Yearly Archives: 2017
Nov 22, 2017 Brian Bix
Barbara A. Atwood,
The New UFLAA: Providing Needed Standards for Efficiency and Fairness, 39(4)
Family Advocate 38 (2017), available at
SSRN.
In July 2016, the Uniform Law Commission gave final approval to the Uniform Family Law Arbitration Act (UFLAA). Barbara Atwood was the drafting committee’s Chair and Linda Elrod was its Reporter. In The New UFLAA: Providing Needed Standards for Efficiency and Fairness, Professor Atwood offers an overview of the UFLAA’s history, the problems to which it responds, and the hard choices that had to be made in its drafting.
Arbitration has a bad reputation in large segments of the legal profession and legal academy. It is associated with provisions in consumer and employment agreements—mandatory arbitration with class action waivers meant to make challenges to improper behavior both private and impractical, and there are documented instances of the process being run by private arbitration companies with suspiciously one-sided win rates for the business or employer. It is also associated with Supreme Court decisions that have read the Federal Arbitration Act in controversially broad ways, in the process making it very hard to challenge arbitration provisions in court on grounds of unconscionability, lack of consent, or related grounds. Arbitration was also recently in the news when the Republican Congress and the current President combined to overturn a Consumer Financial Protection Bureau rule that would have limited use of such provisions in financial documents. Why would anyone want to have that unpopular mess in family law?
Atwood provides a compelling explanation to the naysayers. As she explains, just as family law agreements are distinct from commercial agreements, arbitration in the family law context is different from arbitration in the commercial context. Unlike commercial arbitration, which typically arises from mass-produced, take-it-or-leave it standardized forms (the boilerplate agreements that are part and parcel of credit card applications, cell phone contracts, and low-level corporate employment), family law arbitration generally emerges out of negotiations preceding separation or divorce, or as a term in a premarital, marital, or separation agreement. There is a hope that in the family law context, arbitration can offer the advantages frequently advertised on its behalf, without the problems that have arisen in (commercial) practice.
As Atwood notes, the non-public nature of arbitration might be especially attractive to disputing couples, and the process is often quicker and cheaper than litigation. At the same time, as Atwood points out, there is at least a tension, and perhaps a distinct misfit, between arbitration and family law. Typically, arbitration is accompanied by the absence of a record and very limited opportunities for judicial review. Understandably, family courts are reluctant to follow these typical arbitration procedures—at least for decisions affecting children (custody, relocation, child support), where the courts claim a strong parens patriae power and responsibility. While some might argue that arbitration could simply be modified to suit the particularities of the family law context, this too raises questions. Under the Supreme Court’s robust reading of the Federal Arbitration Act, it is unclear whether any modification of arbitration for family law purposes will be allowed.
Nevertheless, the UFLAA is intended to address these concerns in order to reap the benefits of arbitration in the family law context. As the article indicates, under the UFLAA, pre-dispute agreements to arbitrate child-related conflicts would generally need to be reaffirmed after the dispute arises to be valid; an arbitrator is required to request a verbatim recording of the parts of an arbitration hearing concerning child-related disputes; and arbitrators in family law cases would have the power to make temporary orders or awards. For most purposes, though, the UFLAA is meant to incorporate, or at least be consistent with existing state and federal arbitration procedures and standards.
The Article provides a clear description of this emerging development in family law. Also, as Atwood observes, the growing use and recognition of arbitration in family law should be seen alongside other developments in family law processes: including greater use of mediation and new experiments in many states with “collaborative law.” And the growing pluralism in family law procedure is even more evident when one adds in the distinction between secular and religious arbitration, and a seeming increase of the use of choice of law and choice of forum provisions in premarital, marital, and separation agreements. Professor Atwood’s article offers a useful overview of a new uniform law, as well as a good introduction to the alternative dispute resolution methods that are becoming ever more important in family law.
