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NICOLE SHAWAN JUNIOR
PRESUMPTION OF
PATERNITY, BUT
NOT EQUALITY
IN LATE JUNE, a friend shot me a text: “Let me know if you want to
march with [me] on Pride here in NYC.” I grappled with the question,
the shame it brought to the fore. In my inbox was an email from my
attorney sent just days before: “Nicole—attached is the notice of the
argument en banc. It is scheduled for Harrisburg on August 9th.” At the
time of year when I and other queer folks parade pride in ourselves,
communities, and families, I was involved in another kind of spectacle.
One in which the Pennsylvania Superior Court would determine
whether the child my wife and I brought into this world is mine.
I SPENT A DECADE prosecuting intimate partner violence and po-
lice. While in law school, I learned that, in our courts, presumptions are
tools judges use consistently to decide tough legal questions. ere are
legal presumptions we widely accept: a criminal defendant is presumed
innocent until proven guilty; a missing person who has not been heard
from for seven years is presumed dead; a child born of a married couple
is presumed to be the husband’s, regardless of biological relation. In the
context of family law, this is the most signicant legal presumption
there is.
is presumption, though, only applies to cis-men. It does not apply
to cis-women wives who, though not biologically or gestationally related
to a child, have taken on the full breadth of nancial responsibilities,
emotional devotion, and medical actions necessary to bring that child
into the world. I learned this unfair truth not as a lawyer or law student
but as a litigant.
In the early months of our marriage, my wife (“NJG” for our pur-
pose here) and I began taking armative steps to grow our family. We
spoke with our friends who started their own families through Alterna-
tive Reproductive Technologies (ART) such as articial insemination,
surrogacy, and in vitro fertilization (IVF). Both former lawyers, we read
recommendations made by local and national LGBTQIA+ organiza-
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tions about best practices to ensure my standing as a non-biological
and non-gestational parent would be legally recognized. rough our
research, we learned we should use an unknown sperm donor and, later,
work with a family lawyer to begin a second-parent adoption while our
child was still in utero. e second-parent adoption would ensure that
my parentage would be recognized in all U.S. states, even Texas, my
wife’s childhood home.
We identied a donor through a cryobank. His childhood photo
revealed he and I share a similar complexion, much darker than NJG.
We both have high cheekbones and a toothy smile. According to his
online prole, we even have the same zodiac sign, writing obsession,
and place of ancestry. After friends warned us about the paucity of Black
donors, NJG and I celebrated our catch, his proximity to my likeness.
Because of him, we exalted, we’d see me in our child. We bought his
sperm and hired an attorney who specialized in LGBTQIA+ second-
parent adoptions. We contracted with an IVF treatment facility my best
friend recommended. We both were probed with needles and tested for
disease, even though my genetic material would not be used. After just
one IVF round, we got pregnant. I followed our doctor’s instructions
for when and how to inject NJG with progesterone helping diminish
our chances of miscarriage, which are higher in IVF pregnancies than
traditional ones. For months, I inserted needles as long as a nger into
NJG’s abdomen and buttocks daily. Sometimes twice a day.
NJG and I threw ourselves into our family’s expansion. We attended
birth and parenting workshops together. We held doll babies both Black
and white, learning the proper techniques for providing skin-to-skin
contact, supporting the head, and bottle feeding. After three months,
when we felt more condent that miscarriage would not befall us, we
were delighted to share the news of our pregnancy: “We’re expecting
our son, Mikhail Moon J-G,” a hyphen to represent who he truly is—
ours. When reading to our son while he was still in NJG’s belly, I called
him Mr. Moon. My mom, whom NJG had taken to calling Glam-Ma
since nding out we were pregnant, called him Moonchild. NJG’s best
friend nicknamed him “M&M.”
