Consideration of genetic connections in child custody disputes between same-sex parents: fair or foul?

• Author: Feinberg, Jessica

1. INTRODUCTION

   As social acceptance of same-sex relationships has grown at a rapid pace, it has become increasingly common for same-sex couples to welcome children into their families. As of 2010, approximately 115,000 same-sex couples in the united States were raising children in their households. (1) This number is only likely to rise as legal protections governing same-sex relationships continue to expand, social acceptance of same-sex relationships continues to grow, and lesbian, gay, bisexual, and transgender ("LGBT") individuals become increasingly comfortable living openly and forming families. (2) When same-sex couples decide to bring new children into their families, they commonly take one of the two following approaches: they adopt a child, or they use assisted reproductive technology ("ART") to conceive a child. (3) Advancements in ART in recent decades, and the removal of barriers to the use of ART by same-sex couples, (4) have resulted in a rising number of same-sex couples choosing to have children using ART. (5) Because it is not yet possible for same-sex couples to conceive children using the genetic materials of both members of the couple, children bom to same-sex couples using ART generally are genetically related to only one member of the couple. (6)

   Historically, in child custody disputes involving same-sex couples who conceived their children through ART, the law only recognized the parent-child relationship between the child and the member of the same-sex couple who was the child's genetic parent. (7) Consequently, non-genetic parents in these situations were frequently denied standing to seek custody or visitation following the dissolution of their relationship with the child's genetic parent, even though the couple had decided together to bring the child into their family. (8) Courts were generally extremely reluctant in the context of dissolving same-sex relationships to grant custody or visitation rights to a non-genetic parent over the wishes of the genetic parent, whose relationship with the child was entitled to significant constitutional protection. (9) Over the years, as the LGBT rights movement gained momentum, a great deal of legal scholarship emerged urging judges and lawmakers to use various mechanisms to grant greater legal rights to non-genetic parents in same-sex relationships. (10)

   Although non-genetic parents in same-sex relationships still face serious hurdles in seeking parental rights in many jurisdictions, the movement to provide greater rights for these parents has experienced notable and significant success. (11)

   In recent years, it has become far more common for both members of a same-sex couple to be recognized by the law as the legal parents of a child conceived through ART during the couple's relationship, despite the fact that the child is genetically related to only one member of the couple. (12) This trend has occurred for a variety of reasons. As an initial matter, between 2004 and 2015, the legalization of same-sex marriage expanded rapidly throughout the United States, (13) culminating with a 2015 Supreme Court decision that struck down as unconstitutional all remaining state bans on same-sex marriage. (14) Importantly, a number of courts have applied marriage-based paternity provisions, in which a woman's spouse is considered or presumed by law to be the legal parent of a child conceived by that woman during the marriage, to same-sex couples, and this will likely become increasingly common as states adjust their laws to reflect the recent nationwide legalization of same-sex marriage. (15) Moreover, married same-sex couples who conceive children through ART can use existing stepparent adoption procedures to ensure that the non-genetic parent obtains legal parent status. (16) Another reason for the greater legal recognition of same-sex parents is due to the increased availability in recent years of second-parent adoption, through which an individual can adopt his or her same-sex partner's child regardless of whether the couple is married. (17) Through this process, which is currently available in at least thirty-six states, the adopting partner becomes the child's other legal parent for all purposes under the law. (18) Finally, a number of courts and legislatures have adopted equitable parenthood theories, such as the de facto parent, psychological parent, and parent by estoppel doctrines, to provide visitation and custody rights to an individual who is involved in a same-sex relationship with a child's legal parent and who has acted in a parental role to that child. (19) While these doctrines vary significantly by state, (20) some of the states that have adopted such doctrines treat qualifying individuals as legal parents for purposes of child custody and visitation determinations. (21)

   These advancements toward the increased recognition of both members of same-sex couples as the legal parents of their children and the decreased importance placed upon genetic connections in determining parental status are incredibly important, hard-won victories for LGBT individuals and their families. Despite significant success, however, the battle to provide equal parental rights to non-genetic parents in same-sex relationships is far from over. While existing legal scholarship has focused on granting legal parent status to non-genetic parents in same-sex relationships, (22) this scholarship has yet to explore the essential question that will arise next. Namely, existing scholarship has yet to address whether a non-genetic parent within a same-sex relationship, although legally recognized as a parent, will nonetheless face discrimination under judicial application of the best interests of the child standard, which is the standard applicable to custody disputes between two legal parents.

   In same-sex custody disputes in which both parties are recognized as legal parents, the genetic parent and non-genetic parent technically should be on equal legal footing. (23) Genetic connections, however, have traditionally been a primary method of determining whether society and the law view an individual as a child's parent, and case after case involving same-sex couples with children conceived via ART has demonstrated that, in the heat of a legal proceeding, genetic parents will use their genetic connections to the child to support their arguments for superior parental rights. (24) Moreover, due to the long history linking genetics to parental legal rights, there is a high likelihood that a significant number of judges will weigh genetic connections as a factor in favor of granting custody rights to the genetic parent. (25) Importantly, there is currently nothing prohibiting judges presiding over custody disputes from applying a preference in favor of genetic legal parents over non-genetic legal parents. (26) Judges exercise substantial discretion under the best interests of the child standard, and in most states, judges can weigh any factor they deem relevant in determining what custody arrangement will further the child's best interests. (27) As a result, despite the significant advancements that have allowed non-genetic parents within same-sex relationships to obtain the status of legal parent, discrimination against non-genetic parents is likely to continue. (28) Instead of surfacing at the stage in the legal process at which judges determine which individuals are the child's legal parents, however, discrimination against non-genetic parents within same-sex relationships will likely begin to surface at the stage in which judges determine which custody arrangement will further the child's best interests. (29)

   This Article argues that child custody law must expressly address the potential judicial bias surrounding genetic connections in a timely manner so that non-genetic legal parents of children conceived via ART are not discriminated against in custody determinations. In addition, it offers a proposal regarding how the law should be reformed to mitigate discrimination against non-genetic legal parents in the child custody realm. Such discrimination would hurt not only the parents in question, but also their children, who often have incredibly strong bonds with their non-genetic parents. Social science research (30) demonstrates that genetic connections are an ineffective proxy for determining superior parental abilities and parent-child bonds, and children of same-sex parents, like all other children, deserve to have custody determinations made based upon their best interests. Therefore, judges presiding over custody disputes between parents who, by mutual agreement, conceived their children via ART must be prohibited from applying a preference in favor of one parent over the other parent on the basis of genetic connections to the child. This would ensure that in determining which custody arrangement furthers the best interests of the child, judges undertake the critical work of examining actual evidence of each parent's caretaking abilities and relationship with the child instead of relying on genetic connections as a shortcut or substitute for weighing these important factors.

   The Article is organized in the following manner. Part II explores the history of the role genetic connections have played in making legal parenthood determinations in the United States. Part III first discusses modem legal developments that have weakened the tie between genetic connections and parenthood determinations. It then analyzes the prominent role that genetic connections continue to play in determinations of legal parenthood despite the advancements that have occurred in recent years to provide non-genetic parents with greater legal rights and protections. Part IV examines current law governing child custody disputes between two legal parents. It argues that it is highly likely that, in custody disputes involving two legal parents who conceived their child via ART, the...