107 Iowa L. Rev. 903 (2022)

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Abstract

This Note argues for the federal government to institute a plan to provide voluntary acknowledgments of parentage to married same-sex female couples, just as they are provided to unwed fathers under 45 C.F.R. § 303.5. This process would protect a non-birthing mother’s right to legal parenthood and exert control over the care and custody of any child born to her spouse during their marriage as an intended parent. Currently, same-sex non-birthing married females are only listed on a child’s birth certificate, which does not establish legal parenthood for same-sex couples reproducing through artificial insemination. The current state of parentage for nonbirthing same-sex mothers is too uncertain, as some states refuse to recognize legal parentage for the non-birthing mother. This is true even in situations where the marital presumption—the presumption one’s spouse is the parent of a child born into the marriage—is at play. This Note examines the history of same-sex marriage and parentage, the importance of changing the current state of parentage for married same-sex mothers, and how the federal government may be the answer to the problem of state denial of legal parentage to married same-sex mothers.