Parentage Law—The Basics

Legal parents, as I have already suggested, are not necessarily biological parents. Historically, marriage has provided the institutional filter through which parental designations were realized. In the English common law tradition, in the Napoleonic Code, and in Sharia law, a husband is the father to any children of his marriage (pater est quem nuptia demonstrant—father is to whom marriage points).^{Footnote 6} Given the inability to determine paternity with certainty, the formal status of marriage and husband served as a proxy for biological proof of paternity. The law has historically been less concerned with defining mothers since birth itself was seen to do this work. Thus, while men needed the law to bring them into a paternal relationship with children, women became mothers naturally.

The interaction between law and biology in the context of marriage also ensured the legal status of children, a status that, particularly for boys, included the right to inherit, to pass on the family name, and to acquire and pass on one’s citizenship.^{Footnote 7} In the absence of marriage, children were deemed filius nullius (child of no one), a telling designation through which the biological fact of a child’s existence was subject to legal erasure.

In the contemporary period, myriad family forms and a robust market in reproductive technologies offer the prospect for parental status to be even more readily acquired through social, rather than biological, ties. On the other hand, our current context also offers the promise of biological certainty, most notoriously through paternity testing. In Canadian family law, however, the presumption (rather than the certainty) of biological relatedness of parents and children has been retained, and perhaps even intensified. Note, for example, the language defining parentage in the Family Law Acts of Alberta and British Columbia. In both provinces, the rules of parentage declare that a child’s parents are his or her birth mother and biological father, with exceptions carved out for cases of adoption or when conception was achieved with the assistance of reproductive technologies.^{Footnote 8} That sounds fairly clear and definitive, and it suggests a departure from the long-established principle that “marriage turns husbands into fathers.” We seem to have arrived at a point at which sperm creates fathers, at least if conception happens in “the natural way.” And yet in both jurisdictions, it takes another several qualifying paragraphs to establish who the presumptive “biological” father of a child is in the law. In brief, the law presumes that a man is a biological father if he is or was married or cohabiting with the mother in close temporality to the child’s conception or birth. That is, sperm plus relationship - sex plus commitment - makes a presumptive father. In this, the law performs what Jacqueline Stevens has described as a “telling semantic mistake.”^{Footnote 9} In the insistence that fathers are biologically related to their children, even when provincial family law statutes do not, in fact, insist on establishing proof of biological relationship and go to great lengths to establish elaborate criteria for paternal presumption, the legal fiction of fatherhood as biological relatedness is enforced. Legal fathers thus acquire recognition as biological fathers even when biological relatedness is not established.^{Footnote 10}

The ambivalent relationship between law and biology in parentage can also be witnessed in the struggles for parental recognition faced by same-sex partners. Equal marriage (and equal legal standing for different and same-sex cohabiting relationships) has not included equality in the realm of parentage law.^{Footnote 11} In part, the constitutional division of powers in Canada, in which marriage is a federal jurisdiction, while the provinces regulate all other domestic relationships, explains this lapse. But the transformation of the paternal presumption into a parental presumption has also faced arguments about the impossibility of overcoming “the biological facts.” Vital statistics offices in British Columbia and Ontario, for example, initially refused to allow lesbian co-mothers to register themselves as parents on their children’s birth certificates.^{Footnote 12} Provincial officials argued that birth registration was designed to record biological relationship. When challenged to provide evidence that heterosexual parents had to provide proof of biological relationship when registering their children’s births, neither Ontario nor British Columbia could do so, and the women ultimately succeeded in being named parents. Saskatchewan has been less willing to acknowledge the legal fiction that establishes parentage law, insisting that the refusal to grant parental rights to a lesbian co-mother was not a violation of her equality rights, but simply a recognition of the biological facts. As a woman, she could not have provided “the seed,” and the court could not “aspire to affect the fundamentals of biology that underlie the presumption purely in the interests of equal treatment before the law.”^{Footnote 13} The Saskatchewan court did note that parentage was about more than biology, but in the judge’s reasoning, it seemed that the possibility, if not the reality, of biological relationship, was essential to establish a presumption of parentage.^{Footnote 14} To be clear, same-sex partners can acquire parental status through adoption in all Canadian provinces and territories. Adoption provides an obvious legal override of previous parental relationships as well as the legal fictions that attend them. But the point I want to make regarding the presumption of parentage is that the presumption, in itself, is a legal provision that masquerades as enabling a biological fact. In fact, paternal presumptions are biological fictions that enable legal truths.

