65 Md. L. Rev. 246 (2006)
Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption

handle is hein.journals/mllr65 and id is 254 raw text is: 



    MARRIAGE, BIOLOGY, AND PATERNITY: THE CASE FOR
          REVITALIZING THE MARITAL PRESUMPTION

                             JANA SINGER*

     One of the most striking developments in family law over the past
three decades has been the increasing dissociation of marriage and
legal parenthood. In many ways, this dissociation has been both a
necessary and a good thing. It has been good for the now more than
one-third of American children who are born outside of marriage, in
that it has facilitated their connection to-and allowed them to access
the resources and social capital of-two biologically related adults.' It
has also provided some protection to the many lesbian and gay
couples who are still (in forty-nine states at least) excluded from mar-
riage but who have made a commitment to nurturing and rearing
children together.2 And it has enhanced the financial resources avail-
able to many single parents (still overwhelmingly, but not exclusively,
mothers) who do the vital day-to-day work of simultaneously nurturing
and providing economically for their children.3
     But the dissociation of marriage and parenthood has had some
negative-perhaps unanticipated-consequences as well. One of
those consequences has been the erosion of the marital presumption
of paternity as a substantive basis for ascribing parental rights and re-
sponsibilities. Traditionally, the marital presumption assigned legal


    * Professor, University of Maryland School of Law.
    1. According to the Centers for Disease Control and Prevention, 34% of all births in
the United States in 2002 were to unmarried women, up from 33.5% the previous year.
JOYCE A. MARTIN ET AL., U.S. DEP'T OF HEALTH & HUMAN SERVS., BIRTHS: FINAL DATA FOR
2002, 52 NATIONAL VITAL STATISTICS REPORTS No. 10, at 8-10 (2003), available at http://
www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52-I.0.pdf.
    2. Massachusetts is the only state that currently recognizes same-sex marriage. Good-
ridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003). According to the 2000 census,
more than 590,000 households self-identified as same-sex unmarried partners, represent-
ing nearly 1.2 million adults. JUDITH BRADFORD ET AL., NAT'L GAY & LESBIAN TASK FORCE
POLICY INST., THE 2000 CENSUS AND SAME-SEx HOUSEHOLDS: A USER'S GUIDE 1 (2002),
available at http://www.thetaskforce.org/downloads/census/CensusFull.pdf. Demogra-
phers estimate that between 22% and 28% of lesbian households and between 5% and
14% of gay male households include children. Id. at 10; Dan Black et al., Demographics of
the Gay and Lesbian Population in the United States: Evidence from Available Systematic Data
Sources, 37 DEMOGRAPHY 139, 150 (2000).
    3. In 2002, approximately 16.5 million children were living with a single mother,
while 3.3 million children were living with a single father. JASON FIELDS, U.S. CENSUS Bu-
REAU, CHILDREN'S LMVING ARRANGEMENTS AND CHARACTERISTICS: MARCH 2002, at 2 tbl.1
(2003), available at http://www.census.gov/prod/2003pubs/p20-547.pdf.

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