What Makes a Family? Pushing States to Expand the Definition

The journey toward family equality in the United States has been one of progress, but haltingly so.

From the abolition of chattel slavery to the ending of Jim Crow laws targeting Black families, through LGBTQ+ marriage equality to ongoing attempts to reform and/or abolish the US child welfare system—the struggle for equality, dignity, and protection under the law for families of all kinds remains very much ongoing.

Take, for example, the Uniform Parentage Act. This body of law was originally put forward in the early seventies as a set of legislative recommendations meant to create a “uniform” legal definition of parenthood that included families in which children were born to unmarried couples. Through updates over the decades, it has come to embody parentage rights for LGBTQ+ parents, as well as those who become parents through surrogacy or other less conventional means.

The struggle for equality, dignity, and protection under the law for families of all kinds remains very much ongoing.

The 1973 laws have been enacted by only about half of the states—while even fewer states have enacted more expansive updates put forward in 2002 and 2017. The nonprofit Family Equality is one leading organization trying to solidify and expand progress toward family equality that remains uneven and fractured across the nation.

Their mission toward that end, says Family Equality’s LGBTQ+ Family Law and Policy director Meg York, includes “making sure that all parents and children can create that legal bond with one another, regardless of their sexual orientation, gender identity, or circumstances of their birth.”

Right now, that push has focused largely on encouraging and pressuring states to adopt the 2017 updates to the Uniform Parentage Act—and they have a long way to go.

Expanding Parentage

The [Uniform Parentage Act] prioritizes relationships over legal constructs such as marriage or genetic parentage.

The Uniform Parentage Act, originally promulgated in 1973 by the National Conference of Commissioners of Uniform State Laws, was aimed at creating consistency among state laws regarding parentage, particularly when it came to children born to unmarried couples—children sometimes (and cruelly) dubbed “illegitimate.”

Updates to the act in 2002 and 2017 expanded upon this theme by specifying and recognizing other forms of parentage—whether among LGBTQ+ couples, couples who become parents through egg or embryo donation or surrogacy, or other means by which people become parents.

In essence, the act prioritizes relationships over legal constructs such as marriage or genetic parentage. It facilitates and recognizes parentage “no matter what the sexual orientation of the parents is and no matter what their marital status is,” as York puts it—while also elucidating cases in which the concept of parentage is not appropriate, such as sexual assault.

Such protections are especially relevant to many LGBTQ+ families but also to a widening cross section of US families that don’t match “traditional” family models.

“Historically, the way that family has been framed is this idea of two parents who are married to one another, who have a child, and they all share genetics. And that’s just not really reflective of families today, LGBTQ or not,” notes York. Including and beyond LGBTQ+ families, in which a child may not share a genetic link with one or both parents, “families come in all shapes and sizes.”

“You have couples who’ve used assisted reproduction where they share the genetics, potentially with one parent or possibly no parent,” York says. “You have people who’ve stepped into a parental role and have engaged with the child as a parent for many years of that child’s life but share no legal or genetic connection to that child. And, of course, we have adoption.”

By adopting the Uniform Parentage Act, York and other advocates for the legal framework say, states can go a long way toward closing those gaps in recognition of all families.

A Patchwork of Parentage Laws

Only about half of the states have adopted these legal recommendations in whole, in part, or via similar laws. Even those that have adopted the legal recommendations haven’t updated those laws in accordance with the most recent 2017 revision.

The result is that parentage, far from a universally defined and uniform concept in the United States, is instead defined, understood, and arbitrated according to a patchwork of laws—some offering profoundly less protection and recognition of “nontraditional” families. That means that crucial family bonds can be profoundly affected just by geography.

“Whether or not somebody is having these secure or enduring relationships then depends largely on where they live, which is unsettling. So, when people move, if the relationship breaks down or something happens to the parent, that can create some real problems in figuring out courts, having to determine who the child’s parents are,” says York.

“What we’re trying to do,” York continues, “is make sure that children can maintain an enduring legal relationship with their primary caregiver, and in most circumstances, that’s their parents.”

Protecting Children’s Right to Parentage

Updating these laws, according to York and other advocates, is as much about protecting children as it is about parents.

GLBTQ Legal Advocates and Defenders, or GLAD of Massachusetts, which is pushing the Massachusetts Legislature to adopt the 2017 revisions to the Uniform Parentage Act, calls the local bill that would do so “critical to ensuring that all children can access the security of legal parentage, regardless of the circumstances of their birth,” noting that all other New England states have already adopted similar “comprehensive parentage protections.”

The consequences of messy, outdated, or outright discriminatory parentage laws can be profound for parents and children. Without recognized parentage, break-ups can lead to traumatic separation of children and their caregivers. Legal disputes, medical problems or deaths, unexpected life changes—all can wreak havoc on relationships governed by parentage laws that fail to recognize and honor the broad spectrum of parentage in the United States.

“The destruction of these [parental] relationships is what causes traumas to kids,” notes York. “And just because somebody might not share a genetic connection with their parent doesn’t mean that that parent/child relationship is less than any other parent/child relationship.”