If the relationship between biology and parentage is tenuous even in the context of heterosexual marriage, it is hardly surprising that naming parents becomes more complex with the advent of reproductive technologies. Sperm and egg donors, intentional parents, and gestational mothers, might all vie for parental designations. And because paternal presumptions are also in play, the spouses or common law partners of the various contributors might also be prospective legal parents. In a situation in which two intentional parents contract with a surrogate mother who gestates an embryo created from donated sperm and ova, seven people might claim to be the resulting child’s parents.^{Footnote 15}

In this complicated scenario, it is telling that different jurisdictions have approached the determination of parentage differently. In Canada, for example, where surrogacy contracts are considered unenforceable, gestational mothers have the first claim on motherhood.^{Footnote 16} In Alberta, the Family Law Act allows for a court declaration through which the surrogate mother can revoke her status to the genetic mother or the wife/partner of the man who provided the sperm and intended to be the father.^{Footnote 17} The Act is very clear that the husband/partner of the surrogate is not the father.^{Footnote 18} In the absence of this clause, the surrogate’s husband/partner would be the presumptive father of the child. But more importantly, for our purposes, the inclusion of this clause is significant because it demonstrates that in the first instance, paternity is matrimonial not biological. In a number of US jurisdictions, by contrast, the intentional parents—that is, the people who put the process in motion—are considered parents and the surrogacy contract is considered enforceable.^{Footnote 19} There are, of course, important arguments to be made surrounding the conceptualization of gestation as a form of labour akin to other forms of manual work, as well as the social conditions that might lead women to regard this “service” as a viable form of wage-earning.^{Footnote 20} For the purposes of this discussion, however, I will only note those important issues.

The increasing use of reproductive technologies both reveals the opportunities to delink biology and parentage, and, paradoxically, seems to reinforce the pre-eminence of biological relationship as central to the parent-child relationship. First, we might observe that despite all of the potential parents who can emerge from the reproductive technologies scenario, the law has refused (with the notable exception of British Columbia’s Family Law Act—discussed below—and one Ontario case—AA v BB) to grant parental status to more than two parents.^{Footnote 21} Thus, the appearance of biological relationship is maintained. Second, people often pursue assisted conception options as a way of acquiring a biologically related child when natural methods have failed. Reproductive technologies thus facilitate a preference for biologically-related progeny over adoptive children, particularly for people of relative affluence. Third, the broader context of genetic knowledge, the human genome project, and the promises made on behalf of genetic science for foretelling all that might be known about humanity, our individual selves, and our futures, has fuelled a hype that, in the public and policy-making imaginations at any rate, discounts social relationships in favor of scientific “facts.” Geneticists tend to be more moderate about what genes can reliably predict than the claims made on their behalf, but in an environment of competitive research funding, it can be disadvantageous to downplay the hoped-for impacts of one’s work.^{Footnote 22} Fourth, this preference for and assumption of biological relationship informs the context in which the children of reproductive technologies come of age. It is hardly surprising that they too would express a strong interest in the genetic truths of their lives by, for example, seeking out the anonymous sperm donors who made their lives possible.

British Columbia’s provisions for the recognition of three parents and its explicit articulation that a donor is not automatically a parent offer compelling correctives to the intensification of biological relatedness in parentage determination. Section 30 of British Columbia’s Family Law Act provides for a declaration of three parents when an agreement is reached among the intended parents and the potential birth mother, or the potential birth mother, her partner and a potential donor, prior to a child being conceived through assisted reproduction.^{Footnote 23} The three-parent provision thus allows for both the biological and social parents to be recognized equally in the law and disrupts the biological—and therefore heternormative—foundations of other provinces’ parentage provisions as well as the Ontario court’s decision in AA v BB.^{Footnote 24} Further, the explicit recognition that a donor is not a parent solely by virtue of biological contribution—that, at least in the context of assisted reproduction, parentage requires some form of intentionality and relationship—provides an opportunity for broadening the conversation regarding the meaning and requirements of parentage. As we shall see, however, in the context of citizenship determination, biological relationship claims preeminence.

