at 372, raised in single-parent See 6–8 (Nov. 2009), http://www.census.gov/prod/200 2009), 6–8 (Nov. UTURE OF THE ,O F While a close relationship with both relationship While a close see also 17 (2010) (By the time the child is five years old, only 51% of unmarried fathers17 (2010) (By the time visit at the years old, only 51% of unmarried child is five Timothy S. Grall, ATHERLESSNESS ON HE supra Researchers cannot completely explain the reasons for these poorer out- these for reasons explain the completely cannot Researchers Alice Ristroph & Melissa Murray, F T 129 UREAU ALDONADO See B in 125 See , 2017] 5M 130 HILDREN C 125. they are less likely For example, to to receive help with for a house, or the down payment 127. Vivian Hamilton, 126. Maldonado, 124. 128. tend to have families in single-parent that while whites and Latinos raised found One study 123. Sara & Sigle-Rushton McLanahan, Wendy 129. Enforcement, Child Support 130.Beck, N. Audrey Sara McLanahan & ROWING UP WITH A ENSUS FFECTS OF receive an inheritance the from father or paternal grandparents. most responsive to divorced parents andmost least responsive to never-married parents”). raised by married poor outcomes. parents to experience children in single parent homes may acquire more education than African-American children living education than African-American acquire more homes parent may children in single with both parents. (describing the numerous federal and(describing the numerous state benefits available to married couples). C www.acf.hhs.gov/programs/cse/pol/DCL/2007/dcl-07-43a.pdf (finding the “child support process is the “child support (finding www.acf.hhs.gov/programs/cse/pol/DCL/2007/dcl-07-43a.pdf comes, but many argue that but many comes, disadvantages. of these the source parents—are married with two law’s preference for marital childbearing an childbearing marital for preference law’s couples may explain the differences in outcomes. in differences explain the couples may academic achievement, academic http://www.bls.gov/osmr/pdf/nl950080.pdf; http://www.bls.gov/osmr/pdf/nl950080.pdf; American and Latino children who are more li more who are Latino children and American families. dren in single-parent families livedren in single-parent families with their mother. Families and Living Arrangements: 2013: Children (C table series) Families and Living Arrangements: 2013: Children (C 62.8% of divorced parents had a child 62.8% of divorced child support order receivedparents and 51.2% of divorced parents with a owed as the full amount parents); married of never to less than 40% compared Data Analysis Maldonado, likelyare than children but, as a group, they more do not experience these negative outcomes homes E in 2007, 41% of women with non-marital children had incomes below level but incomes 19% the poverty children had only with non-marital women of in 2007, 41% above $50,000). had incomes academically, become teen parents, abuse drugs, engage in delinquent behavior, behavior, in delinquent drugs, engage parents, abuse teen become academically, wages as adults. earn lower and problems, behavioral experience (2010) (noting that the “law channel[s] individuals the “law channel[s] that (2010) (noting . . . into marriage coupled and from into marriage, parenthood.”); than children raised attainment lower levels of educational by married parents, African-American less likely toless likely as children financial support or receive attend college OF divorced and non-marital fathers disengage fr fathers disengage non-marital and divorced rates. adults. educational achievement, father absence has the most harmful effects among Hispanics and the least effects among harmful father absence has the educational achievement, most effects among Blacks.”). harmful G (2007); (2007); least once a and one-third have no contact with their children atmonth all). The vast of chil-majority Review mothers but only 48% of African-Americanmothers had mothers child support orders); the difference in child support rates is “largely due to racial and ethnic family differences.”). formation 38779-ckt_92-1 Sheet No. 70 Side A 03/01/2017 10:44:39 A 03/01/2017 70 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 70 Side B 03/01/2017 10:44:39 UT P AMILIES [Vol 92:1 F OMEN 300 (2011); W children are children (July 14, 2012) 2012) 14, (July RAGILE OOR ,F P st disadvantaged st disadvantaged IMES are disproportion- es experienced by by es experienced no children. These These no children. HILDHOODS HY marital C and lack of access to to and lack of access :W ssful individuals marry ssful individuals NIVERSITY 134 ”, N.Y. T EEP U ) 2/1/2017 8:20 PM e inequality between mari- between e inequality K NEQUAL in poor and minority neigh- minority in poor and 75, 8275, (2005). haves versus have nots have along versus haves ,U sirable neighborhoods. Given sirable neighborhoods. AN ELETE D HILD IC C OT RINCETON AREAU N P 133 the most privileged, as their mothers mothers privileged, as their the most ential disadvantag ential O in their children. In college- contrast, focus only on the focus only on mo ether it is worthwhile to explore how to explore worthwhile ether it is See ass individuals (who ass individuals es on the dating market for college- market dating on the es and successful partners, leaving low- partners, and successful ROMISES easingly postpone orforego but marriage UTURE OF ources in their children than prior genera- prior than ources in their children 1-30 (D can-American and Lati can-American ,P , 15 F , EFALAS and to reside in de in reside and to Two Classes, Divided by “I Do K as highly educated and succe as highly educated system thatsystem children fails note 24, at 84–89; A. L 109 (2005). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW d have created a divide of a d have created ARIA The Impact of Family Formation Change on the Cognitive, Social, and Cognitive, on the Family Formation Change The Impact of supra , http://www.fragilefamilies.princeton.edu (last visited Sept. 28, 2016). DITS AUTHOR WITH CMTS , ntly fewer advantages. I contend that it is. When we exam- is. When it that I contend ntly fewer advantages. create “fragile families.” create “fragile E &M ARRIAGE As a result, single and cohabitating parents are disproportion- cohabitating parents As a result, single and AHN Assortative mating has magnified th has magnified mating Assortative M TUDY DIN ACRO S 131 E M &C 132 EFORE B Paul R. Amato, ELLBEING ATHRYN ARBONE ALDONADO See K W The number of children affected by racial preferences in the dating and mar- dating and in the racial preferences by children affected of number The 126 pot to the solution is not the Marriage 5M While the class inequality exacerbated by exacerbated While the class inequality this is troubling, mating assortative HILD 134. 133.Well-Being” and Child The “Fragile Families non-marital, tracked 5000, primarily study 132. C 131. OTHERHOOD non-marital and disproportionately Afri and disproportionately non-marital riage market is small as compared to the number of African-American children in children African-American of number as compared to the is small riage market as sociologist Andrew Cherlin has stated “[i]t is the privileged who are marrying and marrying helps and marrying marrying who are Andrew Cherlin has stated “[i]t is the privileged as sociologist stay privileged.”them Jason DeParle, Emotional Well-Being of the Next Generation i-do.html?_r=0). M &C updated Nov. 6, 2014), http://www.census.gov/hhes/families/data/cps2013C.html (85% of children (85% of children http://www.census.gov/hhes/families/data/cps2013C.html 2014), 6, updated Nov. and have children with highly educated with children have and to individuals income tal and non-marital children tal and non-marital disadvantages are the result of social inequality, lack of resources, residential seg- residential resources, lack of result of social inequality, are the disadvantages educational an regation, and (quoting Andrew Cherlin), http://www.nytimes.com/2012/07/15/us/two-classes-in-america-divided-by- Cherlin), (quoting Andrew large U.S. cities. 1998 to 2000 in children born from Essay focuses on the racial inequality created by preferences in the dating and dating and racial inequality created in the on the by preferences Essay focuses it focus Consequently, market. marriage educated African-American women since their children are most affected by racial by racial affected most are children since their women African-American educated ine opportunities for children, we should not we should for children, ine opportunities adequate schoolsneighborhoods—problems and safe that will not be remedied by in the romantic marketplace. preferences eliminating racial These children are amongst families.” “fragile ask wh might one privilege, their relative so many when opportunities resources and their access to limit racial preferences significa have children are college-educated and likely to be financially stable. These children are also are stable. These children likely to be financially and are college-educated likely to attend quality schools living with only one parent lived with their only). mother ately poor and have few resources to invest to invest resources few ately poor and have until they are financially and childbearing postpone marriage individuals educated res more group invests latter stable. This tions ever have. tions ever increasingly significant an significant increasingly cl working and lines. Low-income marital ately African-American or Latino/a) incr borhoods.Yet, the advantages opportunities and available to preferences in the marriage market. While racial preferences may also disad- may While racial preferences market. in the marriage preferences are their children mothers, African-American of low-income children the vantage not childbearing. much more disadvantaged more much instability, by poverty,family 38779-ckt_92-1 Sheet No. 70 Side B 03/01/2017 10:44:39 B 03/01/2017 70 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 71 Side A 03/01/2017 10:44:39 127  OVE L . 132, OW OW CAD . J. 16 10, H ENEFITS OF .A OC B S M A PEN family incomes incomes family ealthier neighbor- However, minority minority However, , 2 O NTIMACY OR I ALUE AND NNALS OF V 138 on marriage as a tool for for as a tool on marriage children from taking ad- taking from children EE EE S 621 A 621 ) 2/1/2017 8:20 PM all in , ELETE BEDIENCE TO OMEN D O arly, it is troubling if children of of arly, it is if children troubling OT Whites live in w .W N ically been a mechanism for wom- for ically been a mechanism ROM O TR 13 (2011); Nat’l Center for Education Statistics :F New Marriages, New Families: U.S. New Marriages, New Racial and Historically, marriage has not provided has not provided marriage Historically, some children have opportunities to at- opportunities have children some .C s, economic resources, and intergenera- resources, economic s, enjoy significantly higher enjoy significantly Romantic Unions in an Era of Uncertainty: A Post- Uncertainty: an Era of Romantic Unions in ES INDS 1-30 (D 136 For example, in 2010, the median family family median in 2010, the example, For F R ISTORY ite marriages tend to enjoy greater access to access tend to enjoy greater ite marriages ed to $60,000 for White/White couples and $62,000 for $62,000 couples and for White/White ed to $60,000 This remains true today, as African-American as African-American today, true This remains EW EW as were 66% of those who earned a Bachelor’s degree) ,AH URVEY 137 . interracial families living in white/Asian 1, had 23 (“Children ,S Asian-Americans who intermarried with Whites Whites who intermarried with Asian-Americans obtain a post-graduate degree. obtain a post-graduate ess barriers that prevent prevent that ess barriers ULL Even today, some women rely rely women some today, Even ARRIAGE .B RONTS 139 F 135 ,M OP DITS AUTHOR WITH CMTS E OTH ROMANTIC DISCRIMINATION AND CHILDREN note 10, at 6; One study of the three largest groups—Mexican- Latino 243 (2005). B , 60 P , note 10, at 6. White/Asian newlyweds of 2008 through 2010 had median com- had 2010 median of 2008 through note 10, at 6. newlyweds