Sep 26, 2017 Kaiponanea Matsumura
Scholars studying assisted reproductive technologies (ART) have long recognized its power to both challenge and reinscribe norms around reproduction and the family. In-vitro fertilization and surrogacy, for example, reveal that motherhood is not an inherently unitary construct, but is instead comprised of genetic, gestational, and affective ties. Scientific breakthroughs make it likely that, not too far in the future, technicians will be able to derive eggs and sperm from induced pluripotent stem cells, allowing them to create eggs from men and sperm from women. By decoupling sexual intercourse (and potentially biological sex itself) from reproduction, these past and future developments challenge foundational assumptions about the relationship between sex and the family. They have also expanded parenthood to people outside the traditional heterosexual dyad. But at the same time, ART fulfills the specific desire to create a genetic or biological parent-child relationship. It can therefore reinforce the mainstream ideologies of biogeneticism—belief in the importance, and even superiority, of biology and genetics in creating relationships and maintaining one’s identity—and repronormativity—the conceptualization of procreation as a biological imperative rather than a cultural preference.
It is this back edge of ART’s sword that Michael Boucai focuses on in his thoughtful article, Is Assisted Procreation an LGBT Right?. Boucai sheds light on the fact that in recent years, LGBT rights advocates have consistently argued that access to ART is an LGBT rights issue. The basic premise of argument is that LGBT individuals face special forms of infertility, whether hormonal/anatomical, or due to the nature of their intimate relationships. Barriers to ART, such as bans on remunerative surrogacy, therefore disproportionately burden the LGBT population, preventing full LGBT equality in parenthood. This embrace of ART troubles Boucai for several related reasons. First, advocates have largely ignored similar structural barriers to adoption facing members of the LGBT community. Second, arguments deployed in ART-focused advocacy tend to reify biological parenthood’s inordinate prestige by presuming that biological procreation is coextensive with family formation. The narrow focus on a fundamental right to procreate “carr[ies] a constant risk of glorifying biological reproduction at the expense of adoption,” while “invite[ing] judges to ensconce a preference for biological relationships in our family law and constitutional jurisprudence.” (Pp. 1123-1124).
Given that these critiques apply equally to non-LGBT, unassisted reproduction, what justifies the focus on LGBT parenting? After all, LGBT and non-LGBT people report similar motives for using ART, including a desire to “reproduce,” have a child of “one’s own flesh and blood,” to carry on their “ancestral line,” or to strengthen their intimate relationships by “mak[ing] a baby together.” Indeed, some reasons—like a desire for companionship in old age; to fit into extended family networks (for example, by providing a grandchild for Mom and Dad); or to attain parenthood’s promise of maturity, respectability, normalcy, and acceptance—may have even greater salience for people who have experienced exclusion from valued social institutions.
Boucai answers that the LGBT community has more to lose. From its beginnings, the modern gay rights movement emphasized a different model of kinship, one that was social and functionalist as opposed to biological and essentialist. In Boucai’s beautifully rendered conceptual and historical account, this queer kinship had its roots in LGBT people’s alienation from their genetic families and/or their “exclusion from patterns of love, marriage, and children upon which the dominant culture rests.” This dissociation from the traditional family provoked intellectual and political critiques of the reproductive family, and the development of social practices focused on one’s “chosen” family. Queer kinship arrangements united friends, lovers, and children in various combinations through “symbolic demonstrations of love, shared history, material or emotional assistance, and other signs of enduring solidarity.” LGBT adults formed informal relationships with children as honorary aunts and uncles, godparents, or mentors. When they adopted, they were more likely to pursue open adoptions, pushing back against the “as-if-genealogical” secrecy of closed adoptions. And they were more likely to adopt or foster “hard to place” children: those who are older, experiencing psychological or physical issues, or not the same race as the adoptive parents. Boucai argues that this ethic—that “love does not need blood to make a family”—was not “mere acquiescence to circumstance,” but a product of “a rich history of queer resistance, both personal and political, to the ideology of biogenetic kinship.” (P. 1106).
Framed in this way, the threat ART’s biogeneticism poses to queer kinship becomes manifest. Boucai proposes two interventions to mitigate the conflict. First, he argues that the LGBT movement’s pursuit of substantive equality in parenthood must expand its current focus on biogenetic parenthood to include adoption and alternative parenting arrangements. Boucai provides a litigation roadmap for bringing a disparate impact claim, identifying various reasons that LGBT people must depend more heavily on adoption to become parents, and the numerous structural impediments to adoption that disparately impact access. Second, he argues that attempts to secure a fundamental right to procreate through ART must avoid demeaning non-biological forms of parenting. Arguments based on the “heartrending image of a couple with but one ‘hope of procreating’ inevitably trades on a preference for biological children that most readers can be presumed to share. Most judges too.” (P. 1122).