Borders and Parentage

Parentage determination within a single legal jurisdiction is, in itself, a complicated undertaking, but setting this task within the context of international borders, birth “abroad,” and citizenship determination, risks cognitive-system overload. If we begin by considering the pre-reproductive technology situation, we see that the wobbly relationship between biology and parentage in the domestic context spilled over into the determination of citizenship for children born abroad to a citizen parent (derivative citizenship). These rules have changed over time, and thus one’s birth date is definitive of which rules apply. For example, in Canada, between January 1, 1947 and February 15, 1977, children born abroad to married parents inherited the citizenship of their fathers. If the parents were unmarried, the child received her citizenship from her mother. This logic repeats the certainty of maternity and the formality of marriage in bringing men into legal relationship with their children. Moreover, it ensured that the recreational activities of Canadian soldiers participating in foreign wars and peacekeeping missions did not create unwanted claims of citizenship by any resulting children.^{Footnote 25} These marital status provisions have now been abandoned in Canadian law, first in 2009, with the removal of wedlock conditions for people born between 1947 and 1977, and then in the spring of 2014, with the abandonment of marital status provisions for people born abroad prior to 1947—notably the “illegitimate” children of Canada’s World War II veterans.^{Footnote 26}

Even before the advent of reproductive technologies, immigration and consular officials could be quite wary of the citizenship claims of born-abroad children. Court documents indicate that in determining the legitimacy of these citizenship claims, officials have demanded evidence ranging from affidavits from people who witnessed the birth of the child, to photographs of the pregnant mother and testimony from the parents about the time and circumstances of the conception.^{Footnote 27} Tellingly, however, demands for DNA proof of parentage are not regarded as mandatory in the first instance, as indeed, they have not been required in the domestic context.^{Footnote 28} As more Canadians seek out foreign reproductive services, however, immigration and consular officials have received guidance that genetic relationship should be the sole means for acquiring “derivative” citizenship for children born abroad with the assistance of reproductive technologies. Citizenship and Immigration Canada’s Operational Bulletin 381 explicitly states:

Intriguingly, this categorical statement is preceded by a description of the current status of Canadian parentage law, which notes that “the determination of whether a person is a ‘parent’ is not merely dependent on a genetic link between the biological parent and the child, but also based on evidence of intention to parent and demonstration of parentage as displayed by the existence of a legal parent/child relationship.”^{Footnote 30} At least in the context of this operational bulletin, parentage is understood as “biology plus.” This assertion is intriguing because of what it demonstrates about the effects of citizenship on parentage. First, “biology plus” is not, in fact, an accurate rendering of Canadian parentage laws and Vital Statistics recordings of parental relationships, which, as we have already seen, are considerably more circumspect about the necessity of a biological relationship. In fact, people can be deemed parents without a genetic link to a child (e.g., a married heterosexual couple who used donated gametes, with the wife as the gestational mother). Sometimes parentage is only about the “plus.” Furthermore, as noted above, gestational mothers, regardless of whether they are biologically related to the child they bear, have first call on motherhood, even when they have initially expressed an intention NOT to parent, by participating in a pre-conception agreement to relinquish the child and their parental status. And of course, in the Canadian domestic context, children derive their citizenship from birth in the territory. In the absence of Canadian soil, and in the transnational operation of Canadian sovereignty, basic principles of domestic family law are disregarded, and it is the genetic relationship (or the visual appearance of genetic relationship) that matters. Again, even if the gestational mother is Canadian, if the child is born abroad and is genetically unrelated to his intentional parents, he is, at least according to the Operational Bulletin, unable to acquire Canadian citizenship from his mother. Ironically, in the quest for certain determinations of legitimate citizenship claims, committed parents are cast by the wayside, and it is only Canadian flag-waving sperm that is required to make members of the Canadian polity.^{Footnote 31}