White/Asian OONTZ ACRO C M supra AG ON supra Sharon M. Lee & Barry Edmonston, L ARRIAGE M EN TEPHANIE ALDONADO Minority women who intermarry with who intermarry Minority women ;M see also 2017] 5M The children of White/non-Wh The children of In the United States, marriage has histor States, In the United marriage 140 139. Wang, 138. P Parker, & Kim Wang Wendy 136. of rates becausemarital the vast majority This Essay focuses on women’s children in single- 137. Tucker, & M. Belinda Linda M. Burton 135. S 140. Wang, ONQUERED OLLEGE Americans, Cuban-Americans, and Puerto Ricans found that for all three groups, members groups, who inter- for all three members found that Cuban-Americans, and Puerto Ricans Americans, withmarried Whites enjoyed higher financial resources in. Xuanning than counterparts who Fu, married of U.S. Born Hispanics Marital Assimilation and Family Financial Resources Hispanic Intermarriage https://nces.ed.gov/fastfacts/display.asp?id=72 Americans (reporting that 71% of African awho earned Master’s degree in were women 2009-2010 (2009); (2009); 143 (2009). earned higher combined incomes than all other couples—same-race or interra- couples—same-race than all other incomes combined higher earned cial. parent households reside with their mothers. Moynihan Perspective on African-American and Marriage Women C C children but should also addr also but should children tend superior schools because of theirbecause schools tend superior Simil race. vantage of opportunities available to a select few. For example, it is not enough for it is not few. For example, a select to available opportunities of vantage schools if to attend adequate all children women are twice as likely as their male counterparts to graduate from college and graduate from counterparts to as as likely their male are twice women to three times as likely almost these economic benefits to African-American women who married African- who married women African-American to benefits these economic hoods and are more likely to have access to intergenerational transfers of wealth of transfers access to likely to have intergenerational more are hoods and same-race marriages. in women than minority economic security and upward mobility. upward and security economic women who intermarry with White men White men with intermarry who women in. marry who wealth than those and income ofWhite/Latino/awas $57,900 marriages compared as to $35,578 for marriages. Latino/Latina the highest mean family income.”). family the highest mean college-educated Asian-Americans mothers have greater access to resources and resources and access to greater have mothers Asian-Americans college-educated American men, as the earnings of African-American men have always been much men of African-American as the earnings men, American White men. of those than lower safe neighborhoods, high quality safe school neighborhoods, enjoy the couples. They also the children of wealth than minority of tional transfers For exam- minorities. rarely include to networks that of access benefits intangible ple, a childwhoresides in a wealthier neighborhoodwith highquality schools bined annual earnings of $70,952 as compar as $70,952 earnings of bined annual $53,187 as of income African-Americans family Asian/Asian couples. to Whites had a median married to $47,700 for African-Americanscompared who in. married opportunities than the children of college-educated African-American women, if if women, African-American of college-educated children the than opportunities preferences. of racial result are the advantages those en’s economic security. en’s economic 38779-ckt_92-1 Sheet No. 71 Side A 03/01/2017 10:44:39 A 03/01/2017 71 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 71 Side B 03/01/2017 10:44:39 , , . 132 ROJECT [Vol 92:1 MERICAN P CAD -A (June 2015), 2015), (June .A Compounded Compounded John Pawasa- M A 142 See FRICAN A Consequently, the the Consequently, ENTENCING rmal—the school in in school rmal—the rnships, and clients, and clients, rnships, S ren will be raised in will be ren 143 NNALS OF OW THE . cities some In (2011). 257, 259 HE ) 2/1/2017 8:20 PM :H ,T , 621 A 621 , may have greater access to greater have may ROBS The Reversal of the College Marriage side the network. side ELETE  .P D EOPLE P OC OT sproportionately White or Asian- sproportionately Jail Inmates at Midyear 2014 N , O 58 S HITE men may end up marrying men with men up marrying end may men kely to grow up with fewer resources up with fewer kely to grow re guidance counselors who search for for search who counselors re guidance W Richard Fry, Romantic Unions in an Era of Uncertainty: A Post-an Era of Romantic Unions in USTICE 1-30 (D J duals obtain jobs, inte jobs, duals obtain Christopher J. Lyons & Becky Pettit, J. Lyons Christopher ese opportunities are fo ese opportunities and income. Those marriages will not only will not marriages Those and income. OF Id. See . See likelihood that their child likelihood that their to individuals out to individuals 112 (2011) women marry that African-American (proposing (women who marry less successful men (educationally or (educationally successful men less who marry (women EPT Id. ARRIAGE FOR M For example, one recent study reported that there are are recent study there that one reported For example, CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW U.S. D S VERYONE Intimate Discrimination: The State’s Role in Accidents Love of Sex and Trends in U.S. Corrections Trends in U.S. 144 ,I E DITS AUTHOR WITH CMTS E ANKS see also B Wisconsin’s Mass Incarceration of African-AmericanWisconsin’s Males: Chal- Workforce FFECTS ACRO A . (Oct. 7, 2010), http://www.pewsocialtrends.org/2010/10/07/the-reversal-of-the- M . 1307, 1377 (2009) and accompanying text (noting that “families are at the heart of are at the heart text (noting that “families 1377 (2009) and accompanying . 