THINGS CHANGED.
e communication between NJG and I became contentious, then
nonexistent, and our relationship suered. I moved out of our marital
bedroom and into our basement in-law suite. We spoke candidly about
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Nicole Shawan Junior
divorce and the possibility of co-parenting over the meals we still shared;
remote workers during the pandemic, even after I moved out of our bed-
room, we ate lunch and dinner together daily. NJG and I had spent over a
year in therapy early on in our relationship, before our marriage. Because
of that experience, we decided to hire a therapist to help us with the next
steps. “If we decide to divorce, we’d also like . . . to develop, execute, and
maintain a healthy co-parenting plan,” NJG emailed a potential therapist.
I emailed another therapist the same. Nothing changed; communication
only worsened. Two months after our emails to therapists and one ther-
apy session later, against NJG’s wishes, I made a decision: I was moving
out of our home, altogether.
After we talked about it, I sent a message to capture all we discussed:
“I’ll continue to live in Philadelphia and I’ll be fully available to co-
parent Mikhail. I’ll be available for round-the-clock support for you
. . . But I will reside in a separate location close to you and Mikhail
in Philadelphia. I believe this is the best course of action for us to co-
parent and support Mikhail’s personal, spiritual, intellectual, and emo-
tional development.” NJG replied, “I’m on board.” She was, and wasn’t.
She led for divorce, as we had discussed. However, instead of follow-
ing our co-parenting plan, she removed all of our obstetrician appoint-
ments and pediatrician interviews from my Google calendar. Worst of
all, she claimed our son was no longer mine. “You’re right!” my attorney
deadpanned. “I just spoke to her lawyer. She’s trying to cut you out of
Mikhail’s life. Here are your options . . .”
According to family law expert Helen Casale, “ere really isn’t any-
thing more these parties could have done to try to secure the non-biolog-
ical partner’s rights.” Nonetheless, it’s now been more than a year since
our son was born and my battle for legal parentage began. After NJG cut
me out of our child’s life, a Pennsylvania family court trial judge found I
was our son’s parent not based on the presumption of parentage but on
contract law; because I am a cis-woman, the court didn’t presume my
parentage. Indeed, my case is one of rst impression here in this com-
monwealth. In response, NJG appealed, which led a majority on a three-
judge panel of the Pennsylvania Superior Court to overturn the trial
court’s decision, eectively declaring our child was not mine.
MY CASE, UNFORTUNATELY, is not unique.
With queer women’s rising reliance on ART, cases like mine are hap-
pening more and more. In Oklahoma, Kris Williams and Rebekah Wilson
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—two married women—used a sperm donor to have a child. When
the marriage dissolved, the non-biological mom asked the legal system
to protect her rights as a parent. e court declined. ough she was a
part of the child’s conception, birth, and early life, the court found she
had no parenting rights but ruled the sperm donor did. In Idaho, less
than a year after their child’s birth, Linsay Lorine Wallace and Kylee
Diane Gatsby—a married lesbian couple—had a violent altercation
that resulted in a divorce. e non-biological mom led for parentage
rights with the court. e trial court ruled that while the non-biological
mother had a presumption of being the child’s parent based on the
couple’s marriage, the presumption was overcome because she was not
the child’s biological parent.
Sure, the Idaho court did use the presumption of paternity, but its
analysis did not stop there. It should have. Clearly, in cases where same-
sex couples reproduce, at least one of the partners is not biologically
connected to the child. But being a non-biological parent extends be-
yond queer women like me: a nonbiological and nongestational married
mom. ere are also queer married moms who only have a gestational
connection to the children of their marriage but no biological connec-
tion. ere are also married men who, without viable sperm of their
own, utilize donor sperm to impregnate their wives. Like me, those men
also have no biological or gestational ties to their children. Unlike me,
though, they do have the presumption of paternity’s protection. Simply
because they are men. e law and its presumptions must account for
this modern inequality.