This biological essentialism in the determination of parentage has recently been upheld in a Federal Court of Appeal ruling in Canada (Citizenship and Immigration) v Kandola (2014).^{Footnote 32} The case involves a child born in India to her gestational Indian mother and her Canadian father, whom the court refers to as her guardian. The father sought Canadian citizenship for his child, but his application was rejected on the grounds that he was not genetically related to his daughter. The ruling was then appealed to the Federal Court, where the father prevailed, and subsequently to the Federal Court of Appeal, where he lost. In fact, the child is not genetically related to either of her parents, but her mother gave birth to her and her parents are married. In Indian law then (as in the law of every Canadian province and territory), the child was born in the context of a marriage, her gestational mother is regarded as her “natural” mother, and her father is the husband of her mother. The parents were forthright with Canadian officials about the circumstances of their child’s birth, and the consular official followed the explicit instructions of the operational bulletin, finding that the child was not a Canadian because she was not genetically related to her Canadian parent.^{Footnote 33} The family received advice to consider adoption, an option that was not, in fact, open to them since the adults were already legally recognized as the child’s parents in India. One cannot adopt one’s own child. Alternatively, officials suggested applying for a temporary resident permit in order to gain access to Canada and then seek a permanent resident permit on humanitarian and compassionate grounds or a discretionary grant of citizenship.^{Footnote 34}

In Federal Court, Blanchard J. rejected the Ministry of Citizenship and Immigration’s (CIC) narrow reading of the definitions of child and parent. Although he too repeated the fiction of biological relationship that attends jus sanguinis definitions of citizenship, and thus determined that the child could not make her claim on that basis, he felt that the child’s right of citizenship was, in fact, conferred by the Citizenship Act because her birth was legitimated. In his reasons, Blanchard J. cited section 2 of the Act, which provides that, for its purposes, the definition of child “includes a child adopted or legitimized in accordance with the law of the place where the adoption or legitimating took place.”^{Footnote 35} And further, section 3 (1)(b) of the Citizenship Act declares that a person is a citizen if the person was born outside of Canada after February 14, 1977 and at the time of his birth one of his parents was a citizen.^{Footnote 36} Justice Blanchard’s reasoning thus returns us to the role of law rather than biology in defining parentage. Ironically, by drawing attention to the provisions surrounding legitimation in establishing definitions of parent and child—a concept that is regarded as archaic in Canada’s domestic parentage law—the court was able to reinvigorate a social definition of familial relationships.

This judgment was subsequently appealed and overturned, in a split decision, at the Federal Court of Appeal. Concerning the issue of legitimation, Noël J.A., writing on behalf of his colleague Webb J.A., held that the term “legitimized” required a prior state of illegitimacy in order to acquire meaning. Because the child was born to married parents, this prior state did not exist.^{Footnote 37} Turning, then, to the definition of “child,” the Court held that the French wording of the act should apply. The English word “parent,” in Noël J.A.’s assessment, carried a latent ambiguity.^{Footnote 38} The French phrases “née d’un père” or “née d’une mere” were preferable, since in his view (and that of CIC), the words “née d’un père” could mean only that the father contributed to the child’s genes.^{Footnote 39} Of course, prior to the advent of genetic testing, when a birth in the context of marriage turned husbands into fathers, “née d’un père” would, indeed, have meant something other than genetic contribution, an argument that was elaborated by Mainville J.A. in dissent.^{Footnote 40}

The terrain got a bit rougher when considering the meaning of “née d’une mere” (although this was not an issue in the case, since the child’s mother was not Canadian). Since both genetic and gestational mothers could claim to have begotten a child, the French text was less instructive. And worryingly, Noël J.A. noted in obiter, in a context of assisted reproduction, neither the genetic nor the gestational mother may confer derivative citizenship if, as the federal government insisted, a “parent” is restricted “to a person who has begotten (father) or borne (mother) a child and who is genetically related to the child.”^{Footnote 41} While the parties did not raise a Charter issue in their arguments before the court, Noël J.A. noted that there may well be a section 15 (equality) argument here, in the unequal treatment of children of Canadian citizens, depending on the manner of their conception.^{Footnote 42} Presumably, there would also be a gender equality argument regarding the unequal capacity of men and women to convey citizenship to their children in the context of reproductive technologies and birth abroad. Indeed, the implication of the federal government’s argument would seem to be that Canadian women who use certain forms of reproductive technologies and have, or hire a surrogate to have, a child abroad, may lack the ability to pass on their citizenship altogether.

