Who's Your Momma, Who Are Your Daddies? Louisiana's New Law of Filiation

• Author: Katherine Shaw Spaht
• Position: Jules F. and Frances L. Landry Professor of Law, Paul M. Hebert Law Center, Louisiana State University
• Pages: 307-386

Page 307

I Introduction

A Louisiana State Law Institute project that commenced in 1991 with meetings of the Marriage/Persons Committee culminated in the enactment of a series of new Civil Code articles in 2005. The new articles both reshape the organization and arrangement of articles on proof of filiation,¹ and respond to the challenges left in the wake of decisions by the United States and Louisiana Supreme Courts in the mid-1970s and early 1980s.² To a lesser extent, the articles also respond to challenges presented by the cutting-edge issues of assisted conception and reproduction.³

Just one year after the legislature enacted these new articles, it enacted implementing legislation contained in Act of the Louisiana Legislature No. 322 of 2006, which made changes in complementary legal provisions governing proof of filiation necessitated by the previous year's enactment. During the 2006 regular legislative session, negotiations over the implementing legislation with the Department of Social Services revealed the fullPage 308 extent of the current federalization of state family law and federal intervention into policy decisions historically reserved to the states.

This article will explore the policy decisions that shaped the new Civil Code articles on proving filiation, both during Law Institute Marriage/Persons Committee meetings and Council meetings, as well as during the two-year legislative process. Two other articles in this issue concentrate on different aspects of the same revision: a detailed article-by-article analysis and critique of the new law by a member of the Marriage/Persons Committee,⁴ and an examination of the new articles permitting a mother, for the first time and subject to restrictions, to contest the paternity of her husband.⁵ To assist in a discussion of the policies underlying many of the more significant changes, there are three appendices attached to this article: first, two reports of the legislative Task Force on Assisted Conception ("Task Force");⁶ second, the document distributed at the Law Institute Council ("Council") meetings posing the issues surrounding the judicial recognition of "dual paternity";⁷ and third, a document prepared during the 2006 legislative session by Jim Carter, staff attorney for the Law Institute, that dissects mandatory federal legislation to which he then correlates a list of pertinent Louisiana statutes constituting compliance.⁸

For the Law Institute's Marriage/Persons Committee, Act of the Louisiana Legislature No. 192 of 2005 represents fourteen years of concentrated work. Meetings at which the topic of filiation were discussed began in 1991. By far the most controversial and difficult issue discussed was dual paternity, considered by the Law Institute Council on six separate occasions. When and under what circumstances should a child whose filiation is established be permitted to establish that a second person is his biological father, and what should the legal consequences be? Many of those meetings ended with the Council's having reached a result that conflicted with the result reached at a previous meeting. Because the legislature created the Task Force on Assisted Conception, the bulk of those legal issues were bypassed at the Law Institute. Nonetheless, for the first time, the Civil Code now contains an article identifying the mother of the child,⁹Page 309 unnecessary practically before the development of techniques for assisted reproduction such as in vitro fertilization and gestational and/or genetic surrogacy. Yet, of all the lessons learned in the enactment of both the substantive law of filiation and its implementing legislation, the most salient is the extent to which the federal government now regulates the subject matter of family law, traditionally reserved to the states. It does so rather directly with "strings" attached to federal funds in the form of requirements imposed upon state law, and less directly by administrative regulations and interpretations of state and federal law by the federal agency's attorneys. The average American would find the extent of federal intrusion remarkable, especially as authorized during the administration of a Republican president.

II Identification of Mother

For the first time the Civil Code of Louisiana contains language identifying the mother of a child as "the woman who gives birth to the child."¹⁰ The scientific developments in assisted reproduction that necessitated a definition of motherhood, or what common law authorities would describe as a "default" rule, receive recognition in the reference at the end of the same Civil Code article with the language "except as otherwise provided by law."¹¹

Clearly, the vast majority of genetic mothers do indeed give birth to their children in Louisiana since enforceable contracts for paid genetic/gestational surrogacy are prohibited,¹² and only in a narrow set of circumstances does Louisiana law permit the genetic mother to arrange for gestational surrogacy by a relative.¹³

Otherwise, the gestational "mother," who does not supply the egg, undergoes in vitro fertilization within the meaning of Louisiana's statute,¹⁴ gives birth to a child, and constructively adopts the fetus and resulting child under Louisiana law, at least if she is married.¹⁵

Even if the gestational mother is not married, the general rule of article 184 applies and identifies the mother as she who gave birth.

The narrow exceptions to the principle that the woman giving birth to the child is the mother, which are cross-referenced in thePage 310 official comments to article 184,¹⁶ obviously create their own set of problems, leaving many unanswered questions.¹⁷ Because the legislative Task Force on Assisted Conception existed and it had issued both a majority and a minority report,¹⁸ the Council of the Law Institute chose to defer to those recommendations already submitted to the Louisiana Legislature. The legislature has yet to act on the recommendations of the Task Force, but any such action will now occur against the backdrop of the principle contained in article 184-the woman who gives birth to a child is that child's mother.

III Presumption Applied to First and Second Husbands: Disavowal and Resurrection of Presumption

Before June 29, 2005, when there were "overlapping" presumptions such that two different husbands of the mother were presumed to be the father of the child, the law resolved the conflict by identifying the husband of the mother at the time of conception as the father.¹⁹ Overlapping presumptions of paternity resulted from the amendment in 1976 to Civil Code article 184 that expressly extended the presumption of paternity to the husband of the mother of a child born during their marriage.²⁰ Thus, a child conceived during a first marriage because born within three hundred days of its termination²¹ but born during a secondPage 311 marriage was presumed to be the child of both husbands. Prior to its amendment in 1976 and the repeal of Civil Code article 137, the overlap theoretically did not exist because a woman was prohibited from marrying within ten months of dissolution of her first marriage on pain of nullity of her second marriage.²²

Despite the Law Institute's recommendation to revise the result in overlapping presumption cases based upon the cause for termination of the marriage,²³ the legislature chose to retain the result reached by the predecessor article: "If a child is born within three hundred days from the day of the termination of a marriage and his mother has married again before his birth, the first husband is presumed to be the father."²⁴ This article is the only one in Chapter 2 without an official comment because the Senate Committee amendment that restored the content of the first paragraph of article 186 to that of its predecessor also deleted the comment.

Unlike its predecessor, however, article 186 recognizes that the interests of two different husbands, as well as the child, are involved. New article 186 envisions and provides for the possibility that the husband of the first marriage might seek to disavow the child born to his former wife, a possibility heightened by the increasing leniency of the law as it relates to the time period applicable to the disavowal action.²⁵ To assure protection of thePage 312 second husband who...