Conference to examine the "New Illegitimacy"

On March 25-26, 2011, I will be hosting a conference at American University Washington College of Law, co-sponsored by the National Center for Lesbian Rights and by our Journal of Gender, Social Policy, and the Law. The conference is entitled: "The 'New Illegitimacy': Revisiting Why Parentage Should Not Depend on Marriage."

The impetus for this conference -- actually the last straw -- was the ruling from the New York Court of Appeals last spring that a nonbiological mother was not a child's parent based on her role in her child's life but based solely on the fact that she was in a civil union with the child's mother when the child was born. I blogged about the case at length here. Massachusetts also determines when a child born to a lesbian couple has two parents based on whether the couple is married.

I sent the following call for papers to numerous family law academics:

It is an axiom of family law: children should not suffer as a result of being born to unmarried parents. This bedrock principle developed in the second half of the 20th century to sweep away the disabilities that plagued “illegitimate” children – those born outside of marriage – for centuries. Beginning in 1968, the US Supreme Court held in a series of cases that marriage of a child’s parents could not be the factor determining which children were eligible for, among other things, wrongful death recovery, worker’s compensation death benefits, and financial support and care by both parents.

Today, however, that principle is under attack. In some states, children born to lesbian couples find that their status depends upon whether their parents are married (or in a civil union). Massachusetts, the first state to permit same-sex couples to marry, will recognize the spouse – male or female -- of a woman who conceives through donor insemination as a parent. If the couple is not married, however, the child has only one parent. New York also recognizes a nonbiological mother as a legal parent only if she is married to, or in a civil union/domestic partnership with, the child’s biological mother. In Iowa, the state has yet to recognize that married lesbians are both the parents of a child born to one of them, but even when it does there will be no recognition that a child whose mothers are unmarried has two parents. No court has yet extended to the children of same-sex couples the well-established principle that the law should not discriminate against children born outside marriage.

Moreover, it is distressing that some support for same-sex marriage relies on the denigration of “illegitimate” children. Advocates often argue that denying same-sex couples with children the right to marry deprives those children of what those advocates allege is the security and stability offered by “legitimacy.” Arguing that same-sex couples must be allowed to marry to prevent the “illegitimacy” of their children flips on its head the modern understanding that neither law nor society should penalize children of unmarried parents. It may also make it more difficult to advocate recognition of parent-child relationships outside of marriage, including those formed when more than two adults plan for and raise a child together.

These developments are taking place in the context of a broader dispute over family structure. Those who argue that children achieve optimal outcomes only when raised by their married biological parents urge legal principles disfavoring all other family forms. Explicitly or by implication, they disparage adoptive families, single mothers and fathers, families formed through assisted reproduction, kinship caregiving, children with more than two functional parents, and numerous other households in which children grow and thrive. Rather than advocate law reform that values all children in all families, they seek to privilege “legitimate” children in a fashion that mainstream family law rejected decades ago.

The American University Journal of Gender, Social Policy & the Law and the National Center for Lesbian Rights are co-sponsoring a conference addressing the issues raised by recent developments privileging the children of married parents. With some states now dividing the children of same-sex parents into those who are “legitimate” and those who are “illegitimate,” it is critical that law reform efforts on behalf of gay and lesbian families forcefully articulate that this approach harms children and furthers no proper public purpose. The conference planners seek papers on this conference theme.

While this debate arises from controversy over the status of children in the various family forms that lesbians, gay men, and transgender people are creating, we strongly encourage papers that tie in the needs of other children facing the stigma of “illegitimacy” because their family does not fit the mold of one biological mother married to one biological father.

Happily, I received far more interest in this topic than I imagined, and there will be a terrific line-up of law professors presenting papers. Confirmed participants include: Susan Appleton (Washington U.), Nicholas Bala (Queens University - Canada), Carlos Ball (Rutgers-Newark), Cynthia Bowman (Cornell), Sacha Coupet (Loyola-Chicago), Ariela Dubler (Columbia), Katherine Franke (Columbia), Joanna Grossman (Hofstra), Leslie Harris (Oregon), Melanie Jacobs (Michigan State), Solangel Maldonado (Seton Hall), Serena Mayeri (U. Penn), Melissa Murray (Berkeley), Julie Shapiro (Seattle), Catherine Smith (Denver), Dean Spade (Seattle), Richard Storrow (CUNY-Queens), and Tanya Washington (Georgia State).

If you are interested in this topic, please plan to attend the conference. There is no registration fee (we ask you to register so we know how many mouths we'll be feeding!).