1307, TR EV , https://www4.uwm.edu/eti/2013/BlackImprisonment.pdf (last visited Sept. 28, 2016). (last visited Sept. 28, 2016). , https://www4.uwm.edu/eti/2013/BlackImprisonment.pdf .C ICHARD These networks help indivi help networks These Elizabeth Emens, ECLINE ES D R .L.R ALDONADO 141 See EW EW Racial preferences limit the pool of potential partners available to African- available partners the pool of potential limit Racial preferences One might not be sympathetic to an African-American college-educated college-educated to an African-American not be sympathetic One might 128 5M ARV ,P 141. Interview with YG (Aug. 12, 2016) (on file with author). 142. 143. Linda M. Burton & M. Belinda Tucker, 144. record of a criminal incarceration and the existence The of African-American mass men ARRIAGE Moynihan Perspective on African-American Women and Women on African-American Marriage Moynihan Perspective woman who rejects a same-race partner with an average income because she would income average an with partner a same-race rejects who woman are not rejecting women But African-American partner. income a higher prefer with low partners They are rejecting incomes. with average partners same-race like Milwaukee, almost one in eight African-American has spent timemen in prison. (Jan. 2009); R rat & M. Quinn, Lois lenges for 2013 According to the Sentencing Project, ten percent of African-American in their thirties are men in prison day. given on any M neighborhoods thatdisproportionately are White coveted internships opportunities and academic notprivileged available is less of th Some and schools. neighborhoods the wealthier neighborhood may the have neighborhood may wealthier mo and opportunities are informal Other them. secure students help and opportunities to“access described mother or as one single as networks be described can only power.” 122 H financially secure, two-parent homes and have access to the resources and oppor- resources and have access to the and homes two-parent secure, financially When highly educated of interracial to the children marriages. tunities available di are successful men—who and financially ultimate- and romantic as potential women African-American American—exclude American women and reduce the and reduce women American occupationally) have higher divorce rate); College educated African-Americans are significantly more likely as college educated Whites to divorce. “out” “down”); of marrying instead Gap communities and thus of social and employment networks. Who one knows has significant effects on networks. Who one knows has significant employment and thus of social and communities one’s opportunities.”). children of those marriages may be more li be more may those marriages of children andspend to childhoodpart of their in a single parenthome. is so men African-American at all.pool of employed The or no income incomes partner find a same-race find it difficult to may women thin that African-American http://www.sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf (lasthttp://www.sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf visited Sept. 28, 2016); opportunities that are not available not available are that opportunities Disadvantage: Race, Incarceration, and Wage Growth, Growth, and Wage Race, Incarceration, Disadvantage: severely limits employment opportunities. severely limits employment college-marriage-gap/. ly marriage partners, African-American wo African-American partners, ly marriage levelslower attainment educational of have fewer resources, but are also at higher but risk of divorce. also are resources, at have fewer higher who is employed period. is employed who 38779-ckt_92-1 Sheet No. 71 Side B 03/01/2017 10:44:39 B 03/01/2017 71 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 72 Side A 03/01/2017 10:44:39 129 HITE EVER ,U.S. W N AVE ENEFITS OF Successful Successful B H OME A H 147 , 2011, 16, Sept. 2014 15 (2015), tunities to mar- RING See Quick Facts IMES B MERICANS T ALUE AND 43 (2010), the large given A ’ V at 11. Interestingly, African- UT ON O EE EE Id. ,D S ,N.Y.T ) 2/1/2017 8:20 PM RISONERS IN HARE OF male prison population is African- male S ATING OLAN ELETE ,P D F OMEN D OT note 111, at 28 (finding that “[f]ullynote 111, at 28 (finding that 88% of note 143, at 142 (noting that many middle middle many 142 (noting that note 143, at can women’s oppor can women’s .W N ECORD O eir male counterparts. eir male USTICE TR white, Hispanic and Asian American American Asian and Hispanic white, J 13 college black 37% of only 2010, (“In (2011) 2012, roughly equal shares of black men (36%) equal shares of black men 2012, roughly ., R ., supra .C supra supra TR ANGHORNE ., OF OMEN FROM ES 1-30 (D INDS L .C F R TR W . ES .C R EW EW EPT ES ARYN LACK R EW EW URVEY B ,S older had never been married.” EW EW EEP K Given their limited prospects for marriage, the African- marriage, the for prospects their limited Given 148 ,U.S.D note 145, at 14. RONTS employed men to women is roughly equal—100 men for equal—100 men is roughly to women men employed F HAT 149 Blacks, Whites, Gap and the Wedding Theeven pool is limited more forAfrican-American wom- at twice the rate of th at twice the DITS AUTHOR WITH CMTS T E supra ARSON OTH ROMANTIC DISCRIMINATION AND CHILDREN note 143, at 33; K 146 C B ACRO OTIONS M NN N supra AG ON , L Imani Perry, THER EN ANKS O Given the limited pool of marriageable African-American men, some men, African-American marriageable pool of the limited Given 14 (2014). “In most racial and ethnic groups, men are more likely than women to have never are to have never likely than women groups, more men racial and ethnic 14 (2014). “In most ALDONADO See ;M , https://www.census.gov/quickfacts/table/PST045215/00 (last visited Sept. 28, 2016). In contrast, “[a]mong never-married never-married “[a]mong In contrast, ,B ND 2017] 5M :A 145 148. as challenges same the do not face to marry seeking African-American College-educated men 146. Parker, & Wang 145. P Parker, Wang & Kim Wendy 147. P Parker, & Kim Wang Wendy 149. ARRIED OY OLLEGE UREAU middle class African-American women will not find a same-race partner. Their find a same-race will not women middle class African-American graduates were Among white, Hispanic and Asian college graduates,men and 63% were