Parenthood is easily determined when a heterosexual married couple conceives a child through sexual reproduction. The common law marital presumption of parenthood holds that when a child is born into a marriage, the woman, having given birth, is presumed the child’s mother; likewise, the woman’s husband, by virtue of marriage to the mother, is presumed the child’s father. Complicating such parenthood determinations is the advent of same-sex marriage and assisted reproductive technologies that permit same-sex couples to procreate with a third-party donor’s assistance. This Note explores the currently indeterminate legal status of intended same-sex parents who are party to a surrogacy arrangement, with express concern about a same-sex marriage dissolving while a future child is still in the womb. There seems to be widespread agreement amongst legal scholars that the marital presumption should apply to same-sex couples, but not agreement as to which, if any, of the rationales that underlie the modern marital presumption should apply. In particular, there is uncertainty about the importance of intent per se, the role of estoppel principles in interpreting the assumption, and the reinterpretation of marriage in light not just of the inclusion of same-sex partners, but the changing nature of adult relationships more generally.
With family law at a crossroads, this Note proffers a new basis to define legal parentage when same-sex couples procreate through surrogacy—arguing that such redefinition requires not just social reconceptualization, but legislative action toward statutory clarification. By drawing on principles of marital presumption, intent, labor, and estoppel, this Note posits model statutory frameworks that will better define the legal roles and responsibilities of intended parents and surrogates alike. These statutory frameworks will not only create a portable set of cross-jurisdictional parentage rights, but will better define what makes a person a parent and what triggers the severance of a surrogate’s parental status. And to the extent that a generalized preference exists for children being raised with the support of two parents, such statutory proposals will help achieve a child’s best interests regardless of the sex or marital status of her or his parents when she or he is born.