Inconceivable: Status, Contract, And The Search For A Legal Basis For Gay Lesbian Parenthood

With the fight for same-sex marriage in the rearview mirror, legal advocates have turned their attention to legally securing parenting rights for gay and lesbian people against this new landscape. Adults in same-sex couples often share parenting responsibilities for children who are biologically related only to one of them. What, short of adoption, should establish the legal tie between a child and a non-biologically related adult? A consensus answer to that question has emerged among scholars and advocates of gay and lesbian family law: intent to parent and socially functioning as a parent.

Using as an entry point the recent decision of the U.S. Supreme Court in Pavan v. Smith, which extended the "parentage presumption" to married lesbian co-parents, this Article examines the consensus answer closely, characterizing the proposed shift as a move from status (biological parenthood) to contract (parenthood by intent or implied in fact). It invites the reader to consider such a move with particular mindfulness of the drawbacks that may accrue in the most vulnerable sectors of the gay and lesbian community.