'The Birth of a Parent: Defining Parentage for Lenders of Genetic Material' by Lynda Wray Black in (2014) 92
Nebraska Law Review argues that
With the advances in assisted reproductive technology, the scholarly quest for an all-inclusive legal definition of parentage has proliferated. All too often this quest becomes muddled in Constitutional tangles, in shifting mores, in quagmires of evolving and inconsistent legal parameters on what constitutes a “family”, and in the perceived need to reconcile conflicting state laws governing marriage, adoption and surrogacy contracts. This article suggests a return to the basics. Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders to parentage. Once the examination of the concept of parentage is disentangled from the complications of related, but logically independent, legal questions, it becomes clear that unless and until the rights and obligations of parentage are either (voluntarily) contractually waived or (involuntarily) judicially or statutorily terminated, the law must recognize as parent any individual (regardless of his or her gender, sexual orientation or marital status) who is biologically related to a child.
Black comments
Historically, questions surrounding the parentage of a
child were limited in scope to the identity of the biological
father for support or inheritance purposes. With time,
additional parentage issues presented themselves, namely, the
replacement of a biological parent through adoption or the use
of surrogacy arrangements to award parentage contractually to
infertile heterosexual couples. Consequently, until fairly
recently the totality of parentage questions could be resolved by
reference to a state’s paternity, adoption or surrogacy laws and
judicial decisions. If there were a question regarding the
identity of a child’s father, states provided several alternative
means by which a man could establish parental rights in a
child. Likewise, in the surrogacy context, under both traditional and gestational surrogacy arrangements, the
statutory and common law of a state governing surrogacy
contracts determined who shall be recognized as the legal
parents of the child. With respect to adoption, state law has
detailed the process by which the rights of the biological parents
are terminated and parental rights are established in the adoptive
couple. Within each of these evolving bodies of law, however, the starting point of parentage is a biological
connection to the child.
More recently, the parentage conversation has been
extended to children of same sex couples. Generally, the legal
discussion surrounding the parentage of children of same sex
couples has focused on establishing parentage using the laws of
adoption. This focus is misguided for children born “out of”
a lesbian relationship. The adoption process creates a relationship in one who is not a biological or birth parent. Not
only does parentage based upon an adoption model relegate
same-gender parents to a conceptually secondary, rather than
primary, parental status, all too often the adoption statutes
limit the right to adopt to “couples” which brings both the
gender and the marital status of the adoptive parent into
consideration. Adoption laws are premised on the absence of
or termination of someone else’s parental status coupled with
the demonstrative intent to parent by the adoptive parent.
Logically, adoption statutes place both qualitative and
quantitative limits on who may fill the parental vacancy through
the right to adopt. Someone else’s pre-existing status as
parent could constitute sufficient reason for denial of parentage by adoption; an analysis of all parties with parental claims is
required. Acquisition or continuation of traditional parentage
based upon consanguinity, by contrast, requires neither
satisfying a qualitative standard nor referencing the parental
rights of any other person or persons. The determination is
made as if in a vacuum with the vertical relationship of child to
biological parent as the only consideration. The rights of one
biological parent are contemporaneous with, equal to and not
mutually exclusive of the rights of another biological parent.
The questions of parentage posed by the introductory
hypothetical are more analogous to traditional questions of
paternity based upon establishing the biological connection to
the child than they are to questions of creating legal parentage
in a genetic stranger by adoption. Traditional thinking, namely, that a child can have only one mother, has curtailed
the logical extension of establishing paternity by biology to the
establishment of maternity by biology. As will be addressed
in Part II, maternity has been understood as a question of fact,
that fact being childbirth. Maternity is still a question of fact,
but the scientific facts have changed to permit two biologically
related females for one child. It has become prescriptive rather than descriptive to limit the label of biological mother to
either (i) the genetic mother or (ii) the gestational mother. If a
biological connection to the baby is the starting point for legal
parentage, the law must embrace the science supporting the
biological connection of not only the genetic mother but also the
gestational mother. ART terminology which is deemed to
waive the biological connection of parentage must be revised, as
the suppliers of sperm and eggs may be intended parents. In
addition, parentage statutes which remain gender-specific, with
one individual identified as father and the other identified as
mother, simply do not contemplate or accommodate parentage
by same-sex couples. Consequently, the statutes of many
states would fail to acknowledge the parentage of both mothers
in the introductory hypothetical. If the titles of parent are gender limited, once the “position” of mother is filled, the only
parental vacancy is for a father.
This article maintains that an intended parent with a
genetic relationship to a child should be entitled to full legal
parental rights and obligations with respect to that child
irrespective of the genetic parent’s gender. In order to achieve
this equality, the law must replace gender specific biological
routes to parentage with a gender-neutral genesis of parentage.
In the remainder of Part I will discuss two leading parentage
cases (one from the state of California and the other from the
state of Florida) in which a biological mother is seeking
recognition of her parental rights when such rights have been
cut off by her former partner who is the child’s gestational
mother. Part II of this article will examine two flaws in
current parentage statutes that have fostered this inequality,
namely, the false conflict between the gestational and the
genetic mother and, secondly, the unintended outcome of
gender-specific paternity statutes that provide men, but not
women, with several means by which to establish parental
rights. Part III suggests that, in light of the steady increase in
the number of nontraditional families and the claim to parentage
by the adults in these nontraditional relationships with respect to
the children they intended to and did raise as their own,
current statutory schemes no longer provide a reliable starting
point for the determination of parentage. This part will
advocate a paradigm shift, namely, that both statutes and courts
return to the essence of the parent-child relationship: genetics.
By using the genetic relationship as a foundation for the passage of gender-neutral parentage statutes and by embracing advances
in ART which extend the biology of parenting to a third
gestational parent, biology (limited by the intent to parent) will
be the first cornerstone of legal parentage. Part III will
propose a parentage decision tree that incorporates both the
intent to parent and the biological bases for parentage without
respect to the gender of the parent. Additionally, Part III will
demonstrate that gender-neutral parentage statutes are consistent
with other existing parentage concepts and public policy
positions. Part IV will discuss the measures that private
parties, state agencies and courts should take to resolve
parentage cases in a gender-neutral manner until state
legislatures enact explicit gender-neutral parentage statutes.
