Parentage by Contract as New Tool for Implementing Family Law’s Equality Project?
In Gender and Parentage: Family Law’s Equality Project in Our Empirical Age, my chapter in the What Is Parenthood? book, I argue for a diversity model of parentage that recognizes an array of family forms beyond the one mother-one father norm. Specifically, I contend that the U.S. Supreme Court’s invalidation of family laws resting on gender stereotypes exemplifies a more expansive equality project, which in turn should doom any legal rules of parentage based on such stereotypes. I also posit that the doctrine of gender equality arising from such cases might well offer a stronger basis for a diversity model of parentage than empirical evidence showing generally how children fare well in families with two mothers and two fathers. Among various reasons I cite, I state that individual children should not be subject to a parentage regime based on generalizations, rather than their own particular best interests.
How might the arguments set out in my chapter be implemented? Although legislatures and courts might take several different paths, a case decided by the Kansas Supreme Court in February offers some useful templates. In Frazier v. Goudschall, Nancy Frazier sued after her former partner, Kelly Goudschall, denied her access to the two children whom Goudschall conceived via donor insemination during their relationship and whom the couple had agreed to rear together. Three aspects of the majority’s opinion merit attention.
First, this case holds a court has jurisdiction to hear a petition brought by a mother’s former same-sex partner, based on a gender-neutral application of the state’s paternity statute. Courts in other states have taken a similar approach. For example, before New York statutorily authorized same-sex marriage, its highest court looked to Vermont’s civil union statute to employ a gender-neutral version of the traditional presumption of legitimacy, making a mother’s civil-union partner the second parent of the mother’s child. An appellate court in Oregon extended a statute recognizing the mother’s husband as the legal father of a child conceived by donor insemination to include the children of mothers in same-sex relationships, given the inability of such couples to marry (Shineovich v. Kemp, 214 P.3d 29 (Or. Ct. App. 2009). Like the Kansas case, a recent New Mexico case has held that a court has jurisdiction to recognize as a parent a mother’s former same-sex partner based on a gender-neutral application of the state’s paternity statute.
Despite allowing mothers to take the position traditionally accorded to fathers, the approaches illustrated by these cases are not gender-free. Each uses a gendered starting point, a legal mother-child relationship, and then turns to a gender-neutral reading of existing law to recognize another woman as the children’s second parent.
As a result, a second rationale in the Kansas case could be even more far-reaching – and more truly gender-free. The court holds that a legal parent may enter a valid and enforceable agreement with a partner, committing to shared parental rights and responsibilities. Co-parentage by contract opens new possibilities that need not start with a legal mother. In fact, the court’s agreement-based reasoning dovetails with recent decisions holding that assisted reproduction arrangements might result in a child with only a legal father and no mother at all or with two fathers and no mother. On the other hand, some courts have explicitly rejected parentage by contract. The Kansas case’s reliance on parentage by contract certainly deserves further consideration and analysis, both to elaborate on its promise and to reveal any possible pitfalls.
Third, the Kansas case stands out because of the way it addresses the children’s interests. The court deems the children to be third-party beneficiaries of the co-parenting contract, emphasizing the importance of recognizing two parents for them, but remands the case to determine the children’s best interests with assistance from an appointed attorney. Generalizations about “dual gender parenting” as the means of ensuring optimal childrearing, which one finds in some opinions and briefs defending restrictive marriage and adoption regimes, receive no mention in the court’s analysis. Thus, Nancy Frazier is the children’s “de facto parent” because the co-parenting contract designates her as such, and Kelly Goudschall’s constitutionally protected right to rear her children does not permit her to “renege on the co-parenting agreement without regard to the rights of or harm to the children.” Yet, exactly what visitation arrangement best serves these children requires more evidence.
The analysis in the Kansas case illustrates how courts and other lawmakers might approach parentage questions free from gender-based rules and generalizations. It also illustrates how the current battle over same-sex marriage, while critically important, is but a piece of family law’s larger equality project. Although marriage provides one route for creating a legal tie between a child and an adult, not all co-parents will choose to marry – even if they can.