women. the is closeshare of to the average ofmen 45%.”). http://www.bjs.gov/content/pub/pdf/p14.pdf http://www.bjs.gov/content/pub/pdf/p14.pdf that 37% of (reporting American). African-Americans comprised 13% of the U.S. population in 2015. African-AmericansAmerican). comprised of the 13% remoteness of such a prospect.” of such remoteness Burton & Tucker, class African-Americans view “a traditional responsibilities of household alignment . . . as an achieve- been married. The major exception is among blacks. In blacks. The exception is among been major married. and black women (35%) ages 25 and B black respondents (compared with 62% of whites and 77% of Hispanics) say that in order to be ready order to be ready say that in of Hispanics) 77% with 62% of whites and (compared black respondents financially” family support a be able to a man must for marriage, are the“blacks and concluding that inclined financialracial group most to consider security toa prerequisite marriage.”). B M C http://www.bjs.gov/content/pub/pdf/jim14.pdf (reporting that 35% of jail population is African- (reporting that 35% of jail population http://www.bjs.gov/content/pub/pdf/jim14.pdf American); E. A “51 employed young black men for every 100 young black women,” ages 25– 34. American community’sAmerican acceptance greater socie- and childbearing, of non-marital pool of educated African-American women seeking a same-race partner, it is doubtful that racial prefer- partner, it is doubtful that same-race women African-American of educated seeking a pool ences affect African-American men’s (someone). ability to Similarly,marry Asian-American have men (despite relatively compared to Asian low rateshigh rates of American of intermarriage marriage so women) racial preferences to do not seem restrict their ability to find a mate either. en seeking a college-educated same-race partner as African-American women women as African-American partner same-race college-educated a en seeking college graduate from http://www.nytimes.com/2011/09/18/books/review/is-marriage-for-white-people-by-ralph-richard- African-American men are more likely than African-American women African-American than likely are more men African-American intermar- to African-American women. Although African-American men are rejected at high rates by online daters daters African-American are rejectedAfrican-American at high rates by online Although men women. races, they are twoof other as likely as to three times African-American to intermarry. women While African-American by professional seeking a are well-documented, women mate the challenges faced see, e.g. American womenAmerican express a preference for “having economicmen responsibility primary . . . despite the own racial preferences for African-American men and those of non-Black men for of non-Black and those men men for African-American own racial preferences young adults, the ratio of the adults, young every 100 women.” ty’s increased acceptance of single-parent families, it is not it families, surprising that some single-parent of acceptance ty’s increased banks-book-review.html. ment in the larger society’s terms.”);ment P ry, thereby decreasing the pool of marriageable African-American men available to to available men African-American marriageable pool of the decreasing ry, thereby women. African-American non-Black women, further limit African-Ameri limit further non-Black women, ry. Indeed, African-American women are more than three times as likely as white times three are more than women African-American ry. Indeed, marry. never to women 38779-ckt_92-1 Sheet No. 72 Side A 03/01/2017 10:44:39 A 03/01/2017 72 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 72 Side B 03/01/2017 10:44:39 , Being a [Vol 92:1 , Sept. 9, See generally (Mar. 1, 2016), EUTERS ,R (May 8, 2015), 8, 2015), (May parents. First, most most First, parents. to save for a child’s to save for a Many Women Choosing to be Many Women ) 2/1/2017 8:20 PM dren, may be excluded from be excluded from may dren, ELETE D ption of ‘the black single moth- As a result, single mothers, albeit albeit As a result, single mothers, OT N O 154 rricular and cultural activities that are cultural rricular and th whom to share the financial, logisti- financial, the to share th whom However, theyHowever, all to enjoy are unlikely fewer resources—financial, emotional, home in a desirable neighborhood with neighborhood a desirable in home ven the single-mother hierarchy, African- hierarchy, single-mother the ven two college-educated two college-educated 1-30 (D 152 able to afford to pay for a child’s college educa- able to a child’s college pay for afford to professional African-American); African-American); professional , 29, 2013, http://atlantablackstar.com/2013/03/29/being- Mar. Being a Single Mother by Choice, Part 2 Being a Single Mother (Feb. 29, 2016), http://madamenoire.com/616911/being-a-single- (Feb. 29, 2016), TAR S CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW As one divorced woman observed “as an African- “as an observed woman divorced one As and by extension their chil their by extension and Celebrating Single Mothers by Choice Celebrating Single Mothers Single Motherhood, in Decline Over All, Rises for Women 35 and Older , http://www.singlemothersbychoice.org (last 2016). visited Sept. 28, LACK Single Moms by Choice: Making the Finances Work Single Moms by Choice: Making the Finances DITS AUTHOR WITH CMTS 155 note 119 “society (stating that secretlycategorizes in gradi- single mothers ens of being a parent.” of ens E B Second, most families need two incomes need two incomes families Second, most note 119 college-educated African-American single mothers some (noting that HOICE ACRO C supra M 153 TLANTA supra ,A Chris Taylor, Chris Taylor, Tomiko Fraser Hines, Allers, to expend on their children and cultivate opportunities for their success. for their opportunities and cultivate children on their to expend are unlikely to experience the increased risk of poor outcomes faced by faced by poor outcomes risk of the increased to experience are unlikely , 8, 2015, http://www.nytimes.com/2015/05/09/upshot/out-of-wedlock-births-are- May The children of college-educated African-American “single mothers by “single mothers African-American of college-educated The children  ALDONADO OTHERS BY See See 151 150 IMES M 130 5M .See 156 153. 