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When a child is born, the law makes a critical determination regarding who will be recognized as the child’s legal parent(s). This determination carries immense importance both for children and for individuals who are, or seek to be, identified as legal parents. Essential rights, protections, and obligations attach to a legally recognized parent-child relationship, and in the vast majority of cases an individual who is recognized at birth as a child’s legal parent will retain that status permanently. The determination of the child’s first legal parent historically has been a straightforward one, and this largely remains true today outside of the narrow context of enforceable surrogacy agreements. Namely, the individual who gives birth to the child long has been, and continues to be, recognized as the child’s initial legal parent as a matter of course. The determination of a child’s second legal parent at birth, however, is far less straightforward. In situations where the individual who gave birth desires for the law to recognize a second legal parent, that individual’s ability to exercise meaningful choice within the determination of who is deemed the child’s second legal parent differs drastically depending on factors such as their marital status, the method of the child’s conception, and the gender of the desired second parent. This Article argues that the law’s vastly differing treatment of individuals who give birth based upon these factors is problematic. Importantly, there is no underlying theory that provides a consistent explanation for the law’s current approach to this issue. Reform is necessary to create a more coherent and just legal framework governing the degree of meaningful choice individuals who give birth have in at-birth determinations of the child’s second legal parent.

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University of California, Davis Law Review



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Family Law Commons