Is What We Want What We Need, and Can We Get It in Writing? The Third-Wave of Feminism Hits the Beach of Modern Parentage Presumptions

Abstract

Modern statutes on parentage regarding artificial insemination and the cases that have interpreted them reflect the explosion of family gender roles by second-wave feminism. Although a natural father now is generally expected to share the rights and obligations of parentage with a natural mother, this is not so if he is a mere contributor of biological material. Are the modern presumptions underlying such statutes, what we used to want, what we have come to need? Or, is current law too much a reflection of the essentialism for which the second-wave is sometimes justly criticized?Third-wave individualism and resistance to inflexible doctrine supply interesting lenses for an examination of the developing law in this area. Particularly, a recent Kansas 1 case, In the Interest of K.M.H., is the first to evaluate a statute designed to give power to individual choice by making a parentage presumption secondary to an agreement between a woman and a sperm donor that the donor will be treated as a parent.This paper explores the context and outcome of this case and whether we have exhausted the limits of legal reform that can be achieved through the creation of- even progressive - presumptions about parentage. Given the changes wrought under the influence of the second-wave, do such presumptions retain vitality and usefulness? Or, do they produce only a different, but not necessarily better, set of obstacles to formation and preservation of individual families and their informed choices