150. single parents. chose to become races also intentionally of other Women 151 154. Isabel Sawhill, 152. Claire Cain Miller, 155. 156. Allers, INGLE falling-except-among-older-women.html (discussing increase in rate of nonmarital births to women in rate of nonmarital (discussing increase falling-except-among-older-women.html over the age of 35). American woman -American income a middle-class education and Ivy League with an even 2014, http://www.reuters.com/article/us-money-singlemoms-idUSKBN0H41D220140909. As one byAfrican-American choice single stated, “I mother a very comfortablemake living . . . That said, it’s a-single-mother-is-a-chioce/. college-educated African-American women choose to raise a child without a child without to raise a choose women African-American college-educated S children of low-income single mothers. of low-income children cal, or emotional burd cal, or emotional college education. Single parents, even those who are financially stable, are less who are those even Single parents, college education. be parents to likely than married wi one no “have single parents Third, tion. N.Y. T networks that married parents inhabit. Gi inhabit. parents married that networks privileged singlewill likely mothers, have and time parents, Finally, single http://madamenoire.com/616917/being-a-single-mother-by-choice-part-2/ (noting that single mother- http://madamenoire.com/616917/being-a-single-mother-by-choice-part-2/ for choice is not an uncommon hood by Single Mothers spouse. of the advantages of children raised by raised of children of the advantages families need two-incomes to maintain a to maintain need two-incomes families choice” still one income. And living in southern California, there are certain things that are difficult to attain on California, there are certain things that are difficult southern And living in still one income. a single income. Like a larger home, or private school tuition . . . Fraser Hines, .”; Tomiko Choice, Part I by Single Mother mother-by-choice-part-1/. https://www.brookings.edu/2015/05/08/celebrating-single-mothers-by-choice/. race, a single how you became and ents of respectability depending on income, moth- most important, er.”). er’.” – perce stereotypical to the was still subject [she] American single mothers are more likely than White single mothers to be excluded mothers single White likely than more are single mothers American these networks. from use hyphenated names when interacting with administrators at their child’s predominantly white at their child’s predominantly when interacting with administrators use hyphenated names schools). high quality schools, and access to extracu access and high quality schools, or sum- applying to college when to compete for children increasingly necessary internships. mer 38779-ckt_92-1 Sheet No. 72 Side B 03/01/2017 10:44:39 B 03/01/2017 72 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 73 Side A 03/01/2017 10:44:39 , : LD 131 161 HEN O OMES C These EDERAL ,W ARRIAGE , 27. Nov. ESTRICTIVE M 162 HAT R U.S. F ,W ORKERS AND THE TLANTIC A ATZNELSON W social and legal social TATES OF THE K ASCOE S ACIALLY HE es in public spaces spaces es in public P :R ,T RA 20 (2009). n of college-educated n of college-educated NTERRACIAL I I enslaving Whites who Whites enslaving REFERENCES EGGY P ) 2/1/2017 8:20 PM OVERNMENT MERICA MERICANS ANDTHE A but racial preferences are not not are but racial preferences A :G OWARDS ELETE 493 (2000). T D EIGHBORHOOD ACIAL 158 see generally see generally N OT LACK ACE IN R TLANTIC AND THE ERVICE N R A S O :B ies, but are less advantaged than the than advantaged ies, but are less historical and current raise a child without a partner despite despite partner without a raise a child S ’ gregated offices and military units. and military offices gregated so with a partner had they found the had they partner a so with ws banishing or banishing ws ICKINSON a result, the childre result, the a we attempt to answer this question, we we question, this to answer attempt we D TTITUDES re not appropriate romantic partners. romantic not appropriate re portunities available to Whites. available to portunities 1-30 (D IDDLE A individuals do not find a marriage partner, partner, a marriage find not do individuals ldren who are not disadvantaged relative to relative not disadvantaged who are ldren AVING THE HAPING NEQUAL ATION (2016). ted Whites and non-Whit ted Whites M AKING OF of other races as college-educated Asian- as college-educated races other of U S N MILY . P (1997); 1171–74 1161, M ,S E 47–48 (2013); 47–48 (2013); However, at least some at least who are raising women However, EV shaping romantic preferences is extensive. States extensive. preferences is romantic shaping OSE R MERICA 157 The Racist Legacy of Wilson Woodrow IFE OF A ORTHERN ORMS .L.R OLE IN L S role in shaping preferences. racial ’ N R ICH AROL HE ,N The Devil and the One Drop Rule: Racial Categories, African Ameri-The Devil the One Drop Rule: and AW AND THE AW AND S EPARATE AND ACISM IN THE L ’ PINION IN THE Although most states did not prohibit interracial sex, these these interracial sex, prohibit states did not Although most ,T ILSON &C O ,S DITS AUTHOR WITH CMTS I’m a Single Mother by Choice, One Parent Can Be Better Than Two One Parent Can I’m a Single Mother by Choice, OCIAL ,R W E 159 S ,95M AW OWLER ROMANTIC DISCRIMINATION AND CHILDREN ING F EWALL ELLIN ACRO UBLIC ROOKS ROOKS AND S. K P Y M B B. S 1930, at 7 (1987). 1930, III. L , Southern states segrega Southern  OODROW AVID RIC ISCEGENATION AW D W 1–3 (1995); Dick Lehr, 1–3 (1995); E 160 Katy Chatel, , Mar. https://www.washingtonpost.com/posteverything/wp/2015/03/16/im-a- 16, 2015, 1780 :M ,L ESMOND ICHARD ICHARD “The heart [may] want[] what it wants” heart [may] “The After the Civil War, many more states enacted anti-miscegenation laws. anti-miscegenation states enacted more War, many After the Civil ALDONADO See See OST INE IN L 2017] of pool an marriageable increased mothers, single college-educated For many 5M .P 158. R 160. 