Marriage, Biology, and Federal Benefits
This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.
Taking Account of ARTs in Determining Parenthood: A Troubling Dispute in California
Although small in number, ARTs cases force us to think about what makes a family. In debating them, we reveal our attitudes about the body, biology and genetics, about psychology and environment, about human connection and responsibility, about the role of intentions and plans in our lives and in our law. To resolve ARTs disputes, some courts adopt intent-based approaches. Others continue to rely on family law statutes and judicial precedents that were written before new procreative techniques developed. For example, courts resolve ARTs cases based on analogies to unwed parents' rights, adoption or "baby-selling". Differences between traditional routes to parenthood and ARTs render these analogies inapposite. Situations giving rise to ARTs disputes have not, would not, and indeed sometimes could not have arisen before. Poor choices by courts can thrust individuals who have no previous sexual or social relationship, and no mutually bargained-for expectations, into decades of conflict over parental status and child-rearing. A recent California case, Robert B. v. Susan B., provides a heart-wrenching example of such a dispute. Both the trial and appellate courts in Susan's case claimed that they were following the plain meaning of statutes, simply declining to fill gaps left by the legislature. Certainly, legislatures should address these new types of disputes, but courts should understand that applying literal readings of outdated statutes, and relying on unpersuasive analogies to coital reproduction, are de facto exercises of judicial discretion that often create tragic results.
How parents whose children have been conceived with donor gametes make their disclosure decision: contexts, influences, and couple dynamics.
OBJECTIVE
To describe parents' disclosure decision-making process.


DESIGN
In-depth ethnographic interviews.


SETTING
Participants were recruited from 11 medical infertility practices and 1 sperm bank in Northern California.


PATIENT(S)
One hundred forty-one married couples who had conceived a child using donor gametes (62 with donor sperm, 79 with donor oocytes).


INTERVENTION(S)
Husbands and wives were interviewed together and separately.


MAIN OUTCOME MEASURE(S)
Thematic analysis of interview transcripts.


RESULT(S)
Ninety-five percent of couples came to a united disclosure decision, some "intuitively," but most after discussions influenced by the couples' local sociopolitical environment, professional opinion, counseling, religious and cultural background, family relationships, and individual personal, psychological, and ethical beliefs. Couples who were not initially in agreement ultimately came to a decision after one partner deferred to the wishes or opinions of the other. Deferral could reflect the result of a prior agreement, one partner's recognition of the other's experiential or emotional expertise, or direct persuasion. In disclosing couples, men frequently deferred to their wives, whereas, in nondisclosing couples, women always deferred to their husbands.


CONCLUSION(S)
Although the majority of couples were in initial agreement about disclosure, for many the disclosure decision was a complex, negotiated process reflecting a wide range of influences and contexts.