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92 Chi.-Kent L. Rev. [i] (2017)

handle is hein.journals/chknt92 and id is 1 raw text is: CHICAGO-KENT LAW REVIEW VOLUME 92 2017 NUMBER 1 CONTENTS CHANGING AMERICAN STATE AND FEDERAL CHILDCARE LAWS SYMPOSIUM EDITOR JEFFREY A. PARNESS INTRODUCTION Jeffrey A. Parness 3 PARENTS, BABIES, AND MORE PARENTS June Carbone 9 & Naomi Cahn This Article makes two basic points. First, the three-parent family is here. Once states accept that parenthood does not depend on either biology or mar- riage, then three parents are inevitable unless the states go out of their way to rule that adults who otherwise meet their definitions of parenthood will not be recog- nized. Second, as three-parent family recognition increases, there are difficult questions on how to manage the status of each parent. This difficulty arises be- cause the two major trends in the family law-the recognition of a multiplicity of family forms and the insistence on parental equality-are on a collision course. Accordingly, in the Article, we first address how the various frameworks for legal parenthood are consistent with recognition of more than two parents, how existing law is moving toward such recognition, and how marriage equality is likely to increase the pressure to acknowledge a variety of alternative family arrange- ments. Second, we review the existing cases and statutes that have fostered recog- nition of more than two parents, and document the failure to develop understandings about what such recognition entails when it comes to raising a child. Third, we discuss the problems that would arise if the courts were to try to recognize multiple adults as parents and accord them equal standing in accordance with existing law. Finally, we argue that the solutions lie in a more flexible ap- proach that permits recognition of a primary caretaker principle in those cases with more than two adults who function as parents. OBERGEFELL'S AMBIGUOUS IMPACT ON LEGAL PARENTAGE Leslie Joan Harris 55 For more than thirty years, the central questions of the law of parentage have been when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child's biological parent, or functioning as or intending to be a parent. In Obergefell v. Hodges, the Supreme Court endorsed the claim that children whose parents are married are better off socially and le- gally than nonmarital children; its language could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court's argument assumes that the same-sex couple-both members-are in fact parents of the children, even though it is highly likely that only one adult is biologically related to child. The unspoken premise of the argument is that both

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