157. 162. R 161. D 159. B. Hickman, Christine ASH ATURALLY ORTHWEST OVERNMENT OLOR OVENANTS EGISLATION AND W See generally The courts enforced laws, private covenants, and practices that denied African- that denied practices and private covenants, laws, enforced The courts L N N G C C shaped in a vacuum. They are influenced by They are influenced a vacuum. in shaped Whites and African-Americans between prohibited marriages as early as the seven- of la enactment the through teenth century slaves. married Black norms. The law’s explicit role in norms. single-mother-by-choice-one-parent-can-be-better-than-two/?utm_term=.cee9f5971f47. 2015, http://www.theatlantic.com/notes/2015/11/the-racist-legacy-of-woodrow-wilson-contd/417990. 2015, http://www.theatlantic.com/notes/2015/11/the-racist-legacy-of-woodrow-wilson-contd/417990. men would not have altered their decision to decision altered their have not would men above. discussed the challenges laws signaled that African-Americans we laws signaled that African-Americans and the federal government maintained se maintained government federal and the Americans housing and employment op housing and employment Americans “right” partner. There are many reasons many are There “right” partner. children alone might have preferred to do to preferred have might alone children duegreater challenges pool of face to a limited women African-American but their decrease that preferences racial and men African-American marriageable cans, and the U.S. Census cans, and the U.S. Forty-one Whites and African-Americans marriages states at between prohibited point. some American and Latina women often do. As As do. often Latina women and American available to to the benefits are unlikely to have access women African-American What, if and Latina women. Asian-American educated the children of similarly likelihood of partnering with men with men likelihood of partnering anything, should the law do to help chi help do to law the anything, should famil African-American vulnerable the most Before families? parent two of children the law’s explore first should 38779-ckt_92-1 Sheet No. 73 Side A 03/01/2017 10:44:39 A 03/01/2017 73 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 73 Side B 03/01/2017 10:44:39 [Vol 92:1 WENTIETH T ntages deriving deriving ntages Brown v. Board Brown d children such as such d children The federal govern- The federal NEQUALITY IN I ion in employment and ion in employment 163 ould support state inter- state support ould . Despite these reforms, the the reforms, Despite these ) 2/1/2017 8:20 PM leaving African-American leaving African-American (2012). to provide children affected affected children to provide ACIAL These structural inequalities These structural inequalities 165 R ELETE 168 ROW D C orhoods and schools that anti- and schools that orhoods 167 OT 78 Stat. 241 (1964); Fair Housing Act, Pub. IM IM J N eradicating disadva eradicating O discrimination and its failure to reme- from predominantly White neighborhoods, and and neighborhoods, White predominantly from EW EW and Whites to interact as equals and Whites to interact as equals and and ISTORY OF N H ificantly disadvantage ificantly This “Mrs. is known as the Murphy” exemption. 1-30 (D HE Loving v. Virginia Loving grate. These practices, which continue today continue which practices, These grate. ue relationships with men of other races). with men ue relationships ,T note 162. e Supreme Court’s decision in in decision Court’s Supreme e NTOLD e should support these children is no easy task these children e should support U also created the disparity in wealth between Afri- between wealth the disparity in also created oup as potential romantic partners. potential romantic oup as N supra rohibiting racial discriminat racial rohibiting 166 , uld warrant intervention intervention uld warrant LEXANDRE :A its discriminatory policies w policies its discriminatory A CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW HITE W DITS AUTHOR WITH CMTS E AS ICHELLE ATZNELSON M K W ACRO (2005). mandating desegregation of schools. desegregation mandating M CTION 164 A Civil Rights Act of 1964, Pub. L. No. 88-352, Civil Rights Act of 1964, Pub. L. No. 88-352, Fair Housing Act, 42 U.S.C. § 3604. MERICA The law has also contributed to the dearth of marriageable African- of marriageable to the dearth also contributed The law has Determining how the stat how the Determining The law’s active role in facilitating role in The law’s active The law’s explicit regulation of interracial intimacy ended in 1967 with ended intimacy of interracial explicit regulation The law’s ALDONADO A See generally See See generally See 132 5M Education 163. 1 (1967). 388 U.S. 168. 164. 483 (1954). 347 U.S. 165. 166. realtors continue to steer African- in redlining, to engage banks continue For example, 167. FFIRMATIVE ENTURY women to raise children alone (or purs (or children alone raise to women A C practices limited opportunities for interracial contact and reinforced social distance distance social reinforced contact and for interracial opportunities limited practices Whites. and African-Americans between limit opportunities for African-Americans opportunities for African-Americans limit gr other of the members consider Failing schools men. American have justice system led to a racialized criminal and virtually em- them and rendered men African-American of incarceration the mass release, after their unmarriageable ployable and despite laws prohibiting them, prohibiting laws despite discrimination laws have failed to failed laws have inte discrimination legal policiesdiscrimination thatuntilrace facilitated1960s the continueshape to racial and redlining, Racially restrictive covenants, today. our racial preferences neighb segregated the racially steering created ment also passed legislation also passed