By Jessica Feinberg. Full Text.
The longstanding marital presumption of paternity, under which a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage, has reached a critical juncture. Pursuant to the Supreme Court’s mandate that states provide marriage to same-sex couples on the same terms accorded to different-sex couples, states will need to either expand the marital presumption so that it encompasses both the different- and same-sex spouses of individuals who give birth or abolish the presumption entirely. It is unlikely that many states will choose the latter option. The marital presumption has, since the nation’s inception, played a core role in parentage law, and it remains the most common way of establishing an individual as a child’s second legal parent. As a result, it is probable that in the near future there will be a number of states that seek to extend their marital presumptions to same-sex spouses. In doing so, these states will need to grapple with how rebuttal of the marital presumption, which has traditionally focused on the lack of genetic connection between the spouse of the individual who gave birth and the child, will now be structured given that in most cases involving same-sex couples the spouse will not be genetically connected to the child. In reconceptualizing and restructuring their marital presumptions, states will be forced to reevaluate both what considerations are most important in identifying the individuals entitled to recognition as a child’s legal parents and what primary objectives a marital presumption should seek to promote. The decisions that states make in this process are of great importance and will likely play a significant role in the modern development of the law governing the establishment of parentage. After identifying the various objectives that states may seek to further through a modern marital presumption, this Article sets forth a comprehensive analysis of the approaches that states can take to restructuring their marital presumptions in order to effectively promote such objectives.