Kevin Maillard 0 1
0 Thi s Symposium is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 Syracuse University College of Law
Recommended Citation Kevin Maillard, Other Mothers, 85 Fordham L. Rev. 2629 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss6/9
In Brooke S.B. v. Elizabeth A.C.C.,1 two women in New York agreed to
have a child together by artificial insemination.2 The child was born to the
unmarried couple in 2009.3 The child took the surname of the
nonbiological mother, who then cared for the child at home.4 The
relationship between the two women eventually broke down, and four years
later, the genetic birth mother refused to allow the nonbiological mother to
contact the child.5
The nonbiological mother—the “other mother”—sought joint custody
and regular visitation rights over the genetic mother’s objection that the
nonbiological mother lacked standing and was not a parent within the
meaning of the applicable statute.6 Ruling for the other mother, the New
York Court of Appeals embraced a functional test for standing, which
“relate[s] to the post-birth relationship between the putative parent and the
child.”7 By rejecting the “bright lines” approach tethered to heterosexual
parenting and biological ties, the court recognized the equal claims of
Contrast Brooke S.B. with Lehr v. Robertson.9 In Robertson, an
unmarried man and woman dated, cohabited, and conceived a child.10
After the child’s birth, the mother “concealed her whereabouts” from the
father until he located the child in 1978 with the help of a detective
* Professor of Law, Syracuse University College of Law. This Article was prepared for the
Fordham Law Review Family Law Symposium entitled Moore Kinship held at Fordham
University School of Law. Special thanks to Rose Cuison Villazor, Melynda Price, and
Darren Rosenblum for their invaluable insight and clarity. Additional thanks to the New
York Area Family Law Scholars Group who provided comments on an early draft, and to the
Law Review for its editorial expertise. For an overview of the symposium, see R.A.
Lenhardt & Clare Huntington, Foreword: Moore Kinship, 85 FORDHAM L. REV. 2551
agency.11 By that time, the woman had remarried and had petitioned for
her new husband to adopt the child.12
Because the biological father had not registered as a putative father, his
contact with the child was restricted.13 Although he had petitioned
separately for paternity and visitation,14 the U.S. Supreme Court held that a
biological connection alone was insufficient to raise an objection.15 Only
when the biological father “demonstrates a full commitment to the
responsibilities of parenthood” through personal contact and actual
relationship may he invoke constitutional protection.16 Thus, the Court
embraced a functional test for parenthood.
The different outcomes in Brooke S.B. and Lehr demonstrate the inherent
instability of other parents in contrast to the legal parenthood of genetic
birth mothers. Other parents’ status is relational rather than intrinsic, and it
must be earned rather than acquired at birth. In many ways, the legal
interests of other mothers and nonmarital fathers are yoked: they do not
gestate, give birth, or nurse, yet they consider themselves equally fit
parents. Other mothers and nonmarital fathers, like those in Brooke S.B.
and Lehr, are involved in the conception plan,17 whether by cooperating in
assisted reproduction or by propagative intercourse.18 Despite such
prenatal involvement and contributions, other parents’ status is less secure.
If, as the Court in Lehr reasoned, marriage is “[t]he most effective
protection of the putative father’s opportunity to develop a relationship with
his child,”19 what happens when this status is unavailable, unwanted, or
rejected? This Article examines the parental interests of nonmarital
partners of genetic birth mothers. Without the legal parents’ consent and
cooperation, other parents are reduced to legal strangers to the child.
As demonstrated in Moore v. City of East Cleveland,20 narrow legal
definitions of “family” exclude functional domestic units that may still
satisfy the intent of the applicable family law.21 And while family law
generally recognizes multiple forms of parenthood claims, it largely defers
to the primacy of maternity.22 Indeed, states privilege maternity over
11. Id. at 269.
13. Id. at 262–63 (majority opinion).
14. Id. at 252.
15. Id. at 261.
17. See Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488, 501 (N.Y. 2016) (“That
decision no longer poses any obstacle to those courts’ consideration of standing by equitable
estoppel here, if Brooke B. proves by clear and convincing evidence her allegation that a
pre-conception agreement existed.”).
