From Volume 83, Number 6 (September 2010)
The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology (“ART”), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other.
This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge—the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children—both marital and nonmarital—born through ART.