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Published in Regent University Law Review, 21, 2008, 1.


This Article examines the legal and policy implications that arise when two women involved in a same-sex relationship both claim motherhood status to a child who is biologically related to only one of them. These cases involve a biological mother who is artificially inseminated with donor sperm and gives birth while she is involved in a same-sex relationship. When the relationship ends, courts are asked to decide whether the former same-sex partner, who has no legal or biological relationship to the child, should be treated as a parent to the child for custody and visitation purposes. Since the United States Supreme Court’s 2000 decision in Troxel v. Granville, 530 U.S. 57 (2000) (grandparent visitation case), eleven state supreme courts and dozens of lower courts have grappled with whether a third party can be given parentage rights over the objections of the child’s fit biological parent. This article begins by briefly presenting three recent state Supreme Court cases where courts were asked to decide parentage of a child born to one woman while she was in a same-sex relationship, and then tracing parental rights’ precedent. Next, this article analyzes the different legal approaches adopted throughout the nation concerning the rights of fit biological parents when faced with similar third party parentage claims. Finally, this article presents a proposal for the proper constitutional analysis of these claims, asserting that such claims must be denied unless the government has a compelling interest to issue the order, which is narrowly tailored to serve that interest. Practically, unless a biological or adoptive parent is unfit, the parental choice to deny visitation or custody to the former partner must be respected.

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