18. See Lehr, 463 U.S. at 250; Brooke S.B., 61 N.E.3d at 500.
19. Lehr, 463 U.S. at 263.
20. 431 U.S. 494 (1977).
21. See id. at 505.
22. Martha Albertson Fineman, The Neutered Mother, 46 U. MIAMI L. REV. 653, 660
(1992); Ramsay Laing Klaff, The Tender Years Doctrine: A Defense, 70 CALIF. L. REV. 335,
equally valid claims to parentage, which disadvantages nontraditional
families. This Article questions this traditional presumption.
There is a robust body of scholarship23 and jurisprudence24 addressing
psychological parents, assisted reproductive technology, surrogacy, and
same-sex parents, which reinforces the primacy of heterosexual marriage
and procreation. This tradition suggests a vulnerability of parental status
involving the other parent. Now that legal parenthood can be approached in
a number of ways, it is time to take a critical look at the preeminence of
motherhood and gestation in the determination of parental status and
I. DEFINING MATERNITY
The Uniform Parentage Act (UPA) was first drafted in 1973 to
“address . . . the status of the nonmarital child.”25 Two additional acts were
enacted in 1988 and 1989 to respond to issues arising from reproductive
technologies26 and putative fathers.27 Most recently amended in 2002, the
UPA is currently adopted by nineteen states.28
The UPA provided only a brief definition of “maternity” because, when
it was drafted, there had not been many challenges to a biological mother’s
legal parenthood. At common law, which developed before assisted
reproductive technology, conclusions about childbirth and parentage for
women regarding their biological children remained unquestioned.29
Indeed, cases involving disputed maternity were thought to be so
uncommon that the initial UPA drafters dismissed the need for proliferated
legislative treatment.30 The drafters did not want to “burden these already
complex provisions with unnecessary references to the ascertainment of
Since the last UPA revision in 2002, the law has witnessed extraordinary
changes in the recognition and protection of LGBT individuals and
families. In 2003, Lawrence v. Texas32 decriminalized sodomy laws.33
Bans on gay and lesbian adoption were overturned first in Florida in 201034
and nationwide in 2016.35 And same-sex couples’ right to marry was
recognized as a fundamental right in all fifty states after the Supreme Court
handed down Obergefell v. Hodges36 in 2015.37
The 1973 UPA sought to guarantee that “all children and all parents have
equal rights with respect to each other.”38 Despite significant
transformations in family structure and diversity, the contemporary legal
conception of parenthood, and particularly maternity, reflects the core
principles of the 1970s.
Statutory resistance to recognition of the rights of other mothers
demonstrates the instability of nonbiological maternity and the difficulty of
redefining the term “parent.” In same-sex relationships, where shared
genetic parenthood is a practical and scientific impossibility, birth mothers
tautologically have superior claims to children over their partners. This
illustrates the troubling gap between the assertion of fundamental rights and
equitable claims to parenthood.
The UPA lacks a comprehensive expression of legally cognizable
“maternity” and instead relies on birth, adoption, or judicial determination,
with exceptions made for gestational agreements.39 Unlike paternity claims
that have robust statutory, judicial, and scholarly examinations, current
definitions of the “mother” are largely based on assumption and custom.40
States that have adopted the UPA continue to base parentage on a
heterosexual model that presumes the existence of at least, but not more
32. 539 U.S. 558 (2003).
33. Id. at 578.
34. See In re Matter of Adoption of X.X.G. & N.R.G., 45 So. 3d 79 (Fla. Dist. Ct. App.
35. See V.L. v. E.L., 136 S. Ct. 1017 (2016) (per curiam).
36. 135 S. Ct. 2584 (2015).
37. Id. at 2607–08.
38. UNIF. PARENTAGE ACT § 2 cmt. (NAT’L CONFERENCE OF COMM’RS OF UNIF. STATE
39. UNIF. PARENTAGE ACT § 201
(NAT’L CONFERENCE OF COMM’RS OF UNIF.
