07 October 2013


'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.