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Antiabortion civil remedy laws in effect in five states grant putative fathers the right to sue abortion providers for wrongful death regardless of their relationship to the gestating parent. While these laws represent an important new development in the movement to restrict the abortion right, they also expand parental recognition of unwed fathers. Constitutional law requires that unwed fathers who seek to assert parental rights must establish that they possess both biological connection and a relationship with their child or the gestating parent—what has come to be known as “biology-plus.” However, antiabortion civil remedy laws vest parental recognition and rights in putative unwed fathers without the necessity of meeting the constitutionally required biology-plus–relationship standard. In so doing, these laws recognize legal parentage for unwed fathers by legislative fiat in a way that is inconsistent with constitutional law norms. This Article argues that civil remedy laws reflect a turn towards genetic essentialism because they replace the current biology-plus standard with biology alone as the defining marker of parentage. The laws do more work than merely establishing fetal personhood; rather, they represent a turn towards patriarchy through the genetic entitlement of fatherhood.

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Washington University Law Review