STATE LAWS 2002)
(“The mother-child relationship is established between a woman and a
child by: (1) the woman’s having given birth to the child [, except as otherwise provided in
[Article] 8]; (2) an adjudication of the woman’s maternity; [or] (3) adoption of the child by
the woman [; or (4) an adjudication confirming the woman as a parent of a child born to a
gestational mother if the agreement was validated under [Article] 8 or is enforceable under
other law].” (alterations in original)).
40. See Richard Storrow, Parenthood by Pure Intentions: Assisted Reproduction and
the Functional Approach to Parenthood, 53 HASTINGS L.J. 597, 601 (2002) (noting that the
judicial approach to maternity has yet to embrace all of its complexities—starting with
than, one woman.41 The current draft of the 2017 UPA responds to this
stagnation by setting forth a new standard emphasizing gender neutrality in
the interest of accommodating a multiplicity of families.42 This new
provision would avoid “constitutional infirmit[ies] by amending the
provisions so that they address and apply equally to same-sex couples.”43
The proposed language of the amended UPA emphasizes “parent” rather
than “mother” and “father” and deemphasizes “maternity” and “paternity”
in favor of “parentage.”44 This approach displaces the language of
marriage and the presumption of heterosexuality to make room for
additional versions of the parent-child relationship. Definitions of
parentage in the current draft are merged into a single section to
“remove . . . unnecessary distinctions based on gender.”45 Considering
birth as one of several indicia of parentage—rather than the sole indication
of parentage—allows other assertions of both male and female parentage to
receive equal weight.
II. PARENTAL PRIVILEGE
Parental status secures not only a right of access to children but also the
prerogative to exclude others. This power to exclude secures legal parents’
liberty interest46 in making decisions about their children’s care, custody,
and control.47 Third parties cannot overcome the wishes of the legal parent
who enjoys the fundamental right to make decisions about the child. Only
legal parents have this power—and courts defer to that fundamental
In Troxel v. Granville,49 the Court supported a vision of independent
parenthood free from state intrusions upon the family unit.50 The Court
struck down a Washington statute that allowed third parties to petition for
visitation over the objection of the legal parent.51 Calling the statute
“breathtakingly broad,”52 the Court precluded interested claimants
(relatives, caregivers, friends) from leapfrogging over parental decision
Although Troxel affirms judicial deference to parental autonomy, the
decision reflects a limited vision of family, reproduction, and parentage that
negates the valid interests of nontraditional families. It presumes a
common understanding of the term “parent” that is clearly demarcated by
birth, marriage, and adoption. Families that do not fit this classic triangle
illustrate the asymmetry of power enjoyed by legal parents and the power to
Legal parents are protected in their fundamental right to control access to
their children, while other parents are subject to the legal parents’
constitutional prerogatives. This is the traditional approach of relational
parenthood, which determines access to children based on the relationship
with the genetic birth mother. If a legal parent is married or in a civil
union, that partner has parental rights not due to a biological relationship to
the child54 but because of the legal relationship to the legal parent. But if
partners are unmarried, their rights are less secure—especially if they live
apart from the child. Only a legal parent has the capacity to make decisions
concerning the child’s health, education, religion, welfare, and custody and
visitation. Everyone else is a stranger in the law’s eyes.
