Jeffrey Parness on Civil Unions and Parenthood at Birth

Jeffrey A. Parness (Northern Illinois University - College of Law) has posted Civil Unions and Parenthood at Birth on SSRN. Here is the abstract: 

The Illinois Religious Freedom Protection and Civil Union Act (RFPCU) took effect on June 1, 2011. It recognizes civil unions, affording unionized parties “the same legal obligations, responsibilities, protections and benefits as are afforded to spouses.” Parties may be “of either the same or opposite sex.” The RFPCU reflects federal constitutional equalities. As declared in Eisenstadt v. Baird, 405 U.S. 438 (1972), “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental inrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Notwithstanding the directive for “same” treatment, however, marriages and opposite sex unions are naturally different than same sex unions. At times there can be no absolute sameness. Consider parenthood. Same sex unions can never produce children genetically-tied to both partners. Similarly, though husbands and wives are generally accorded equal treatment regarding children born into marriage, here too there are differences. Only wives bear children. The U.S. Supreme Court has declared that mothers automatically are accorded parental rights at birth, while fathers only have parental opportunity interests which must be affirmatively seized.

How should legal parenthood at birth arise when children are born into civil unions? Should the standards differ between same sex female and male couples? Between married and unionized opposite sex couples? These questions are addressed in the article, which explores the Parentage Act, the Gestational Surrogacy Act, and voluntary paternity acknowledgment practices. The article concludes that Illinois legislators should consider new parentage laws rather than leaving important family law policies to the Illinois courts which can only resolve assisted reproduction and other parentage cases “on the particular circumstances presented.” In re Parentage of M.J., 203 Ill.2d 526 (2003). “Unitary” families, subject to significant potential governmental protections under Michael H. v. Gerald D., 491 U.S. 110 (1989), deserve more clarity so that parent-child relationships can develop early on with little fear of later disruptions.