These are thoughtful and practical interventions, and advocates ought to take notice. But one wonders, after reading his account, whether ART’s biogeneticism poses merely a conditional threat to queer kinship, or if it is in fact more existential. Boucai’s proposals would go some way to achieving the laudable goal of “correct[ing] the procreation/adoption hierarchy” without “invert[ing] it.” But what is the likelihood, without abandoning pro-ART advocacy entirely, that the LGBT movement will be able to resist biogeneticism’s normative pull? Although Boucai points to studies demonstrating that LGBT people are more enthusiastic about adoption than their straight counterparts, will access to privileged forms of reproduction eventually undercut that ethic?
In raising these questions, Boucai’s wonderful article contributes to a long-running discussion within the LGBT community. Can queer kinship survive queer respectability, or will it go the way of the gay bar, the gay bookstore, and the gayborhood itself? I suspect that Boucai himself has his doubts: the sunset of dissolution illuminates his account of the queer family with the aura of nostalgia. Predictions aside, Boucai makes a compelling argument that the least we can do is try.
Editor’s note: for an earlier review, see Douglas NeJaime, Biological and Social Approaches to the LGBT Family, JOTWELL (April 26, 2017).
Sep 4, 2017 Dara E. Purvis
On the first day of my Family Law class, when discussing my goals for the semester, I tell students that even if they do not practice in the area of family law, the class will be helpful for them because of how directly family law impacts everyday life. The impact of other areas of law is typically more attenuated, and of the legal fields that also operate directly upon individuals—tax and criminal law come to mind—family law is the topic that is both omnipresent and often joyfully applicable, as when a couple marries.
Beyond the direct interventions in our relationships, however, family law sends implicit messages about society’s expectations for familial relationships. These messages can be difficult to uncover and even more complex to address. Holning Lau’s article Shaping Expectations About Dads as Caregivers: Toward an Ecological Approach is a refreshingly clear contribution, drawing upon his experiences as a new father as a springboard for legal reform.
Lau and his husband recently adopted a baby girl, and his article begins by describing a number of experiences undercutting Lau’s role as an engaged, caregiving parent. He notes that he was lucky to be able to take advantage of a generous family leave policy, an option not available to most parents regardless of their gender. But during his time on leave from teaching responsibilities, Lau faced myriad small but direct messages that assumed caregiving parents were all female. When outside of his home, he faced difficulty finding men’s bathrooms with changing tables—when out to a meal to celebrate Father’s Day, a restaurant owner apologized and offered to let Lau use the women’s bathroom changing table instead. Looking for activities for his daughter, Lau noted most of the classes intended for infants were called “Mommy and Me,” rather than a gender neutral term. This was in keeping with the vast majority of baby product advertisements, which targeted mothers rather than all parents. Conversely, when Lau wasn’t being ignored as a parent, he was being singled out as doing something unusual, as when he and his husband were complimented by strangers for “babysitting” when they ran errands with their daughter.
After chronicling some of his experiences, Lau outlines the broader effects of such microaggressions. Caregiving fathers feel alienated as they are constantly singled out as different. Fathers or potential fathers deciding whether to take on significant caregiving work are nudged away from doing so. Just as men are pushed away from caregiving, women are pushed towards taking on the caregiving work. Societal expectations and individual choices become a self-fulfilling cycle: because more women are the primary caregiver, we assume all primary caregivers are women, which pressures new parents towards fulfilling the stereotype.
One reason Lau’s article is so persuasive is because of the personal narrative he includes in explaining the problem he seeks to address. I have written about the cultural messages sent to caregiving fathers as have Beth Burkstrand-Reid and Nancy Dowd among many others. But for reasons likely made obvious by our first names, we cannot provide first-hand examples of the broader phenomenon. Lau demonstrates the utility of personal narrative in legal scholarship through a few well-chosen anecdotes, a technique notably used by Darren Rosenblum in his 2012 article Unsex Mothering: Toward a New Culture of Parenting. By using such an effective narrative, Lau persuasively argues that fathers are tangibly affected by gender stereotypes even before he began his analysis.