Alison D. v. Virginia M.55 is the paradigmatic example of parental
privilege and other mother exclusion.56 In New York, two women met,
cohabited, and planned to have a child together.57 Using donor sperm, their
baby was born in July of 1981.58 They shared a household and medical
expenses and expressly agreed to split responsibility for the child’s care.59
The couple ended their relationship when their son was two and a half years
old, and the nonbiological mother moved out of the home.60 She continued
to pay for household expenses and maintained frequent visitation with the
child.61 The custodial mother restricted visitation in 1986 and cut off
communication completely when the other mother moved to Ireland for
work the following year.62
The New York Court of Appeals ruled that the nonbiological mother was
“not a ‘parent’” within the meaning of the applicable statute.63 The court,
acknowledging her “understandable concern for and interest in the child and
of her expectation and desire that her contact with the child would
continue,” held that she was not a biological or adoptive parent with
standing to seek visitation rights.64 The court rejected her claims of de
facto parenthood and parentage by estoppel, asserting that only parents
(genetic mothers and fathers) had such rights.65 Granting nonparents (other
mothers) these rights “would necessarily impair the parents’ right to
custody and control.”66
The Alison D. decision rejects the functional and performative indicators
of parenthood in its adherence to the formal definition of “mother.” While
the case was decided during an era hostile to LGBT rights,67 its insistence
on biology not only erased other nonparents but also granted the birth
mother extraordinary, singular autonomy. In this way, the genetic mother
may receive the unilateral care and support from the other mother without
obligation to release her exclusionary parental power. In the same way that
a landlord may oust a nonconforming tenant from rented property, the legal
parent can evict others at will.68
III. MARITAL SECURITY
Like much of family law, the determination of rights, protections, and
privileges revolves around marriage.69 Marriage performs a “gatekeeping
function”70 that ensures the primacy of the spouse’s claim over children
born into the marriage and definitively identifies a particular individual as
the other parent. Like all spouses of genetic mothers, other parents’ rights
to the child are relational—not inherent—regardless of any biological
relationship. It must be more than biology alone—they must perform the
act of parenting. This only occurs when access is granted. Their legal
existence as a parent is predicated upon consent: their own consent to
marriage or the biological birth mother’s consent to that parental
Marriage is especially important to nonbiological parents in same-sex
relationships. Now that the Supreme Court has recognized marriage as a
cognizable constitutional right,71 the traditional concept of parenthood is
ripe for profound reexamination.72 Because marriage has historically
focused on heterosexual relations and reproduction, the rhetoric and
expectations around the institution must change to reflect new articulations
of legitimacy. Yet there is still a dearth of statutory language expressing a
marital presumption of parentage for the other parent in a same-sex couple.
In McLaughlin v. Jones,73 two women married in California in 2008.74
Both planned to conceive a child with donor sperm, but only one become
pregnant.75 Before the birth, the couple signed a coparenting agreement
that waived all laws giving the birth mother greater rights to custody and
visitation.76 The child was born in 2011, and the marriage broke down in
2013.77 Cutting off contact with the child, the genetic birth mother asserted
herself as “the only parent and therefore the only person who has parental
rights, which are fundamental rights.”78
McLaughlin represents deliberately planned, mutually agreed upon
parenting—the pregnancy in question was not accidental, unilateral, or
coercive. The women mutually agreed to have children together, made
possible by technologies enabling reproductive opportunities beyond
heterosexual coitus. Yet, only the genetic birth mother can claim the
categorical security of parental status and the concomitant right to exclude.
The “co-mother,” or other mother, has no independent right of her own.
What is the meaning of paternity in a marriage when there is no father?
The Arizona Court of Appeals held that the marital presumption of
parentage rightfully includes female spouses because paternity
“encompasses the notion of parenthood . . . voluntarily established without
regard to biology.”79 Even though the other mother did not carry the child,
she may assert relational rights through marriage.80
The difficult question is whether maternity alone should shield genetic
birth mothers from challenges to their authority over children. Does the
physical act of carrying the child to term bestow superior rights? Surrogacy
cases provide some insight into this question.
Gestation alone does not automatically qualify the carrier as a mother.
Under traditional surrogacy, which has recently become disfavored by
intended parents,81 the gestational carrier uses her own ova, which gives her
a genetic link to the child. By contrast, gestational surrogacy is
distinguished by the lack of a genetic link to the child.
