Gender Neutrality and Presumed Mothers

Sorry for the long break from blogging -- I'm teaching a law school course this semester on top of everything else (law practice, family), and it's taking up an inordinate amount of my time. Which brings me to the issue of presumed mothers, which we debated in my class last night. Some background: Traditionally, there were only two ways that a man became a legal father: by being married to a woman who gave birth, or by adoption. The "married to a woman who gave birth" route was codified in what is commonly referred to as a "marital presumption of paternity." In California, the marital presumption is found at Family Code section 7540, which says that "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be the child of the marriage." Historically, the marital presumption made complete sense. After all, it's only recently that we can actually tell with a high degree of scientific certainty who a child's genetic father is. Until recently, it was all a matter of supposing -- so it made sense to suppose that a child born to a married woman who was living with her husband when she became pregnant was the husband's child -- assuming the husband wasn't "impotent or sterile." Now, moving into the 21st Century, we have a problem. First of all, we now can know for certain who the genetic father is, and we're finding out that it isn't the husband in a truly amazing number of cases. One study estimates that 1 in 25 fathers is "unknowingly raising another man's child." (For more on this, see http://www.levingsdivorcemagazine.com/archive/fall_05/paternity_question.html.) But beyond that, we now have a policy that the Family Code is to be interpreted in a gender neutral manner "wherever practicable." Which brings us to presumed mothers. Say a married woman has an affair and gets pregnant, but stays with her husband. He has first dibs on the baby, under the marital presumption. In other words, if he wants to stay with his unfaithful wife and raise the child with her, he will be deemed to be the child's legal father. Even if the biological father wants to assert himself as the "true" father, he generally will lose. This is because we, as a society, have made a public policy decision to support the marital family, and allowing others to interfere with this family from outside -- even if they have a great reason to want to interfere, like being the "real" father -- would undermine this policy. Okay, now say a married man has an affair and gets his girlfriend pregnant, but continues to reside with his wife. Should his wife be presumed to be the mother of the child? If so, should the married couple be able to strip the child from its birth mother, potentially over her objection? This would be the outcome of a gender neutral reading of the marital presumption. And we like gender neutrality, right?? This issue has actually come up in a case in Los Angeles. Under the facts of that case, the child probably should remain with the husband and wife. But looking at the big picture, I'm getting mighty nervous about turning birth mothers into incubators. The thing that makes surrogacy an ethical option for procreating is the fact that the surrogate goes into it with her eyes wide open and is fairly compensated for her services. A marital presumption of maternity is going to result in women who think they are unwed mothers instead being deemed unintentional surrogates for the father and his wife. That can't be right, can it??