After sketching out the problem of gender stereotypes in parental roles, Lau outlines existing proposals to encourage more caregiving by fathers in the context of workplace policies, principally expanding paid parental leave and setting aside a portion of the leave solely for use by fathers, on the theory that an early incentive to take some time early in a child’s life as the primary caregiver will make fathers more likely to continue sharing caregiving work. Supporters of such a “daddy quota” of parental leave often point to Scandinavian countries as demonstrations of the success of such policies. Lau points out, however, that the broader culture of Norway and Sweden was significantly different than American expectations about parenting even before the daddy quotas were created, and calls upon scholars to “expand our conversation beyond workplace policies” toward ecological reform.
By ecological reform, Lau means a broad inquiry into how the state can generally encourage caregiving by fathers. He provides three examples to spark discussion: physical infrastructure, such as equal access to changing tables in public bathrooms; the targeted audience for community events, requiring classes currently labeled “Mommy and Me” to use gender-neutral names by tying the name change to funding for public buildings where such classes often take place; and media campaigns to encourage paternal caregiving.
What I found most helpful about Lau’s final proposals is how they are simultaneously large- and small-scale. On the one hand, Lau has persuasively outlined how pervasive gender stereotypes are, and his call to think of ecological reform broadens the field of potential changes well outside of workplace leave policies alone. On the other hand, Lau’s starting points are quite narrow in focus: how to require some “Mommy and Me” classes to change their names to be more inclusive, for example.
Lau does not have specific proposals to reform family law itself, although obviously his piece is easily identified as about the family. I write about gender stereotypes in parenting, and specifically about caregiving fathers, but have typically focused upon relatively large-scale questions of how to define legal parents in statutory language. Lau’s call to open the field of reform to relatively small interventions, but multiple interventions across different areas and types of laws, reminds us that combating gender stereotypes must be as far-reaching as the stereotypes themselves.
Jul 26, 2017 Janet Halley
Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. Janet Halley, What is Family Law?: A Genealogy, Part I, 23 Yale J. L. & Human. 1 (2011) and Janet Halley, What is Family Law?: A Genealogy, Part II, 23 Yale J. L. & Human.189 (2011). Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what did happen with this issue or that in the transformative-yet-reactionary 19th Century?
But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours. Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1988); Hendrik Hartog, Some Day All This Will Be Yours: A History of Inheritance and Old Age (2012). But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts!
The book has the look and the price of a casebook, but in lieu of “cases and materials” it presents primary documents in chronological sequence and in ample excerpts. The topics are all chosen and framed with care. We find a review of women’s frustrated claims to full citizenship and suffrage in the Revolutionary period and early Republic, followed by successive major efforts of organized feminists to engage public debate and demand suffrage. The tumultuous conflicts over feminist demands for female suffrage and their relationship to emancipation of enslaved blacks after the Civil War unfold in painful detail. Indeed, the authors’ carefull attention to the connections that may be drawn between seemingly disparate events is one of the volume’s core strengths. For example, rather than presenting them as disconnected and separate historical moments, Chused and Williams frame the eventual success of the Suffrage and Prohibition Amendments as inextricably intertwined. Their chapter on women’s campaigns for temperance and moral purity is followed by a chapter detailing the suffrage effort from the middle years of the Civil War to its eventual success in 1919-20. Together, the two chapters reveal a single, long, immensely complex story of progressive change fostered not only by feminist leftist radicals but also by feminist appeals to profoundly conservative values.
Equally rich are the materials on feminist efforts to emancipate wives, mothers, and widows in family law. As Chused and Williams show, contemporary divorce law rests, to an unrecognized degree, on the very partial success of 19th Century feminists in reforming the common-law rules governing property relations between husband and wife. The Married Women’s Property Acts (MWPAs) and the partial emancipation of wives to contract and to sue and be sued had complex ramifications, giving wives and widows some of the powers and some of the liabilities associated with participation in an increasingly wage- and commodity-based economy, while according them some of the burdens and some of the advantages of joint property rules. Chused and Williams’ chapter makes this complex “law in action” story lucid.