As it stands, after a successful appeal led by my attorneys, the Supe-
rior Court withdrew the three-judge panel decision and granted us
re argument. On August 9, I traveled from my Philadelphia apartment
to Pennsylvania’s Capitol building in Harrisburg. Inside the courtroom
and beneath opulent twentieth-century artistry, nine black-robed judges
heard my case. Addressing the contract law theory, one judge asked
NJG’s lawyer why I shouldn’t have the benet of an enforceable contract,
especially considering I paid half of all IVF-related costs (including the
procedures and medication), half of the sperm donation and storage fees,
half of our birth doula’s fees, and half of the second-parent adoption
attorney’s fees. She’s like a co-signer. She doesn’t get the benet of the gift just
because she may have put some money down, NJG’s attorney replied. My
mom’s hands breached the air, her mouth opened just short of a wail. I
cradled my mother’s arm, reminding her, no matter what, to keep her
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Nicole Shawan Junior
composure in that room of strangers deciding me and Mikhail’s fate.
Are you asking us to treat same-sex couples dierently from heterosexual
couples? another judge asked. I’m asking you to follow the law which does
not recognize the non-biological mom as a parent, NJG’s lawyer ripped.
Why doesn’t the presumption of parentage apply here? Forget about pa-
ternity, we are in modern times. Why shouldn’t we apply that presumption
to this case? My stepfather’s chin dipped towards his chest over and over.
e question gave me hope, too. Maybe Pennsylvania will apply the
presumption to me after all, I thought. NJG’s lawyer responded, at’s
something only the legislature can do. at’s beyond your judicial power.
MY CASE—my wife’s refusal to let me care for our child, her removal
of Mikhail from me and my side of his family, the positioning of the
courts, the lack of a presumption of parentage—has always been about
power. e power of vengeance. e power over who can have children.
e power over how. e power to bring a claim to court. e power
to have legal status. Men’s power over women. e power of a biologi-
cal mother over a nonbiological mother. e power to walk away from
marriage, from my seven-months-pregnant wife, who I love, though our
communication had made it such that I was no longer in love with her.
No, I do not have clean hands. If walking away from a marriage
while a wife is pregnant were a parental disqualier for similarly situated
cis-men, it would be a travesty. But equality, at least, would be main-
tained. at is, though, not the status quo. Married cis-male fathers
who abandon their wives—even those who have no intention of caring
for the children they created—have a presumption of paternity that
family courts across our country concretize every day. Child support
departments and law enforcement oces in every jurisdiction on this
land ensure this presumption is adhered to.
I AM A MOTHER.
A mother who has not seen my son. Not even a picture. Mr. Moon,
are you walking now? When did your rst tooth come in? I speak to him,
aloud, though I don’t know where he is. Philadelphia? Houston?
When did you crawl for the rst time, my Moon? Are you walking? How
steady is your gait? I try to imagine how he looks but can’t see past the
black and white static of the last ultrasound photo.
What was your rst word? How big are you, my son? I have a cabinet full
of Pampers and a closet full of clothes that, by now, are far too small. Mr.
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Moon, do you still know my voice? Remember me, Moonchild. Remember.
IT’S BEEN OVER a month since the Superior Court heard my case en
banc. Of course it hasn’t yet issued a decision. Being a prosecutor taught
me that these things take a while. Still, I grieve. I miss my Moon. I send
NJG text messages from time to time: Moon’s rst birthday, Christmas,
Mother’s Day, random days. Just this morning I typed, “Sending love
to you and [Mr. Moon]. I dreamt of him the other night. Hope you’re
both joyful.” Star emojis ended this particular message, though a black
hole still sits in my belly, as well as in the crib, high-chair, stroller, and
car seat I bought almost two years ago. ere is never a response. Never.
I recently perused a local clothing store’s baby rack. Held in my n-
gers a rainbow-hearted onesie on sale for Pride. Its tag read “organic,”
reminding me of the contemporary truth: there is more than one way
to become a mother, to bear a child. Many queer (and straight) families
are created through the use of ART. Calling me a mother based on con-
tract law—while I’ll certainly accept that decision—is not enough. We
must rid our laws of antiquated, gendered presumptions that knife out
those of us who are married but not privileged with penises. We must
presume that, like cis-men, nonbiological queer mothers are parents of
children born to our (dysfunctional) marriages, too.
at would, after all, be marriage equality.