This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.
The LGBT community may soon win a legal victory that has been decades in the making: passage of the Employment Non-Discrimination Act (ENDA). As passage of the bill becomes more likely, debates about how much to compromise for that victory have become increasingly important. The current version of ENDA represents a series of compromises that should now be reconsidered.