In the well-known New Jersey case In re Baby M,82 the intended parents,
William and Elizabeth Stern, paid $10,000 to Mary Beth Whitehead to
become pregnant through artificial insemination with William’s sperm.83
They did not use donor ova, making Whitehead the biological mother of the
child.84 The parties entered into a contract where Whitehead would give
birth and then surrender her maternal rights to the adoptive parents.85 But
after the birth, Whitehead changed her mind and insisted upon keeping the
The New Jersey Supreme Court reversed a lower court decision to
enforce the contract.87 Recognizing the conflict between the parties as an
“escalating dispute about rights, morality, and power,” the court viewed the
surrogacy agreement as the “sale of a mother’s right to her child.”88
Indeed, the court described the monetary payment to Whitehead as a form
of “loathsome” baby bartering.89 Still, the court found that placing the
child with the Sterns was in the child’s best interests; Baby M would be
raised by the intended parents.90
The California Supreme Court took a substantively different approach in
Johnson v. Calvert.91 In 1990, Mark and Crispina Calvert signed a
surrogacy contract with Anna Johnson.92 Johnson was implanted with an
embryo created with Mark’s sperm and Crispina’s egg.93 The Calverts
agreed to pay Johnson $10,000, plus a $200,000 life insurance policy.94
The relationship between the parties broke down, and Johnson threatened to
keep the child unless she received full payment of her fee.95 The Calverts
responded with a lawsuit seeking a declaratory judgment that they were the
legal parents.96 The trial court held that the surrogacy contract was valid
and the Calverts were the “genetic, biological, and natural” parents.97
On appeal, the court determined that the UPA, adopted by California in
1975, encompassed parental intention in surrogacy contracts and other
alternative reproductions.98 When genetics and gestation do not coincide
within the same woman, then the woman who “intended to bring about the
birth of a child that she intended to raise as her own” is the natural
mother.99 This purposeful reproduction denies the gestational carrier of any
constitutional rights under California law.
Courts have taken a significantly different approach to maternity when
both mothers have a biological role in gestation. One mother may donate
her ova to her female partner with the intent of conceiving a child.100 Like
the distinction between traditional and gestational surrogacy, the donor’s
rights are not securely protected without clear statutory articulations of her
maternal rights. Biology alone is insufficient to declare her an intended
In K.M. v. E.G.,101 a couple who had registered as domestic partners
decided to conceive a child to raise together.102 K.M. donated ova to E.G.
and signed a consent form in March 1995 acknowledging her donation and
waiving her rights to the ova or any child resulting from pregnancy.103
K.M.’s form stated, “I specifically disclaim and waive any right in or any
child that may be conceived as a result of the use of any ovum or egg of
mine, and I agree not to attempt to discover the identity of the recipient
thereof.”104 Similarly, E.G. signed a separate consent form that read, “I
acknowledge that the child or children produced by the IVF procedure is
and shall be my own legitimate child or children and the heir or heirs of my
body with all rights and privileges accompanying such status.”105 K.M.
testified that she believed the language to be inapplicable because she was
the intended, identifiable parent.106 E.G. gave birth to twins in December
The couple raised the children together, but the relationship dissolved in
2001.108 E.G. argued that she never intended for K.M. to be a mother and
that she intended to raise the children as her own.109 Under California law,
“true ‘egg donation’” with an anonymous donor and a gestational carrier
with intent to parent deems the birth mother the natural mother.110
But the California Supreme Court recognized K.M.’s relationship to the
children under the UPA. Regardless of the disagreement between the
women as to how to define who was the parent, the women both intended
for the child to be raised in their joint home.111 Clarifying the intent rule
laid down in Calvert, the court made room for both birth and biology as
definitive evidence of a mother-child relationship.112 Finding that intent
100. One commentator has called this mother the “ova mother.” Catherine Villareale,
Note, The Case of Two Biological Intended Mothers: Illustrating the Need to Statutorily
Define Maternity in Maryland, 42 U. BALT. L. REV. 365, 373 (2013).
101. 117 P.3d 673 (Cal. 2005).
102. Id. at 676.
108. Id. at 675.
109. Id. at 683 (Werdegar, J., dissenting).
110. Id. at 684.
111. Id. at 680 (majority opinion).
and biology took precedence over boilerplate language, the court dismissed
the effect of K.M.’s waiver and declared her a parent.113
V. DEFENSES AND CRITIQUES OF MATERNITY
The question remains as to whether the “mother’s” status deserves
exceptional treatment and deference. This conversation is complicated by
the multiple forms of maternal claims currently available. The dissent in
K.M. urges caution in declaring ova donors’ rights as equal to those of the
partners’ because it interferes with the constitutional rights of the birth
mother.114 Viewing maternal rights in this way, as a distinct and finite
commodity, cannot account for multiple mothers in one family. This view
can exist only in the absence of—not coexistence with—other mothers.
