Too many cooks in the kitchen? The potential concerns of finding more parents and fewer legal strangers in California's recently proposed multiple-parents bill.

• Author: Pfenson, Elizabeth A.

"When it comes to parenting, three's a crowd." (1)

INTRODUCTION

While "family life" remains an important source of joy for the vast majority of Americans, (2) the shape and structure of American family units have changed rapidly such that many American families today would have been almost inconceivable even fifty years ago. (3) Just over one-third of Americans say that the institution of marriage is becoming obsolete, and increasingly fewer Americans think that the traditional family structure of one father and one mother living together with their biological children is worth pursuing. (4) As of 2008, only 52% of Americans adults were married. (5) A large majority of Americans no longer think of marriage as the only way to form a new family--86% of Americans identify a single parent and child as a family, 80% identify an unmarried couple living together with a child as a family, and 63% agree that a gay or lesbian couple raising a child together constitutes a family. (6) Families, once established, are becoming increasingly more fluid--more than 40% of American adults have at least one step-relative in their family. (7)

In this developing cultural landscape, fewer women feel the need to wait until they are married to bear children, (8) and, as of 2010, roughly 27% of American fathers lived apart from at least one of their children. (9) Multi-partner fertility (having children with more than one partner) has become more prevalent, and accordingly children live in an increasingly diverse array of households. (10)

While family units come in a variety of shapes and sizes, there are a number of ways for a child to enter the world as well. Individuals or couples wishing to have a child have many options open to them, including purchasing donor eggs or sperm, arranging for a traditional or gestational surrogate, procuring embryo donations, or some combination thereof. (11) An estimated 30,000-60,000 children are conceived in the United States annually through sperm donations. (12) Over 1% of all children born in the United States every year are conceived using artificial reproductive technologies, which include methods described above as well as methods in which eggs are removed from a woman's ovaries, combined with sperm in a laboratory, and then returned to that woman or another host. (13)

In cases where an egg from one person is combined with the sperm from another and implanted into a surrogate, with the intention that the resulting child will be placed with an entirely different set of parents, what a court should do when the surrogate wants to keep the baby (14) or when one or both of the intended parents back out (15) can be an entirely open question. Determinations of parenthood and appropriate custodial arrangements can also be difficult when children are conceived "the natural way." Courts routinely face situations in which a married woman has a child by another man, (16) or where a lesbian woman and a male friend conceive with the intention that she raise the child with her partner (with or without the man's involvement). (17)

Determining who a child's parents are has been and remains a very important endeavor undertaken by courts, as state law is largely built on a system that prefers parents over non-parents in making custody determinations and confers certain rights and responsibilities only on the very limited number of people that the state recognizes as "parents." (18) Traditionally, this limited number has been two, but some judges have responded to the unique families that come into their courtrooms by increasing that number.

Legislators have considered ways to increase the flexibility that judges have when adjudicating family structures. One such legislator, California State Senator Mark Leno, who was moved by a particularly messy dependency action that turned on the court's determination of a child's parentage, (19) introduced Senate Bill No. 1476 (the "Bill") in early 2012 in an attempt to provide for more equitable outcomes in family court proceedings. (20) The Bill was designed to give courts the authority to find that children could, in situations of conflicting presumptions of parenthood, have more than two parents if such a finding would be required to protect the best interests of the child. (21) In formulating the Bill, Senator Leno relied on movements toward official recognition of multiple parenthood occurring in the statehouses and courthouses of the District of Columbia, Delaware, Maine, and Pennsylvania. (22) This Bill was ultimately vetoed by Governor Edmund G. Brown, Jr., in September, 2012, (23) but the issues raised by the Bill are by no means settled. It is likely that a largely similar bill may be passed in the near future given certain proposals in academia and the growing sense among some that judges need more ways to deal with complex family units.

This Note explores issues surrounding the concept of multiple parenthood, looking closely at Senator Leno's Bill and also the movements in other states cited by Senator Leno for support. It argues that allowing courts to find that a child has more than two parents--with all of the attendant rights and responsibilities of parenthood--raises constitutional concerns as well as very serious practical problems affecting the health and well-being of the child. Part I of the Note examines the relevant legal doctrines informing the issue of parenthood, looking first at the constitutional framework of parenthood, second at presumptions of parenthood that have traditionally provided for determinations of paternity and maternity, and third at other doctrines that have developed to provide rights and responsibilities to those adults other than natural parents (including in loco parentis, parenthood by estoppel, de facto parenthood, and third party or grandparent visitation statutes). Part I further introduces the "best interests" standard, state child support systems, and the reasoning behind both, in order to provide background to a discussion of the practical impact of the Bill. Part II then examines how these doctrines have been employed and wielded in the District of Columbia, Delaware, Maine, and Pennsylvania. Part III focuses on California and the Bill, providing an analysis of the Bill's application of the best interests standard, the concept of child support, and the nature of its provision for multiple parents. Part IV examines the likely practical effects of such legislation and suggests that providing for a child to have more than two parents may create unintended negative consequences. The Note concludes that the expansion of rights for one class of people (those seeking parenthood status) results in a decrease in the rights of natural or adoptive parents, ultimately harming the child more than anyone else.

1. RELEVANT LEGAL DOCTRINES

   1. The Constitutional Rights of Families, Parents, and Children

      The "sanctity" of the family unit is "deeply rooted in this Nation's history and tradition." (24) Parents have a fundamental liberty interest in the care, custody, and control of their children; this liberty interest "is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court]" and is protected by the Due Process Clause of the Fourteenth Amendment. (25) Parents' fundamental rights include directing the upbringing and education of their children (26) and "the right, coupled with the high duty, to recognize and prepare [the child] for additional obligations" (27) as well. Recognizing that historically the legal concept of family had some connection to property law, in Parham v. J.R., the Supreme Court squarely rested the modern legal concept of family on the "presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions," and, more importantly, that "natural bonds of affection lead parents to act in the best interests of their children." (28) Due to these presumptions and the historic respect that the State has had for the integrity of the family unit, so long as a parent is not unfit there is normally no reason for the State to question his or her decisions. (29) Parents also have a fundamental right to control with whom their child associates and develops relationships as a derivative of their right to control the child's upbringing. (30) Courts cannot infringe on these fundamental parental rights merely because they might think a better decision could have been made. (31)

      On a few occasions the Supreme Court has taken up the constitutionality of what it means to be a legally-recognized parent in the first place. While biology plays a major role in the determination of parenthood, it is not conclusive. In Lehr v. Robertson, the Court held that biology alone does not necessarily afford a natural parent constitutionally-protected rights. (32) The Court explained that the "significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring"--an opportunity that must be grasped before it can be enjoyed. (33) Biology alone does not always establish a male's legal parenthood--in Michael H. v. Gerald D., the Court found that states could have overriding policy interests that justify denying a so-called natural father the right to a parent-child relationship when another man was presumed to be the child's father. (34) The Supreme Court has not defined parenthood in terms of one's function in the child's life or intent to be a parent, but an increasing number of state courts fill the gap that was left when the Supreme Court rejected determinations of parenthood by biology alone with theories of functionality and intent. (35)

      The rights of children have received less attention from the Supreme Court than the rights and responsibilities of parents. On one occasion the Court dismissed out of hand the idea that a...