The rise of divorce, the rise of a best-interests-based legal motive for bestowing custody on separated and divorced mothers, turbulent conflicts between feminists and moral conservatives over abortion and birth control, are all detailed in expansive chapters that vividly present important historical social conflicts over family law and family roles that undergirded these questions today. Moreover, each chapter is richly documented, with amazing intensity and minute details, in terms that will be eerily familiar to readers who follow American post-war repositioning of all these issues.
Though many chapters – most notably the ones in the MWPAs and on suffrage – repeatedly exemplify the possibility of convergence and conflict over the relative posture of racial and female emancipation, the chapter devoted to this divisive comparative justice process is a major single accomplishment in its own right and well worth the price of admission. Chused and Williams note that the “domestic relations” included both the law of husband and wife and master and servant, and they provide a comparison of the law of justified and unjustified violence against wives and both enslaved and free blacks that demonstrates how deeply linked the institutions of marriage and slavery were to 19th Century jurists and political players, including feminists. They also explain how differently the two bodies of law were structured and applied. Their comparison of the rise of Jim Crow with the feminist denunciation of women’s retro social status as “Jane Crow” focuses on the co-evolution of segregated transportation facilities for women and for blacks, and almost graphically shows how the regulation of intimate relations (marriage and, specifically, racial intermarriage) and the law governing train cars were imbricated. The gradual obsolescence of the “ladies car” was, they suggest, made possible by the cementing of racial segregation in the social and legal order that culminated in Plessy v. Ferguson, suggesting that racial segregation of what we would now call public transportation was in part a way of managing white women’s increasing social mobility while protecting and preserving their stature as paragons of moral virtue.
The book ends with two fascinating chapters that point directly to modern relevancies. A chapter on protective labor legislation is a case study in the tension in gender equality law (and aspiration) between equal and “special” treatment. The next and last chapter, which focuses on the uses of history in the notorious Equal Employment Opportunity Commission v. Sears Roebuck and Company litigation, shows how sharply this issue can divide contemporary feminists, and also how images of gendered law in the 19th Century can become consequential rhetorical tools in modern political struggles. See Vicki Schultz, Life’s Work, 100 Colum. L. Rev. 1881 (2000).
One of the achievements of this monumental book is its constant probing of the relationship between the private law and the public law dimensions of gender rules and debates in 19th Century America. Sometimes these links seem pretty attenuated, but they are always worth asking about, in part because the law school curriculum divides the public law and private law dimensions of the family into separate topics, courses, and bodies of law. The unique collaboration of Chused and Williams, over twenty years of teaching a seminar on Gender and American Legal History at Georgetown together, doubtless made this inquiry possible. We are all the richer for the massive labor they and their students have put into this highly valuable contribution.
Apr 26, 2017 Douglas NeJaime
For decades, same-sex couples have made claims—in both politics and law—to parenthood. Many of these claims relate to the regulation of assisted reproductive technologies (ART), as same-sex couples pursue modes of family formation made possible by ART and seek legal recognition of the parental ties that grow out of their use of ART. These claims have only grown more potent in the wake of Obergefell v. Hodges, the 2015 Supreme Court decision granting same-sex couples access to marriage on both due process and equal protection grounds. The centrality of ART in contemporary claims to LGBT equality leads Michael Boucai to ask in a timely and fascinating new article, Is Assisted Procreation an LGBT Right?
In resisting the turn to ART as an LGBT political project, Boucai contrasts the primacy of biogenetic ties in organizing around ART with the role of nonbiological forms of kinship in the history and ethics of LGBT life. ART’s “appeal to American society’s pervasive biogeneticism, its deep-seated faith in the priority and superiority of biogenetic forms of relationship and identity,” Boucai asserts, runs against the LGBT community’s longstanding commitment to “a social and functionalist … conception of familial relationships.”
To illustrate the significance of social kinship in the LGBT community, Boucai points to work around adoption. As he notes, LGBT people fought for decades to win rights to form foster and adoptive parent-child bonds. “LGBT people’s uncommonly warm embrace of adoption,” Boucai argues, should not be interpreted as “mere acquiescence to circumstance,” but constitutes “queer resistance, both personal and political, to the ideology of biogenetic kinship.”