Other commentators have expressed similar views of maternal
exceptionalism. Scholar Martha Fineman argues that gender-neutral
language in family law devalues women’s roles in mothering.115 The
failure to view motherhood as a unique concept sacrifices the highly
gendered contributions of women to childbirth and child rearing to the
“legal[ly] generic category of ‘Parent.’”116 Explaining that the
“Mother/Child dyad . . . [is] ‘[t]he most vivid and shared image of
connection,’”117 Fineman rejects decentering motherhood in the interest of
supporting “those who have constructed their lives around gendered
Fineman’s nuanced position regarding the exceptionalism of motherhood
stands in contrast to the standard of maternal deference advocated for by
other commentators.119 Scholar Rena K. Uviller argued that the adoption of
gender equality in custody disputes fails to “take into account the mother’s
disproportionate child rearing responsibilities in the early years.”120 Uviller
also viewed fathers’ rights and parental neutrality as “indictment[s] against
American feminism” that run counter to the majority of women’s
interests.121 Similarly, Mary Becker contended that mothers have closer
bonds to children because of “emotional consequences of the reproductive
labor—pregnancy, labor, nursing—done only by women.”122 Under this
view, women have more intense attachments to children that advantage
them in determining the best interests of children.123
Adopting a “lesbian ethic,”124 in the words of the late Paula Ettelbrick,
complicates this dialogue venerating childbirth and genetics as
incomparable qualifiers of parenthood. Additionally, this disrupts the use
of gender as a predictable shorthand for the division of domestic labor and
the determination of parentage. Instead, Ettelbrick advocated a “functional
indicia” of parenthood to replace blind adherence to biology and birth:
emotional attachment, financial support, and physical custody of the
Newly inclusive concepts of family construction demand a
transformation of the statutory frameworks that have long shaped a
collective understanding of reproduction and kinship. States must change
to reflect a new articulation of maternity. While marriage serves to clarify
the ambiguities of determining parentage, nonmarital parenting and
nonbiological “paternity” is much less secure and in need of explication.
This legal lacuna allows birth mothers to capitalize upon and benefit from
heteronormative constructions of parent-child relationships.
The challenges other mothers face expose deep-seated assumptions about
biology, gender, and parenting. If nongestational mothers, such as adoptive
or intended mothers, do not give birth, should they have weaker parental
rights than birth mothers?126 In male-female dyads, considering mothers as
inherently bonded to children cements the status of women as superior
nurturers and caregivers. This also presupposes pregnancy and biological
function as defining maternal characteristics.
This presupposition leaves other mothers with no rights in opposition to
birth mothers’ exclusionary right to govern access to children. If
performance and labor were authoritative indicia of asserting parental
rights, other mothers would qualify based on their intentionality. The
tenuous rights of other mothers, dependent on consent by the birth mother,
demonstrate the inability of the current legal system to effectuate the
traditionally nonnormative interests of newly normative families.
23. See , e.g., JOSEPH GOLDSTEIN , ANNA FREUD & ALBERT J. SOLNIT , BEYOND THE BEST INTERESTS OF THE CHILD 17-20 ( 1973 ) (articulating the indicia of psychological parenting as daily interaction, companionship , and shared experiences); Martin F. Leonard & Sally Provence , The Development of Parent Child Relationships and the Psychological Parent , 53 CONN. B.J. 320 , 327 ( 1979 ).
