In Part I of this article, Dalton briefly reviews the way legal scholars commonly define sex-based discrimination, particularly as it pertains to issues of reproduction. Part II is a brief historical review of legal constructions of parenthood. In Part III, Dalton examines two legal concepts: retroactive legitimation and presumed fatherhood. Both concepts were introduced in 1872 and each independently encouraged judges to think of fatherhood as consisting of two distinct spheres, the biological and the social. She then traces the legal development of these concepts through a series of presumed father, retroactive legitimation, and putative father cases. In Part IV Dalton extends the analysis to include legal constructions of motherhood by introducing lesbian co-mother and female surrogacy cases into the mix. This allows the author to directly compare legal constructions of motherhood to legal constructions of fatherhood. In Part V Dalton discusses gendered aspects of the legal institution of marriage and the complicated role marriage plays in legal constructions of parenthood. In Part VI she delves into several recent lesbian co-mother and surrogacy cases to explore how some judges are attempting to expand legal constructions of motherhood in ways that would bring them more on par with legal constructions of fatherhood. And finally, in Part VII, Dalton offers final remarks and concludes that judges' inability to conceive of a gender neutral subject, at least when considering issues related to human reproduction, creates serious legal disadvantages for virtually all women. As the analysis below makes clear, the resulting discrimination is grounded in gendered constructions of parenthood and not, as many courts conclude, in the biological differences between men and women.
Susan E. Dalton,
From Presumed Fathers to Lesbian Mothers: Sex Discrimination and the Legal Construction of Parenthood,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol9/iss2/2