In contrast, Boucai argues, same-sex couples’ claims on ART shore up the importance of biogenetic kinship. Of course, a same-sex couple will ordinarily feature at least one parent without a legally cognizable biological tie to the child. But, as Boucai notes, the choice of gamete donors often reflects an interest in replicating the nonbiological parent’s physical features and racial or ethnic identity. Moreover, some may even enlist relatives to serve as gamete donors or gestational surrogates. Same-sex couples, through this lens, seek to replicate the biological family. To be clear, Boucai aims his criticism less at the personal pursuits of LGBT people and more at the biological focus “in the politics of LGBT parenthood.”
Boucai’s intervention alerts us to the ways in which claims on ART can reproduce normative models of family that historically have justified the exclusion of LGBT people. Reflecting critiques of the push for same-sex marriage, Boucai warns of the assimilationist thrust of LGBT arguments for biogenetic parentage. Yet, at the same time, other work—as Boucai acknowledges—identifies the capacity of ART to disrupt the biological, gender-differentiated, and heterosexual family. It is this doubleness, which runs throughout Boucai’s article, that makes ART so fascinating and yet so fraught.
Same-sex couples, unlike many of their different-sex counterparts, use ART in ways that produce nonbiological parent-child bonds and lead to parental recognition without reference to biological ties. Viewed from this perspective, Boucai’s attention to adoption as a model of social parenthood can be seen as connected to fights over ART. For same-sex couples, ART represents a pathway not only to biological but also to nonbiological parent-child relationships. Just as same-sex couples staked out the primacy of social, over biological, bonds in their push for adoption, same-sex couples again ask law to credit social bonds over biological connections in the domain of ART.
Given the complicated relationship between LGBT claims on ART and the historically rich LGBT ethic of social parenthood, how might the LGBT community navigate the terrain of ART, family formation, and parenthood? Boucai’s critical intervention points in two related directions.
On one hand, Boucai highlights the need to build out claims in the adoption arena. LGBT people, Boucai shows, have distinctive investments in the adoption regime. As Williams Institute research has shown, same-sex couples are much more likely than their different-sex counterparts to be raising foster or adopted children, and LGBT youth are much more likely than their non-LGBT counterparts to enter the foster care system. In this way, LGBT individuals are overrepresented both in the community of adoptive parents and in the pool of children available for adoption. These features lead Boucai to urge the LGBT community to devote greater attention to adoption law and policy—and specifically to the vindication of social parenthood models. Drawing on Elizabeth Bartholet’s foundational work, Boucai shows how the adoption regime is regulated in ways that continue to express skepticism of nonbiological bonds. Embracing a functional model of family more fully could reshape the adoption regime in ways that render it not only more normatively attractive but also more effective in promoting children’s welfare.
On the other hand, Boucai urges the LGBT community to pull back from some claims in conflicts over ART. Claims that sound in the fundamental right to procreate, Boucai warns, reiterate the centrality of the traditional, biogenetic family and marginalize the adoptive family. To be sure, some proponents of the ART-focused fundamental right to procreate argue that the right should include the creation of nonbiological parent-child relationships. But it is easy to see how these arguments may situate such rights as merely derivative of rights to parental recognition based on biological connection.
Boucai also expresses skepticism about equality-based arguments in the ART arena. Certainly, laws that restrict access to ART may disproportionately affect LGBT people. But, for Boucai, equality-based challenges to these laws falter on both doctrinal and normative grounds. Not only do these arguments face the ordinary obstacles that disparate-impact analysis currently entails; but, according to Boucai, they also prioritize biogenetic parenthood over other kinds of parental bonds.
Here, though, is where the doubleness of ART is particularly illuminating. Perhaps equality-based claims offer more transformative potential than Boucai admits. By attending to the law’s social meaning, rather than focusing simply on questions of classification or discriminatory purpose, courts might appreciate the harms inflicted by a parentage regime anchored in biological connection. For same-sex couples to be treated as fully belonging, the law must recognize the nonbiological parental ties that LGBT people form through ART. Accordingly, claims to equality entail a challenge to the primacy of biogenetic ties. On this view, same-sex couples using ART have the capacity to remake the law and politics of parenthood, even as in their personal lives they may reiterate the salience of biological ties.