24. See , e.g., Christian v . Randall , 516 P. 2d 132 ( Colo. App . 1973 ) (holding that transsexual orientation was an insufficient ground for a change in child custody); Lippens v . Powers , 179 So. 3d 374 (Fla . Dist. Ct. App. 2015 ) (reversing an injunction for protection against stalking for a nonbiological parent maintaining contact her with daughter); In re Matter of Adoption of X.X.G. & N.R.G. , 45 So. 3d 79 (Fla . Dist. Ct. App. 2010 ) (overturning Florida's ban on gay adoption); Moses v . King , 637 S.E. 2d 97 (Ga . Ct. App. 2006 ) (finding same-sex cohabition insufficient grounds to modify custody).
25. UNIF. PARENTAGE ACT (NAT'L CONFERENCE OF COMM'RS OF UNIF . STATE LAWS 2002 ).
26. UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT (NAT'L CONFERENCE OF COMM'RS OF UNIF . STATE LAWS 1989 ).
27. UNIF. PUTATIVE & UNKNOWN FATHERS ACT (UNIF. LAW COMM'N 1988).
28. Why States Should Adopt UPA , UNIFORM L. COMMISSION, http:// www.uniformlaws.org/Narrative.aspx?title= Why%20States%20Should%20Adopt%20UPA (last visited Apr . 14 , 2017 ) [https://perma.cc/LX3U-2M2Z].
29. See Anne Reichman Schiff, Solomnic Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 IOWA L . REV. 265 , 267 - 68 ( 1995 ).
30. UNIF. PARENTAGE ACT § 106 cmt .
66. Id . The court's demonstrative syntax, referring to the “impair[ing] [of] the parents' right,” reveals a baseline assumption of two biological parents, male and female . Id . (emphasis added). The court employs the article “the” rather than “a” and the plural possessive of “parents'” rather than the singular possessive “parent's.”
67. See Bowers v. Hardwick , 478 U.S. 186 , 196 ( 1986 ) (upholding a Georgia law banning sodomy only six years before Alison D. was decided).
68. Property theory invokes rights of possession, ownership, and exchange. Such property analogies for the care and control of children effectively denote the legal parent's dominion over the child . Family law's approach to parental rights as indivisible, flat, and finite, mirrors these doctrinal interests. See Kevin Noble Maillard, Rethinking Children as Property: The Transitive Family, 32 CARDOZO L . REV. 225 , 229 ( 2010 ).
69. See Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families , 67 STAN. L. REV. 167 , 168 ( 2015 ).
70. Douglas NeJaime , Marriage Equality and the New Parenthood , 129 HARV. L. REV. 1185 , 1204 ( 2016 ).
71. See Obergefell v. Hodges , 135 S. Ct . 2584 ( 2015 ).
72. NeJaime, supra note 70, at 1187.
113. Id . at 682.
114. “ We cannot recognize K.M. as a parent without diminishing E .G.' s existing parental rights .” Id. at 688 (Werdegar, J., dissenting).
115. Fineman , supra note 22, at 660.
116. Id .
117. Dorothy E. Roberts, The Unrealized Power of Mother, 5 COLUM . J. GENDER & L. 141 , 145 ( 1995 ) (citing MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY , AND OTHER TWENTIETH CENTURY TRAGEDIES 234 ( 1995 )).
118. Fineman , supra note 22, at 666.
119. Mary Becker , Maternal Feelings: Myth, Taboo, and Child Custody, 1 S. CAL. REV . L. & WOMEN'S STUD . 133 ( 1992 ) (arguing for judicial deference to fit mothers); Rena K. Uviller, Fathers' Rights and Feminism: The Maternal Presumption Revisited, 1 HARV . WOMEN'S L.J . 107 , 116 ( 1978 ) (rejecting the equal footing of mothers and fathers for custody decisions ).
120. Uviller , supra note 119, at 112.
121. Id . at 121.
122. Becker , supra note 119, at 142.
123. Id . at 142-43.
124. Paula L. Ettelbrick , Who Is a Parent?: The Need to Develop a Lesbian Conscious Family Law, 10 N.Y.L. SCH . J. HUM. RTS . 513 , 547 ( 1993 ).
125. Id . at 528.
126. See Suzanne B. Goldberg , Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. v . Virginia M., 17 COLUM. J. GENDER & L. 307 , 307 ( 2008 ) (describing law's disinterest in love and attachment ).