While the federal government found a sympathetic ear in the Federal Court of Appeal for its arguments regarding the narrow genetic definition of fatherhood in the citizenship determination of children born abroad, they were rather less successful in their efforts to insist that the law required “biology plus.” In Noël J.A.’s view, the Operational Bulletin had no legal foundation, leaving him to conclude that paragraph 3(1)(b) of the Citizenship Act only provided for the acquisition of derivative citizenship by a child with a genetic relationship to a Canadian.^{Footnote 43} Justice Noël regarded the automatic grant of derivative citizenship—of jus sanguinis—as exactly parallel to the operation of jus soli. Thus, a child born abroad with an X or Y chromosome from a Canadian is a Canadian, full stop, just as a child born on Canadian territory is a Canadian, full stop. His reasoning ran as follows:

This is an extraordinary claim. There is, after all, no gene for Canadianness. One is a Canadian by virtue of the criteria of birth articulated through the law. Paragraph 3(1)(b) describes the acquisition of derivative citizenship as a function of the citizenship of one’s parent; and parentage, as this discussion has been at pains to point out, is fundamentally the purview of family law considerations.

In any event, as Noël J.A. noted, this rigid adherence to genetic relationship in the interpretation of the Citizenship Act’s definition of “parent”—to the “begetting”—in the context of men, means that “a Canadian donor conveys that right like any other Canadian procreator.”^{Footnote 45} (This finding, one might note, is directly at odds with several provincial parentage statutes that state, explicitly, that a donor “cannot be declared a parent by virtue of the donation, even though there is a genetic link between the child and the donor.”^{Footnote 46}) Thus, the Federal Court of Appeal offers the federal government a cautionary warning—Canadian sperm does wave a flag, and, in the citizenship context, genetics is proof enough to establish fatherhood and Canadian nationality. And while the federal government had an opportunity to address this issue in timely fashion, given that revisions to the Citizenship Act were before Parliament at the time of the judgment, they chose not to do so.^{Footnote 47}

What are the implications of insisting on genetic relationship as the basis of national belonging? In the first instance, it tells us that genetic relationship to a Canadian parent gives you Canadian blood. And the implication of shared blood is a nation of people who are “of the same stock”; people whose blood ties them together with the common fate of the political society. This language of blood invokes a racial logic at the heart of birthright citizenship.^{Footnote 48} It is a discourse of national purity, or at least coherency, that echoes other familiar and diabolical instances of insisting on blood as the basis of belonging. Of course, an insistence on genetic relationship to a Canadian as the basis of derivative citizenship does not create an ethnically or racially homogenous population (whatever that would be), but the insistence on genetic relationship as a claim to national membership does signal a certain cleaving to identity that can, at least according to Canadian officials, be known in the blood. When citizenship and family law collide, the Federal Court of Appeal tells us, there is a simple, and highly illiberal, test for belonging. It’s in your veins.

Consequences for Children

The contestation over how to define parentage in the context of derivative citizenship and reproductive technologies also raises the prospect of children being deemed filius nullius and/or stateless. In several well-documented cases involving a range of countries, children have been born to intentional parents but rendered, at least temporarily, stateless and potentially parentless, because the parents’ country of citizenship refuses to acknowledge children born of surrogacy arrangements (Australia, France, Germany, Italy, the Netherlands, Norway, Sweden); the country of citizenship of the surrogate mother will not grant citizenship to a child born of a surrogacy arrangement unless the surrogate is willing to acknowledge the child (India, Ukraine); the country of birth does not grant jus soli citizenship; or due to some other conflation of parental citizenship and national conflicts around parentage laws.^{Footnote 49} Countries may be willing to issue special grants of citizenship to these children, but evidently, that prospect is dependent on the rationale advanced by a state for refusing derivative citizenship in the first place. In countries such as France and Germany, for instance, where surrogacy is outlawed, the refusal to grant citizenship to these children is motivated by a desire to convey moral opprobrium and dissuade prospective ART users from contracting surrogacy services abroad.^{Footnote 50} Yet as many commentators have observed, the consequences of such laws most keenly affect the children, and thus children are being punished for their parents’ refusal to accept prohibitions on their reproductive choices.^{Footnote 51}

