Constitutional Parenthood

Constitutional Parenthood Michael J. Higdon * ABSTRACT: Despite having recognized the constitutional rights of parents almost a hundred years ago, the Supreme Court has not weighed in on the subject of who qualifies as a “parent” under the Fourteenth Amendment in 30 years. In light of the Court’s silence, the states have been forced to individually grapple with the issue of constitutional parenthood—a task made exponentially more difficult by the fact that the last 30 years have ushered in an avalanche of change when it comes to the American family. With advances in assisted reproduction, the legalization of same-sex marriage, and the increased frequency of divorce, remarriage and cohabitation, states now regularly encounter claims of parental identity that 30 years ago would have been unimaginable. Nonetheless, the states have persevered, adopting a number of approaches to deal with these increasingly thorny issues. The problem, however, is that the constitutional protections that are afforded parents now vary by state. Moreover, some states have defined “parent” in a way that discriminates against families that do not comport with that state’s conception of the “ideal” family. To solve this problem, this Article makes two proposals. First, the Supreme Court must offer more guidance on how states may define constitutional parenthood. Although a definitive definition of the term is both impractical and unrealistic, the Court can and should delineate the outer boundaries of that constitutional standard. Second, taking a cue from some of the tests developed by the states, this Article proposes what exactly those boundaries should be so as to help craft a definition of constitutional parenthood that is more responsive to and protective of the 21st century family. I. INTRODUCTION ........................................................................... 1484 II. PARENTAL STATUS UNDER THE CONSTITUTION ......................... 1491 III. STATE APPROACHES TO “PARENTHOOD” .................................... 1502 A. A SSISTED R EPRODUCTION ...................................................... 1503 * Professor of Law, University of Tennessee College of Law. I am grateful to the University of Tennessee College of Law, particularly Dean Melanie Wilson, for providing generous financial support for this project. 1484 IOWA LAW REVIEW [Vol. 103:1483 1. Artificial Insemination ................................................ 1503 i. Sperm Donor as Father ............................................. 1504 ii. Husband of Artificially Inseminated Woman as Father ...................................................................... 1506 2. Gestational Surrogacy ................................................. 1508 i. Egg Donor as Mother ............................................... 1509 ii. Gestational Surrogate as Mother ............................... 1510 iii. Intended Mother as Mother ...................................... 1511 B. S AME -S EX P ARENTAGE ........................................................... 1514 C. T HE P SYCHOLOGICAL P ARENT ............................................... 1518 IV. DEFINING TWENTY-FIRST CENTURY PARENTHOOD ..................... 1524 A. B IOLOGY P LUS I NTENT .......................................................... 1525 1. The Limited Role of Biology ...................................... 1529 2. The Historical Link Between Parental Identity and Intact Families ...................................................... 1529 3. The Importance of Safeguarding Familial Equality ........................................................................ 1532 B. F UNCTIONAL P ARENTHOOD ................................................... 1534 C. P SYCHOLOGICAL P ARENTAGE AND S TATE A UTONOMY ............. 1538 V. CONCLUSION .............................................................................. 1541 “ Constitutions fail when they ignore our nature .” 1 I. INTRODUCTION Problems arise when the Supreme Court interprets constitutional rights in such a way that states are left uncertain as to the exact reach of those rights. Consider, for instance, in 2002, when the Supreme Court ruled that it is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment to execute defendants who are mentally handicapped. 2 Despite recognizing that “there is serious disagreement” as to “which offenders are in fact” entitled to this protection, the Court nonetheless left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” 3 In other words, the Court charged the states with implementing this ban, including how to define the very term “mentally handicapped.” In so doing, the Court’s opinion “created a maze of statutory and judicial schemes for the protection of the intellectually 1. PHILEMON BLISS, OF SOVEREIGNTY 17 (1885). 2. Atkins v. Virginia, 536 U.S. 304, 321 (2002). 3 . Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986)). 