The Birth of a Parent: Defining Parentage for Lenders of Genetic Material

• Publication year: 2021

92 Nebraska L. Rev. 799. The Birth of a Parent: Defining Parentage for Lenders of Genetic Material

The Birth of a Parent: Defining Parentage for Lenders of Genetic Material

Lynda Wray Black(fn*)

TABLE OF CONTENTS

I. Introduction: Meet the Parents ........................ 800

II. Why Our Understanding of Parentage Is So Muddled . . 802
A. Assisted Reproductive Technology Changes the Facts ............................................. 810
B. K.M. v. E.G.: California Confronts the Problem ..... 813
C. T.M.H. v. D.M.T.: Florida Confronts the Problem with a Different Initial Outcome ................... 818

III. The Unintentional Genesis of the Problem ............. 825
A. The False Conflict Between the Genetic and the Gestational Mother ................................ 825
B. The Disparate Legal Avenues to Parentage Based upon Gender-Specific Paternity Statutes ........... 828

IV. The Parentage Decision Tree: A Conceptual Model for State Parentage Statutes .............................. 829
A. A Gender-Neutral Parentage Decision Tree Does Not Disrupt Other Concepts in the Parentage Framework ....................................... 834
B. Gender-Neutral Parentage Is Consistent with Other Advances in the Law .............................. 835
C. Gender-Neutral Parentage Is Consistent with the Best-Interest-of-the-Child Standard Used in Family Law ............................................... 836

V. The Temporary Fix: What the Private Sector, State Agencies, and the Courts Can Do ...................... 838

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VI. Conclusion ............................................ 841

I. INTRODUCTION: MEET THE PARENTS

No man ever steps into the same river twice, for it is not the same river and he is not the same man.(fn1)

After nearly a decade together, a loving couple with their lives intertwined socially, emotionally, physically, and financially, decides to have a baby. When it is discovered that the mother-to-be ("Mother") is infertile, the couple avails itself of modern reproductive technology.(fn2) A fertilized egg, comprising biological material from one parent and from an anonymous donor, is implanted into Mother. Nine months later, a beautiful baby girl is born, and the parents proudly announce her birth.

Two and one-half years later, the parents separate. A divorce is not necessary to disentangle the family, as the couple's twelve-year relationship had never been memorialized by marriage.(fn3) Following the separation, each parent continues as parent to their daughter whose surname since birth is the hyphenated last names of her two parents. Each parent shoulders one-half of the child's expenses. The child resides primarily with Mother but spends roughly equal time with each parent.(fn4) Though they have ceased to live as a single-family

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unit, undoubtedly from the child's perspective,(fn5) she has two loving parents.

When the parents' cooperation turned into animus, Mother relocated with the child to Australia. Devastated, the abandoned parent sought to gain shared custody of the child. However, the trial judge presiding over the case only acknowledged Mother as a parent and summarily rejected the case.(fn6) Under the applicable state law,(fn7) the child had only one parent. How could it be that a biological progenitor who had intended, anticipated, planned for, loved, raised, and financially supported a child could possess no rights as parent(fn8) to that child?

The answer turns on the fact that the other parent in this hypothetical was not the father, but rather another mother who, in spite of her genetic link to her daughter, was found to possess no familial relationship to her child under the relevant state law.(fn9) With the use of ART,(fn10) the number of participants in the procreative process has increased from the biologically required minimum of two to as many as

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six(fn11) or even eight.(fn12) The law must adjust to these possibilities. While there may be additional non biological claimants to parentage,(fn13) this Article sets forth the conceptual starting point that frames the legal definition of parentage, namely, that the law must recognize as parent any individual (regardless of gender, sexual orientation, or marital status) who is biologically related to a child.(fn14)

II. WHY OUR UNDERSTANDING OF PARENTAGE IS SO MUDDLED

Historically, questions surrounding the parentage of a child were limited in scope to the identity(fn15) of the biological father for support or inheritance purposes.(fn16) With time, additional parentage issues presented themselves, specifically, the replacement of a biological par

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ent through adoption or the use of surrogacy arrangements(fn17) to award parentage contractually to infertile heterosexual couples.(fn18) 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.(fn19) Likewise, in the surrogacy context, under both traditional(fn20) and gestational(fn21) surrogacy arrangements, the statutory and common law of the state that governed a surrogacy contract determined who should be recognized as the legal parents of the child.(fn22) With respect to adoption,

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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.(fn23) Within each of these evolving(fn24) bodies of law, however, the starting point of parentage is a biological connection to thechild.(fn25)

More recently, the parentage conversation has been extended to children of same-sex couples.(fn26) Generally, the legal discussion surrounding the parentage of children of same-sex couples has focused on establishing parentage using the laws of adoption.(fn27) This focus is misguided for children born "out of"(fn28) a lesbian relationship.(fn29) The adoption process creates a relationship in one who is not a biological or

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birth parent.(fn30) Not only does parentage based upon an adoption model relegate same-gender parents to a conceptually secondary, rather than primary, parental status,(fn31) but 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.(fn32) 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.(fn33) Logically, adoption statutes place both qualitative and quantitative limits on who may fill the parental vacancy through the right to adopt.(fn34) 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

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is required.(fn35) Acquisition or continuation of traditional parentage based upon consanguinity,(fn36) by contrast, requires neither satisfying a qualitative standard(fn37) nor referencing the parental rights of any other person or persons.(fn38) The determination is made as if in a vacuum with the vertical relationship of child to biological parent as the only consideration.(fn39) The rights of one biological parent are contemporaneous with, equal to, and not mutually exclusive of the rights of another biological parent.(fn40)

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.(fn41) Traditional thinking, namely, that a child can have only one mother,(fn42) has curtailed the logical extension of establishing paternity by biology to the establishment of maternity

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by biology.(fn43) As will be addressed in Part II, maternity has been understood as a question of fact, that fact being childbirth.(fn44) Maternity is still a question of fact, but the scientific facts have changed to permit two biologically related females for one child.(fn45) 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.(fn46) If a biological connection to the baby is the starting point for legal parentage,(fn47) the law must embrace the science supporting the biological connection of not only the

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genetic mother but also the gestational mother.(fn48) 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.(fn49) In addition, parentage statutes that 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.(fn50) 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...