specially concurring.
I agree with the majority’s interpretation of the relevant statutes in this case, and I also agree that, by following those statutes, we must declare that the child’s action is barred by the five-year limitation found in Wyo. Stat. § 14 — 2—104(a)(ii) (1994). I believe, however, that, if the appellants had properly challenged the constitutionality of the five-year limitation, we would have been compelled to declare that the statute violates the equal protection guarantees of the Wyoming and United States constitutions and is, thus, unconstitutional because it improperly discriminates between children with presumed fathers and children without presumed fathers. Wyo. Const, art. 1, § 2; U.S. Const. amend. XIV. Although Appellant State of Washington discussed its equal protection concerns in the lower court and devoted more than two pages in its appellate brief to an equal protection analysis, it did not directly contest the constitutionality of the provision. As a consequence, the constitutionality issue is not properly before this Court. See Billis v. State, 800 P.2d 401, 407-08 (Wyo. 1990); Munson v. State, 770 P.2d 1093, 1098 (Wyo.1989). But see Bredthauer v. TSP, 864 P.2d 442 (Wyo.1993).
In Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988), the United States Supreme Court applied an intermediate level of scrutiny to determine whether a paternity statute which treated illegitimate children differently than it treated legitimate children violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 486 U.S. at 461-62, 108 S.Ct. at 1914-15; see also A v. X, Y, and Z, 641 P.2d 1222 (Wyo.), cert. denied 459 U.S. 1021, 103 S.Ct. 388, 74 L.Ed.2d 518 (1982). The Supreme Court determined that a Pennsylvania statute which required an illegitimate child to bring a paternity and support action within six years after the child’s birth but did not similarly restrict a legitimate child’s right to bring a support action was not substantially related to an important governmental objective. Clark, 486 U.S. at 462-65, 108 S.Ct. at 1914-16.
The Supreme Court noted that the six-year period did “not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child.” Clark, 486 U.S. at 463,108 S.Ct. at 1915. The Supreme Court recognized that the mother may not be willing or able to present the child’s claim because of her relationship with the natural father or because of the emotional and financial strain of having an illegitimate child. 486 U.S. at 463-64, 108 S.Ct. at 1915-16. The Supreme Court explained that the six-year limitation was not substantially related to Pennsylvania’s stated governmental interest in preventing stale and fraudulent claims from being presented because, in other circumstances, Pennsylvania law allowed litigants to bring paternity and support claims later than six years after the child’s birth. 486 U.S. at 464, 108 S.Ct. at 1915-16. The decision further discounted the problem of stale and fraudulent claims being initiated by stating that, with the increased sophistication of genetic testing, the problem was less prevalent. 486 U.S. at 465, 108 S.Ct. at 1916.
The Montana Supreme Court relied on the Clark decision to decide a ease which was remarkably similar to the case at bar. State of Arizona v. Sasse, 245 Mont. 340, 801 P.2d 598, 601 (1990). In Sasse, the mother was married when she had intercourse with a man who was not her husband. 801 P.2d at 599. She became pregnant and gave birth to a child, and the mother’s husband was presumed to be the child’s father. Id. When the child was twelve years old, a paternity *764action was commenced on behalf of the mother and the child against the man with whom the mother had extramarital intercourse. Id.
Montana had a statute which provided that a child with a presumed father had to bring an action within five years after the child’s birth to declare the nonexistence of the father-child relationship. Sasse, 801 P.2d at 599. Montana also had a statute which allowed a child with no presumed father to have up to two years after he had reached the age of majority in which to bring an action. Id. The Montana Supreme Court held that the statutes created a “classification which distinguishes for disparate treatment children with presumed fathers and children without presumed fathers.” Id.
Montana’s discriminatory classification was “based on the state’s interest in maintaining stable families and in the prevention of stale or fraudulent claims.” Sasse, 801 P.2d at 601. The Montana Supreme Court noted that the five-year limitation may not be adequate because a mother may not be willing to commence an action on her child’s behalf during the limitation period. Id. The Supreme Court recognized that other Montana statutes allowed paternity and support claims to be brought much later than five years after the child’s birth and that the advances in genetic testing have removed “much of the fear of false or fraudulent claims of paternity.” Id. Relying on these findings, the Montana Supreme Court declared that the five-year limitation was unconstitutional because the limitation was not substantially related to an important governmental objective. 801 P.2d at 602.
In Wyoming, the legislature requires a child with a presumed father to bring a claim within five years after the child’s birth to declare that the father-child relationship does not exist. Section 14r-2-104(a)(ii). This type of action is necessary before the child may establish that another man is his natural father. Id. A child without a presumed father, however, has until three years after he has reached the age of majority to bring an action to determine the existence of the father-child relationship. Wyo. Stat. § 14-2-105(a)© (1977) (amended 1989 & 1991). Like the Montana statutes which were discussed in Sasse, Wyoming’s statutory scheme discriminates between children with presumed fathers and children without presumed fathers. In order to comply with the equal protection guarantees, the classification must be substantially related to an important governmental objective.
The majority opines that the public policy which protects a child’s right to legitimacy supports its decision to bar the child from bringing an action against the natural father. I simply cannot agree that we should protect the child’s right to legitimacy when it is the child himself who disregards his legitimacy by seeldng to establish that another man is his natural father. Furthermore, the five-year period may not be adequate because a mother may be reluctant or unable to bring an action within that time. Such an action may interfere with the mother’s efforts to maintain an on-going relationship with the natural father or, for that matter, with the presumed father. See Sasse, 801 P.2d at 601; Clark, 486 U.S. at 463-64,108 S.Ct. at 1915-16.
If the constitutional question had been properly presented, I would have, on the basis of the record presented in this case, followed the United States Supreme Court and the Montana Supreme Court and held that § 14-2-104(a)(ii) does not pass constitutional muster. The statutory scheme which discriminates between children with presumed fathers and children without presumed fathers is not substantially related to an important governmental objective.
A child has a right to be supported by his parents. See Smith v. Smith, 895 P.2d 37,42 (Wyo.1995); see also RKS v. SDM, 882 P.2d 1217 (Wyo.1994). When a child is disabled, the support obligation may continue even after the child has reached the age of majority. Pauling v. Pauling, 837 P.2d 1073,1079-80 (Wyo.1992). A child’s natural father may be better able to provide this support than the presumed father is. Additionally, Wyoming’s intestacy statutes allow an illegitimate child, who has established the father-child relationship under the Uniform Parentage Act, to inherit from his natural father. Wyo. Stat. § 2 — 4—107(a)(iii) (1980). By ignoring the reality that a presumed father is not the *765natural' father, we are potentially denying a child his right to be supported by, and inherit from, his natural father. We are, therefore, doing a disservice to a child when we deny him the right to prove who his natural father is.
The five-year limitation period promotes form over substance. We know from the genetic testing that the presumed father is not the child’s natural father, and it is ridiculous for us to continue to operate under the fiction that he is. In light of the serious concerns with the constitutionality of § 14-2-104(a)(ii), I encourage the legislature to examine the parentage statutes and to amend them so that they eliminate the improper discrimination between illegitimate children and legitimate children and between children with presumed fathers and children without presumed fathers. I also suggest to the legislature that, in the course of revising the parentage statutes, it take into account the fact that modern genetic testing is very advanced and reliable. I do not believe that we should continue to apply legalistic presump: tions while we disregard the results of genetic tests which show nearly conclusively which man fathered a child.