An increasing number of unmarried women are choosing to become mothers. These unmarried mothers-by-choice, unlike the familiar and sometimes tragic unmarried mothers-by-accident, have intentionally become pregnant outside of marriage, intending to raise their child without the father’s participation. Some unmarried mothers-by-choice conceive by artificial insemination, while others conceive naturally. In both cases, the biological fathers of their children understand that they will not act as their children’s legal or social fathers.
The law governing family relations is ill-prepared to respond to nonmarital mothering-by-choice. Family law has traditionally assumed that childbirth outside of marriage is accidental, and that the best interests of both mother and child lie in the establishment of a legal father-child relationship. Within this framework, the unmarried mother who objects to the establishment of a legal relationship between her child and her child’s biological father seems a curiosity.
The decision of the unmarried mother-by-choice to raise her children in a nonmarital family creates a potential conflict between her rights and interests and those of her children. Her choice implicates her constitutionally protected rights to procreate and to preserve family autonomy. For women whose decision to become unmarried mothers is grounded in feminist political principles, first amendment associational rights are also at stake.
These rights must be balanced, however, against the constitutional right of her children to the equal protection of the law.0 To the extent that the enforcement of legal rights against biological fathers benefits nonmarital children, the failure of the state to enforce these rights arguably denies nonmarital children equal protection of the law. The right to child support is the most obvious such advantage. Although the Supreme Court has issued numerous decisions concerning procreative rights, the right to family autonomy, and the rights of nonmarital children, it has not yet resolved the tension between an unmarried woman’s right to procreative and family autonomy and her child’s right to equal protection of the law.
An opportunity for the Court to address this conflict may soon arrive. In 1973, the National Conference of Commissioners on Uniform State Laws enacted the Uniform Parentage Act (UPA), in response to Supreme Court rulings on the rights of nonmarital children and parents. To date, nine states have adopted the UPA, and others may follow. The UPA defines the legal relations between nonmarital children and their parents, but ignores the potential conflict between the rights of nonmarital children and the rights of unmarried women to procreative and family autonomy. The UPA blocks all avenues through which an unmarried woman might establish a family in which her child has no legal father.
This Article proposes a resolution of this conflict. It analyzes the constitutionality of the UPA as applied to unmarried mothers-by-choice who raise their children by themselves or with other women as coparents, and without the biological fathers’ involvement. The legal status of nonmarital motherhood through natural conception and conception by artificial insemination are both considered. The Article concludes that the UPA unnecessarily and unconstitutionally infringes upon the rights of unmarried mothers-by-choice. Two amendments to the UPA are proposed as a remedy, and it is argued that the amended UPA would adequately protect the rights of both unmarried mothers-by-choice and their children.
Matthew I. Fraidin∞ This is a transcript of a speech given by Professor Fraidin at the N.Y.U. Family Defense Clinic’s 25th Anniversary Celebration Symposium, held on April 7, 2016. This is the life of a family defense lawyer: A 17-year-old
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