Of course, there are compelling reasons for national governments to be concerned about the consequences of the growing international fertility market. Countries that are signatories to the UN Convention on the Rights of the Child have assumed international obligations to protect children from abduction, sale, or trafficking.^{Footnote 52} Given the demand for reproductive services and significant numbers of poor women in both developed and developing countries, it is not surprising that keen-eyed entrepreneurs would see a lucrative opportunity to establish “baby factories.” For example, in one high-profile case recounted by Seema Mohapatra, two American attorneys, well respected for their work in reproductive law, established a fake, multinational surrogacy business. Exploiting the legal opportunities created by Ukraine and California law, the entrepreneurs recruited American and Canadian women and sent them to Ukraine, a country known for its high-quality reproductive health services and its lax regulations around proof of surrogacy arrangements, where they were impregnated with Ukrainian gametes.^{Footnote 53} The prospective babies, who were deemed especially desirable because they were “Caucasian,” were advertised to potential adoptive parents as infants with high expenses due to surrogacy arrangements that had collapsed.^{Footnote 54} The babies were then born in California, a jurisdiction that allows intentional, biologically-unrelated parents to be registered immediately on the child’s birth certificate without having to undertake a legal adoption proceeding.^{Footnote 55} As Mohapatra explains, the slipperiness in this arrangement around adoption and surrogacy was necessary in order for its masterminds to be able to charge for and profit handsomely from the arrangement. Under California law, it is legal to pay a surrogate as long as the agreement is established in advance of the pregnancy. If a pregnant woman decides to give a child up for adoption, it is illegal to pay her anything other than her medical expenses. This is because adopting a baby for a price after its conception is considered human trafficking.^{Footnote 56} By claiming that these children were the result of abandoned surrogacy contracts, the attorneys were able to charge surrogacy rates, despite the fact that the children emerged from a purely profit-driven, speculative baby-making venture.

As this elaborate example demonstrates, the ready availability of documentation certifying parentage for a genetically unrelated child conceived with the assistance of ARTs does raise concerns about the prospects for a flourishing traffic in children. Additionally, national governments are justifiably concerned that their citizens have access to high standards of medical care; that donors and surrogates have legal and employment protections or, at least, are aware of the risks they are assuming; and that any reproductive materials and procedures—and the children they might produce—are as safe and healthy as possible. Ensuring that there are clear international standards for establishing the legitimacy of any “parental project” and standards for medical care would seem to be a basic condition for the regulation of an international fertility market. To confront this brave new world with unequivocal refusals of surrogacy arrangements and narrow-minded insistences on genetic relationship is a head-in-the-sand response of demonstrable and shameful inadequacy.

Birth, Citizenship, and the State

In the early decades of the twenty-first century, we find ourselves in a social context in which the married, heterosexual nuclear family is on the wane as a lived experience, even if its normative force remains fully operative. And we are ensconced in a genetic revolution that seriously challenges the presumptions and fictions that have underpinned the biological relatedness of families. Of course, even when the power to constitute families was limited to husbands and wives, biological relationship was neither assured nor required. But in the midst of conditions in which states must sort out parental presumptions for families headed by same-sex partners, determine whether the child of a sole parent/caregiver must have two parents on a birth certificate, and apportion legal status among intentional, genetic, and gestational parents, one might think we could finally crack open the biological fiction of familial relatedness and begin to articulate new ways of ordering our intimate lives based on care and interdependency rather than blood. Moreover, given all of the parentage and citizenship complications arising from transnational fertility markets, so-called birth tourism, and anchor/passport babies, one might think that the prospect of delinking birth and citizenship would begin to appear on political agendas in ways other than simply denying jus soli citizenship to the children of non-citizens. Yet the conflation of national political membership with birth is both so taken-for-granted and so hidden, or perhaps, so insurmountable, that the prospect of devising alternatives does not even merit a mention.