2018] CONSTITUTIONAL PARENTHOOD 1485 disabled.” 4 More specifically, by deputizing the individual states, the Court’s decision led to a system in which those “[w]ho actually enjoy[] the benefit of those protections varies by state, and the amount of proof defendants must make to garner that protection is similarly varied.” 5 Even more troubling was the fact that some states applied the Court’s directive so restrictively that individuals with questionable cognitive abilities were nonetheless being sentenced to death. 6 For that reason, the Court would soon have to issue another opinion on this topic, clarifying that, in determining whether a defendant qualifies as mentally handicapped, states could not simply rely on a bright-line IQ test threshold requirement. 7 Three years later, as states continued to experiment with how to define the term, the Court weighed in once again, this time holding that states must use legitimate medical diagnostic tools when determining whether a defendant was mentally handicapped. 8 Thus, within a short period of time, the Supreme Court would issue three separate opinions on how states must define “mental handicap” for purposes of ascertaining a defendant’s constitutional rights. A similar, yet unresolved issue stems from the way states may define “parent.” Like the mentally handicapped, the Constitution provides protections to parents—in this instance, under the Fourteenth Amendment. 9 In fact, the Supreme Court has gone so far as to characterize the constitutional rights of parents to the care and upbringing of their children as being “perhaps the oldest of the fundamental liberty interests recognized by this Court.” 10 But who qualifies as a parent? Despite the fact that the Court first recognized the constitutional rights of parents in the mid-1920s, 11 the Court, in sharp contrast to the Supreme Court’s guidance on the definition of “mental handicap,” has not weighed in on the issue of parental identity in over a quarter of a century. 12 The Court’s reticence might be understandable if it had already put forth a satisfactory or even a workable definition of that 4. Ethan A. Wilkinson, Article, Eighth Amendment Protections in Capital Proceedings Against the Intellectually Disabled: Assessing State Methods of Class Protection Through the Lens of Hall v. Florida, 40 L. & PSYCHOL. REV. 321, 342 (2016). 5 . Id. 6 . See Penny J. White, Treated Differently in Life but Not in Death: The Execution of the Intellectually Disabled After Atkins v. Virginia, 76 TENN. L. REV. 685, 692–710 (2009) (noting the varying state policies regarding execution of the mentally handicapped). 7 . See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). 8 . See Moore v. Texas, 137 S. Ct. 1039, 1050–51 (2017). 9 . See infra notes 49–53 and accompanying text. 10. Troxel v. Granville, 530 U.S. 57, 65 (2000). 11 . Meyer v. Nebraska , 262 U.S. 390, 400 (1923), is credited as being the first case to recognize the fundamental right of parents. There, when discussing the Liberty Clause of the Fourteenth Amendment, the Court stated that, “[w]ithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to [among other things,] establish a home and bring up children.” Id. at 399. 12 . See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) (the last case to do so). See infra notes 112–30 and accompanying text. 1486 IOWA LAW REVIEW [Vol. 103:1483 term. When it comes to constitutional “parenthood,” however, that simply is not the case. Instead, the Supreme Court has typically deferred to state court determinations of parental identity when adjudicating those individual’s constitutional rights. 13 Of course, for much of our nation’s history, the Court would have had little to say on the topic given that parenthood determinations were tied almost exclusively to marriage and, thus, the identity of a child’s parents was rarely in dispute. 14 In essence, the woman who gave birth to the child was the mother, and that woman’s husband was the father. 15 If the mother was not married, then the child was regarded as having no legal parents. 16 Beginning in the late 1960s, however, the law began to recognize that a parent-child relationship could exist outside of marriage. 17 Consequently, the question of parenthood became more complex, requiring the Court to weigh in. Therefore, in a quintet of cases, all of which were brought by nonmarital fathers, the Supreme Court did just that—suggesting that there are indeed some limits to the state’s ability to define legal parenthood. 18 It is only within the nonmarital, biological father context, however, that the Court has offered any guidance on the broader topic of constitutional parenthood. In fact, the last case in the quintet was in 1989—almost 30 years ago. 19 The Court’s sustained silence is particularly problematic in light of the dramatic changes to the American family during that time...