Monday, April 2, 2018
NeJaime: "The Story of Brooke S.B. v. Elizabeth A.C.C.: Parental Recognition in the Age of LGBT Equality, Reproductive Rights and Justice Stories"
Douglas NeJaime has posted to SSRN The Story of Brooke S.B. v. Elizabeth A.C.C.: Parental Recognition in the Age of LGBT Equality, Reproductive Rights and Justice Stories (Murray, Shaw, & Siegel eds., 2019, Forthcoming). Here is the abstract:
This essay, forthcoming in Reproductive Rights and Justice Stories, maps the legal question of parental recognition onto evolving principles of sexual orientation equality. It does so through the lens of Brooke S.B. v. Elizabeth A.C.C., a 2016 New York Court of Appeals decision that illustrates both the opportunities and limitations when parentage law embraces sexual orientation equality.
In some earlier disputes on the rights of non-biological parents in same-sex couples, LGBT advocates framed sexual orientation as largely irrelevant. Courts should adopt more capacious understandings of parenthood, advocates argued, to protect parents and children, regardless of sexual orientation. But as the legal, political, and social environment became more affirming of LGBT people and their families, LGBT advocates urged courts to adopt more capacious understandings of parenthood, not only to protect parents and children, but also to vindicate principles of sexual orientation equality.
This essay shows how an emphasis on sexual orientation equality can shape approaches to parental recognition in ways that yield recognition for some families - namely, same-sex couples and others using assisted reproductive technologies (ART) - while leaving other families in an uncertain state - namely, families in which the non-biological parent did not participate in the plan to have the child but nonetheless raised the child. This distinction captures differences between intent and function. An intentional approach to parental recognition focuses on adults' plans with respect to parenting, often looking to decisions made well before the child's conception. A functional approach to parental recognition attends to the existing parent-child relationship, asking whether, with the consent of the legal parent, the individual claiming parental rights formed a bonded parental relationship with the child. In short, intentional parenthood focuses on the decision to have a child, while functional parenthood focuses on the act of raising the child.
The Brooke S.B. court adopted an intentional standard, and connected its approach to respect for same-sex couples' families and to emergent constitutional and family-law principles of sexual orientation equality. Nonetheless, the court explicitly left open the possibility for a functional test that would reach beyond the same-sex parents before it. Eventually, judges and lawmakers in New York might come to appreciate that a functional approach would in fact further sexual orientation equality by offering more comprehensive protection to non-biological parent-child relationships.