ment p housing and attempted to enforce th to enforce attempted and housing of can-Americans and Whites that make it impossible for most African-Americans to African-Americans most for it impossible Whites that make and can-Americans those in “fragile families.” At minimum, however, the recognition that despite their the however, At minimum, families.” “fragile those in the children of college disadvantage may racial preferences relative advantages, support all fami- should that the state suggests mothers African-American educated by racial preferences with similar opportunities as other children. as other with similar opportunities by racial preferences access greater have when these children already resources especially limited given sign than opportunities to resources and vention to ensure that African-American children’s access to resources and access children’s vention to ensure that African-American or shape helped law that the preferences by racial not limited are opportunities our active role in shaping not played an the law had if even reinforce. However, in interest state’s the preferences, romantic wo racial discrimination from dy the continuing effects of effects dy the continuing the U.S. Supreme Court’s decision in in decision Court’s Supreme the U.S. acquire property in these neighborhoods today. L. No. 90-284, 82 Stat. 72 (1968). 82 Stat. No. 90-284, L. Americans towards minority neighborhoods and away away neighborhoods and towards Americans minority and homeowners landlords continue to reject African-American homebuyers renters. and Further, its anti-discrimination from of four or fewer units dwellings federal law exempts owner-occupied mandate. 38779-ckt_92-1 Sheet No. 73 Side B 03/01/2017 10:44:39 B 03/01/2017 73 Side Sheet No. 38779-ckt_92-1 38779-ckt_92-1 Sheet No. 74 Side A 03/01/2017 10:44:39 , 133 the 171 Families SSISTANCE A poor outcomes poor outcomes fund campaigns campaigns fund erican, negatively However, instead of instead However, AMILY F the children of college- the children 172 ng support dependent on ng support dependent ) 2/1/2017 8:20 PM one too many. Further, the the Further, one too many. iative, be part of the federal part of iative, be federal the Initiative. A Healthy Initiative. ELETE D Initiative would Initiative would OT N O cially if African-Am cially if the value of healthy marriages” as the marriages” healthy of the value Families rent-child relationships. These reforms reforms These relationships. rent-child seeking to promote marriage (and which which (and marriage to promote seeking ly instability, and risk of note 169 living in two-parent, (“Children married Families es regardless of their parents’ income and income parents’ of their es regardless ONCLUSION 1-30 (D FFICE OF supra IV. C , ing one child is still Initiative would benefit benefit Initiative would ed African-American single mothers—might seem seem single mothers—might ed African-American cohabitating, and single-parent—and eliminating the eliminating single-parent—and and cohabitating, ,O so direct resources to the families that need them thatmost need them to the families direct resources so well-being rather than maki rather well-being enhance child well-being.” well-being.” child enhance SSISTANCE current Healthy Marriage Init Healthy Marriage current A note 115, at 384 (discussing project funded by the Healthy Healthy Marriage the funded by (discussing project note 115, at 384 Families DITS AUTHOR WITH CMTS E ROMANTIC DISCRIMINATION AND CHILDREN AMILY supra ACRO F M which funds projects that seek to encourage marriage before childbear- before marriage to encourage that seek funds projects which FFICE OF 169 ALDONADO Id. and signals that marital families are superior to other family forms, family other to are superior families marital that and signals This Essay’s focus on the relative disadvantages experienced by the children by the children experienced disadvantages focus on the relative This Essay’s 2017] 5M . Healthy Marriage 170 172. 170. Maldonado, 169 171. O household do better in school, have fewer behavioral problems, and are fewer behavioral problems, successful more likely to have in school, have household do better of their marriages own.”). ing, lies regardless of family form. This might be as simple as celebrating all families— celebrating as as simple be This might form. family of lies regardless blended, divorced, married, Marriage Healthy federal of the Instead marital families are superior. message that Initiative http://www.acf.hhs.gov/ofa/programs/healthy-marriage/healthy-marriage, (last http://www.acf.hhs.gov/ofa/programs/healthy-marriage/healthy-marriage, visited Sep. 8, 2016). on the value of healthy families and pa and families of healthy value on the redirect would programs from away funds of privileged—college educat of privileged—college Initiative should, like the should, like the Initiative “strategy to government’s Initiative that expressly sought “to increase the before conception number of marriages . . . .”). funding “public advertising campaigns on campaigns funding “public advertising federal government does now, a Healthy does government federal federal government should fund a Healthy have been unsuccessful) and towards programs that support parents regardless of parents that support programs towards unsuccessful) and been have are families that all would signal alone change name The structure. their family valued. trivial given the significant poverty, fami significant trivial given the families. fragile in children African-American of number larger by the much faced However, racial inequality affect However, espe families, of single-parent stigmatization impacts all children in non-marital famili non-marital in all children impacts Healthy education. A educated single mothers by signaling that their families are no less normative than families that their by signaling mothers single educated It would al families. marital children’s to secure their marriage. 38779-ckt_92-1 Sheet No. 74 Side A 03/01/2017 10:44:39 A 03/01/2017 74 Side Sheet No. 38779-ckt_92-1