1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

3.  Who Is My Family?

Who is my family?   In the middle twentieth century, the answer to “who is family” was a simple one.  The so-called “nuclear” family consisted for the most part of a married couple having one or more biological offspring.  That picture was immortalized in 1960’s TV shows such as “Leave it to Beaver” that depicted loving, monogamous, couples with kooky kids who got into all kinds of wholesome trouble.  This image was not restricted to humans.  In the animal kingdom, biologists described pair-bonded animals, especially ducks and other birds, who mated for life, raising brood after brood of progeny.

All that has been turned on its head. Scientific technology enabled biologists to determine the true paternity of offspring from married ducks and other birds, and to their surprise, a fair number, often as many as 50%, turned out to be the result of extra-marital copulations.  [EXAMPLE]  It was no accident.   What looked on the surface to be a loving couple, instead were two adulterers sneaking around for casual, yet procreative, sex.  In most cases, the conventional, but non-biological, father accepted his role as parent, despite the fact that another male was the true gamete-provider.  Maybe he just didn’t know.

Two leading rules are generally applied in paternity disputes.  First, there is the presumption that any child born during a marriage is the natural and legitimate offspring of the married couple.  Under the common law, the presumption could only be rebutted in limited circumstances where non-access during the period of conception, impotency, or sterility was established.  Even when blood testing had unambiguously determined a child to be a product of an extramarital affair, it was excluded on the grounds that the paternity presumption had not been overcome.  Courts were very reluctant to bastardize a child, and encroach on the marital unit.

Paternity estoppel is another rule that is applied in paternity challenges.  When a man holds out a child as his own, and by his conduct acknowledges the child as his own, he cannot later deny that he is the father.  “We recognize that there is something disgusting about a husband who, moved by bitterness toward his wife, suddenly questions the legitimacy of her child whom he had been accepting and recognizing as his own … Where the husband accepted his wife’s child and held it out as his own over a period of time, he is estopped from denying paternity.”  Commonwealth ex rel. Goldman v. Goldman, 199 Pa. Super. 274. 184 A. 2d 351 (1962).

As a result of paternity presumptions and estoppel, a putative father may be coerced by law to maintain and support a child, even though they do not share any of the same genes.  From the standpoint of male genes, the law is undeniably unfair in the requirement that the husband pay for his wife’s child, irrespective of his genetic contribution to it.  There are several obvious explanations for the one-sidedness of the paternity rules.  Money is of foremost concern to society, and by making the married father presumptively responsible for any child born during the marriage, the rule prevents the child from becoming an economic liability to it.  After all, the defrauded father is in the best position to prevent the situation from happening in the first place.  By making him pay the price for his lack of vigilance, the paternity rules put the risk on the appropriate party.  Rules that permit the married husband to take punitive action (see, 3.3. The Paramour Statute) against an adulterer confer power on the husband to police paternity, consistent with where the burden has been placed.

Until very recently, only rudimentary technology existed to provide evidence of paternity.  Blood testing was often inconclusive because only four different blood types could be distinguished, making it a high probability that a match could be obtained, even when paternity were factually incorrect.  The paternity presumption may simply reflect the limited ability to prove who was the actual father beyond a reasonable doubt, avoiding irresolvable disputes based on nothing more than a difference in eye or hair color, or a hunch of infidelity. 

In the past decade, technology has leaped forward, providing very cheap and credible tests for resolving issues of fatherhood.  If paternity determining rules reflect the limitations of technology, is there any reason for perpetuating them when science is able unambiguously sort out who is the biological dad?