In a small town called Bethlehem, the famous story goes, a young virgin woman gave birth to a son. At the heart of this story lies an enigma that would transform Western civilization: if a woman becomes pregnant without engaging in sexual intercourse with a man, then who is the father of her child? In the twenty-first century United States, the proliferation of assisted reproductive technology (ART) has given this metaphysical question a new significance. More specifically, how the law assigns paternity outside of sexual intercourse is relevant for all men who participate in ART and become “virgin fathers.” In practice, how we view the relationship between sexual intercourse and fatherhood is especially critical for gay men who seek to conceive without sexual intercourse, and who must also contend with profound societal stigma as potential parents. By creating obstacles to fatherhood for men who conceive without sexual intercourse, the law codifies the notion that the ideal father is always heterosexual. This paper will explore the evolution of marital legitimacy law toward a focus on sexual intercourse, and argue that the law elevates “virgin mothers,” or women who conceive through ART, while minimizing “virgin fathers.” This paper will also argue that this discrepancy reflects stigma against gay men as fathers and finally that the law should adopt a gender-neutral and plural “virgin parent” approach to presumptions of parentage in ART.
- assisted reproductive technology,
- sexual intercourse,
Available at: http://works.bepress.com/elizabeth_levy/1/