Response or Comment
Melissa Murray's Family Law's Doctrines provides a fascinating case study of legal parentage cases involving assisted reproductive technology, where judges applied relatively new laws to even newer circumstances never contemplated by the laws' drafters. The Uniform Parentage Act (UPA) was a modernizing statute intended to resolve legal questions generated by new societal developments: namely, the rise of nonmarital heterosexual relationships producing children, and the use of artificial insemination within heterosexual marital relationships.
In the decades after its adoption in California, the UPA confronted a brave new world. Two developments further transformed the reality of family life: assisted reproductive technologies such as in vitro fertilization (IVF) and gestational surrogacy, and same‐sex relationships producing children. By the law's thirtieth anniversary, California—the perennial leader in family law reform—had once again taken the lead, this time by recognizing the parental rights and obligations of lesbian partners.
Compared with states that were more reluctant to move beyond traditional legal definitions of parentage, California appeared enlightened, modern, and progressive. In many ways, it was. Other states relied on rigid, formalistic definitions of parentage primarily dependent upon marriage—and failing that, biology. California courts instead used functional and biological definitions of family to extend parental rights and obligations to individuals who were unmarried or not genetically related to their children.
But as Professor Murray argues, California's retreat from the formalistic application of categorical distinctions based on marital status did not uproot the bedrock values underlying family law doctrine. In fact, the turn toward biology, intent, and functionality offered courts new tools to maintain the primacy of conjugal relationships as the site of reproduction and childrearing, and, most crucially, to reinforce the privatization of dependency within the two‐parent family. The functional turn, Murray writes, did not undermine traditional doctrine; rather it furthered many of the same ends. And, notably, formal categories such as marriage—and biology—did not disappear; they simply ceased to be the exclusive determinants of legal parentage. In this way, the California courts' liberal interpretation of the UPA's provisions in the face of unanticipated factual circumstances arguably served the statute's purpose quite faithfully. After all, the UPA was drafted and promoted by Harry Krause, whose primary motivation was to ensure that all children, regardless of their parents' marital status, had the opportunity to know—and, most importantly, be supported by—their fathers.
This continuity in the midst of change raises a question: should we understand the reform of legal parentage as an instance of “preservation through transformation,” to borrow Reva Siegel's term? Preservation through transformation occurs when progressive reform efforts indirectly reinforce, rather than disrupt, status hierarchies by motivating modernizing alterations to the rhetorical and substantive rationales for unjust legal regimes. For instance, equal protection doctrines attack overtly invidious racial classifications but embrace the principle of colorblindness, thereby maintaining racial inequality on more palatable terms. Another classic example is the rise of facially gender‐neutral sexual and domestic violence laws that obscure the hugely disproportionate impact of state enforcement failures on women. Arguably, the biological, intentional, and functional definitions of parentage dress up traditional notions of what makes a family legitimate in a progressive guise. Nonmarital partners and non‐biological parents are no longer excluded from the legal definition of family, but the traditional marital family remains the gold standard against which all else is measured. Or does this characterization go too far? Do the doctrinal developments Professor Murray describes augur a more profound change, or at least one with a more ambiguous political valence? I am inclined to think so, but perhaps only time will tell.
Mayeri, Serena, "The Functions of Family Law" (2015). Faculty Scholarship at Penn Law. 1585.