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The Origin of Parental Rights: Labor, Intent, and Fathers Dara Purvis Penn State Law

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The Origin of Parental Rights: Labor, Intent, and Fathers Dara Purvis Penn State Law Penn State Law eLibrary Journal Articles Faculty Works 2014 The Origin of Parental Rights: Labor, Intent, and Fathers Dara Purvis Penn State Law Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Family Law Commons Recommended Citation Dara Purvis, The Origin of Parental Rights: Labor, Intent, and Fathers, 41 Fla. St. U. L. Rev. 645 (2014). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. THE ORIGIN OF PARENTAL RIGHTS: LABOR, INTENT, AND FATHERS DARA E. PURVIS* ABSTRACT Most theories of parentage fail to explain the genesis of the right to parent-for example, why does a biological relationshipgenerate parental rights? This Article shows that the law of parental rights mirrors theories of acquiringproperty, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized as legal parents, even if they are not genetically related to the child. A labor- based understandingof parentage may even reach to gestational work performed by the pregnant woman. This Lockean labor-based theory, however, poses a challenge to male parental rights, because men have fewer opportunities to contribute labor for the benefit of the child. This disparity is heightened in the context of unwed biological fathers, who must create a signifi- cant relationship with the child before gaining constitutionalparental rights. This Article argues that intent to be a father, as demonstrated through behavior preparingfor a child's arrival, should be incorporatedinto labor-based theories of parentage.Including an intent- based approach will thus address a gendered inequality in existing parentallaw. I. INTRODUCTION............................................................. 646 II. ACQUISITION OF PARENTAL STATUS AS PROPERTY... ...................... 648 A. Parental Status as Bodily Unity................ ................... 653 B. The Growth of Labor-Based Theories.............. ................. 654 C. Case Study: The MaritalPresumption .............................. 661 III. FATHERHOOD AS LABOR.................................................... 663 A. Where FathersAre Locked In....................................... 664 B. Exceptions to the Biological Rule............... .................... 667 C. Unwed Biological Fathers and the Supreme Court..................... 669 D. Implications ................................................... 677 IV. LABOR-BASED THEORIES INTO DOCTRINE .................................... 680 A. Mechanics ....................................................... 681 B. BroaderImplications ............. .............................. 683 1. MarriedBiological Fathers.................................... 683 2. Wider Applications: Intent -BasedParentage.......... ............. 684 C. Potential Objections ............................................. 688 1. Feminist Objections.......................................... 688 2. Criticisms of PrebirthLabor.................. ................. 692 V. CONCLUSION .............................................................. 696 * Assistant Professor, Penn State Dickinson School of Law; Yale Law School, J.D.; University of Cambridge, M.Phil.; University of Southern California, B.A. I am deeply ap- preciative for thoughtful comments from Kerry Abrams, Kenworthey Bilz, Mary Patricia Byrn, Devon Carbado, June Carbone, Dan Hamilton, Paul Heald, Jennifer Hendricks, Pat- rick Keenan, Alicia Brokars Kelly, Laurie Kohn, Robert M. Lawless, Beth Burkstrand Reid, Victor Romero, Carol Rose, Arden Rowell, Jamelle Sharpe, Kate Stith, Melissa Was- serman, and Lesley Wexler, as well as feedback from participants at the Emerging Family Law Scholars conference, the International Society of Family Law meeting, and the AALS New Voices in Gender Studies panel. 646 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 41:645 I. INTRODUCTION Jonathan and Lorraine are the biological parents of Jessica. When Jessica was born, Jonathan visited the two in the hospital every day until they were discharged. Rather than return to the home she had shared for two years with Jonathan, however, Lorraine moved else- where and did not tell Jonathan where she and Jessica had gone. For about one year, Jonathan was occasionally able to find Lorraine, and when she allowed him to do so, he visited Jessica. Eventually Jona- than hired a private detective to find Lorraine, who by that time had married another man who had legally adopted Jessica, meaning that Jonathan was now a legal stranger to his biological daughter. Lor- raine said he could not visit Jessica, and if he tried to do so she would have him arrested. Jonathan attempted to assert his rights as a parent in court, chal- lenging Jessica's adoption and seeking to be recognized as her legal father. Although he advanced his case to the Supreme Court,' Jona- than Lehr was unsuccessful in his efforts to be identified as Jessica's father.2 Rejecting his argument that his fundamental rights as a par- ent were violated when Jessica was adopted without his permission or knowledge,3 the Court held that unwed biological fathers do not have constitutional rights as parents until they take on parental re- sponsibilities and create a substantial relationship with their biologi- cal child. 4 If they are unable to do so-in the case of Jonathan Lehr, even if they are prevented from doing so by another party-states are free to enact laws that do not recognize them as legal parents.5 Alt- hough most jurisdictions currently provide unwed biological fathers with methods to assert their paternity, such fathers must satisfy spe- cific procedural requirements and in some circumstances can be blocked from asserting their paternity as Jonathan Lehr was.6 Such biological fathers are thus legal strangers to their child and can be absolutely barred from even asking for custody or visitation with the child. By contrast, biological mothers are uniformly identified by state law as legal parents.' There is thus a stark difference in the statutory 1. Lehr v. Robertson, 463 U.S. 248 (1983). 2. Id. at 267-68. 3. Id. at 265. 4. Id. at 261-62. 5. See id. at 262. It is worth noting that the Lehr opinions do not give an explanation as to why the mother wished to keep Lehr from his biological child. 6. James G. Dwyer, A Taxonomy of Children'sExisting Rights in State Decision Mak- ing About Their Relationships, 11 WM. & MARY BILL RTS. J. 845, 865-81 (2003). 7. Id. at 859-60. 2014]1 THE ORIGIN OF PARENTAL RIGHTS 647 and constitutional interests of biological mothers and fathers. The Supreme Court, however, has repeatedly rejected equal protection claims arguing that it is unconstitutional to use separate rules turn- ing on the biological parents' gender. 9 The different treatment of biological mothers and fathers raises two troubling sets of issues, both theoretical and doctrinal. First, making it more difficult for otherwise similarly situated mothers and fathers to secure status as legal parent seems problematically conso- nant with stereotypes that women are better or more natural parents than men. Second, divergent requirements placed on biological par- ents obscures the significance of biology as a doctrinal rule. Genetic relationships are often where the process of identifying legal parents starts, and in many circumstances genetics are alone sufficient to determine legal parentage. 0 In the context of unmarried biological fathers, however, biology is generally both necessary and sufficient for the purpose of imposing a child support obligation, yet it is neces- sary but not sufficient if the biological father seeks parental rights.'" Not only is this at least superficially inconsistent, but the additional burden placed upon unwed biological fathers indicates that the theo- ry underlying how parentage is acquired has not yet been answered. If a biological relationship is not always a trigger for recognition as a legal parent, then why is it ever a trigger? It seems intuitive that the genetic parents of a child are where analysis should start, but why does the genetic relationship generate parental rights? This Article begins with that question-how are parental rights acquired?-as a stepping-off point to explain the law as it exists to- day and to propose doctrinal reforms creating a more unified parent- age regime. I argue that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from fa- voring a property right based in genetics to a Lockean theory of prop- erty rights earned through labor. This analysis has both descriptive and normative value, showing that the current constitutional under- standing of fatherhood is both inconsistent and gendered. A growing understanding of parentage as created through labor helps to explain the law's current treatment of fathers, particularly unwed biological fathers. It also points to a specific doctrinal amendment: understand- 8. As will be discussed further below, adjudications of the constitutional rights of unwed biological fathers have arisen
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