Presuming women

Revisiting the presumption of legitimacy in the Same-Sex Couples era

By: Appleton SF
Published in: Boston University Law Review, Vol. 86, 2006
Via: SSRN

One of family law's most venerable doctrines, the presumption of legitimacy, has reached a critical crossroads. On the one hand, this doctrine, which recognizes a woman's husband as the father of her children, has been eroding in recent years, thanks to both the decreasing disadvantages of illegitimacy and the increasing ability to determine genetic paternity. On the other hand, this doctrine is getting a "second wind" as one of the traditional (and gendered) benefits of marriage that some states newly have made available to same-sex couples.

Using a functional test, which many scholars and law-reform efforts advocate, this analysis considers the extent to which the presumption, as a default rule of parentage, makes sense today for families - whether formed by traditional different-sex couples, gay male couples, or lesbian couples. The analysis concludes that a modernized version of the presumption is worth preserving for traditional couples and worth extending to lesbian couples. This extension to lesbian couples is consistent with the outcomes (but not the reasoning) of a handful of very recent judicial decisions. The analysis fails, however, to reach a similar conclusion concerning an extension of a modernized presumption to gay male couples.

The extension to lesbian couples turns out to hold promise for resolving some of the new difficulties encountered by the presumption in traditional settings, with the advent of sophisticated genetic testing. The failure to extend the presumption to gay male couples raises important questions not only about the increasingly apparent split between some feminist theorists and gay rights advocates, despite their shared opposition to gender stereotypes, but also about the value to be accorded to gender neutrality, the role to be given to functional analysis, and the room to be left for officially privileged relationships in contemporary family law.