How can we account for this perplexing silence? Part of the answer seems to reside in the powerful grip that the liberal consent-based model of political authority continues to exercise on our contemporary imaginations. The story of liberal democracy is the story of the separation of the state from the family, of the separation of the political from the familial.^{Footnote 57} Families matter in this context because of the financial and genetic inheritance they might possibly convey, but they appear to be effects of the state rather than the basis of the state itself. The mythology of liberal democracies—that there is a private sphere where the family resides, a sphere that is separate from the consent-based, rationality-infused domain of political decision-making—is well ingrained, but as we can see even from the evidence provided in this paper, the relationship between families and the state is more complicated.

While families may indeed be constituted by the state, the state is constituted by families. As Jacqueline Stevens observes, states need families, because the rules that delineate family are the rules that define political membership and provide citizens for the nation-state.^{Footnote 58}

In his recent work All in the Family: On Community and Incommensurability, Kennan Ferguson argues that the conceptions of sovereignty articulated in Western political theory, just as in contemporary electoral campaigns, rely on the organization of authority within the family as a fundamental metaphor for the operation of the state’s authority. Even as liberal (and other) thinkers articulate a vision of the family as a deeply private, even pre-political arrangement, families nonetheless form a touchstone for the right ordering of political society. As Ferguson explains:

Families (that is, patriarchal, heterosexual, monogamous families) offer a model for the operation of power and the naturalization of power differentials, but all in the service of care, concern, and a relatively shared project.^{Footnote 60} “Once a small-scale ideal commonality can be built (or at least bought into),” Ferguson argues, “the only obstacle to a perfectly functioning larger community is the question of scale.”^{Footnote 61}

Ferguson’s central observation is that the deployment of the familial metaphor as the basis for political authority presumes a) that families are harmonious places with a shared vision, and b) that a state, so ordered, similarly produces harmony. Ferguson wryly observes the oddity of this metaphorical association, since anyone who has actually lived in a family would be unlikely to name harmony as its prevailing characteristic.^{Footnote 62} In fact, it is the family’s fractious inner workings that lie at the heart of Ferguson’s analysis. For Ferguson, the question is what might happen to our conception of the state, or at least to our political theorizing about the state, if we took familial divisions, and modes of negotiating difference within the family, seriously. What if familial processes of mediating disputes, rather than a fantasy about the peace that results from acquiescence to the family patriarch, became the metaphor for state power?

Building from Ferguson’s interest in the internal machinations of the family as a metaphor for the state, I want to suggest that we might draw a useful familial-state metaphor in the decreasing salience of biology for family formation. Obviously, states continue to trade on the legal fiction of the family’s biological relatedness, but the reality is much less clear-cut. My question, or suggestion, then, is to shift our attention from the biological presumptions of the family’s foundation—a presumption that is weirdly anachronistic in an era of non-normative families and reproductive technologies—to the bonds of love and care and a more-or-less shared project of mutual support that provide a baseline for familial association. What if that metaphor of family formation became operative for our thinking about the state? And what if absolutely none of that mattered in terms of one’s capacity to be a member of a political society?

My aim in this paper has been to show how the interactions among the legal rules of parentage and citizenship track in and out of association with biological relatedness. Recent revisions to domestic family law statutes, guidance to consular officials, and court rulings evince a faith in biology, blood, and genetics as definitional criteria for parents and children, while they also define those relationships on the basis of committed relationships and intentionality. Legal definitions of the family can be used to include and exclude by naming the birth criteria required for citizenship; they can define relationships and sexual practices meriting legal status, articulate racist assumptions about “national character,” and assert value judgments about the morality of surrogacy. But most importantly, by noticing how the law makes families, we can begin to conceive of relationships as conventional rather than natural, to disentangle blood and other bodily fluids from deep commitment, and to re-conceptualize obligations of care beyond the bounds of blood and nation. As the political origins of the family and the familial basis of the state grow increasingly apparent, these revelations might just offer up the prospect of non-birth-based forms of political membership.