“Whose Child Is This?”: Determining Legal Status for Lesbian Parents Who Used Assisted Reproductive Technologies*

• Date: 01 July 2008
• Published date: 01 July 2008
• DOI: http://doi.org/10.1111/j.1741-3729.2008.00506.x
• Author: Denise Skinner,Jan Hare

’’Whose Child Is This?’’: Determining Legal

Status for Lesbian Parents Who Used Assisted

Reproductive Technologies*

Jan Hare Denise Skinner**

Abstract: Assisted reproductive technologies (ARTs) have helped heterosexuals, lesbians, and gays fulfill desires to

become parents. In this article, we identify assumptions upon which parentage rights in the United States are based.

Examining recent legal decisions in California concerning 3 families headed by lesbian parents who used ARTs, we

find that existing law inadequately addresses the circumstances of same-gender parents. Using the concepts of child-

centered analysis and moral parenthood, we build policy recommendations that can serve as guidelines for states in

developing comprehensive legislation. These recommendations ensure equity in court decision making for same-

gender couples and their children.

Key Words: assisted reproductive technologies, children’s rights, family law, lesbian parents, Uniform Parentage Act.

Recent advances in reproductive technology and sci-

ence have created new delivery systems by which

children arrive in families. For a variety of reasons,

couples, single people, heterosexuals, gays, and les-

bians have turned to assisted reproductive technolo-

gies (ARTs) to fulfill desires to become parents

(Ouellette et al., 2005; Robertson, 2004). Together

with other social trends, such as cohabitation,

divorce, single parenting, and remarriage, these tech-

nologies have deconstructed the traditional defini-

tion of family and challenged the historical tenets

upon which parental rights and responsibilities are

based (Skinner & Kohler, 2002). They have also

added complicating dimensions to children’s rights

regarding access to their parents.

ARTs vary widely in their complexity and cost

(Society for Assisted Reproductive Technology, 2008).

For example, female infertility may be successfully

addressed with only the use of fertility drugs to stimu-

late ovulation. Male infertility may be successfully

addressed with the use of an anonymous sperm donor.

Comparatively speaking, both of these interventions

are inexpensive. On the other hand, a couple (or in-

dividual) may, for various reasons, need an arsenal of

procedures and services to achieve a pregnancy: donor

eggs, donor sperm, in vitro fertilization, a surrogate

contracted to carry the pregnancy, or all. This scenario

is not only exceedingly costly but also creates a conun-

drum for societal institutions that rely on simple cri-

teria traditionally used to define the rights and

obligations of parenthood. Although these ‘‘newfan-

gled families’’ defy conventional structural definitions

of family, they still lay claim to the age-old functions

of parents (Ehrensaft, 2005).

To date, marriage for same-gender couples is ille-

gal in the United States with the exception of Massa-

chusetts. Nine states, as well as the District of

Columbia, either through state statutes or appellate

courts offer second-parent adoption as a legal

option. In addition, second-parent adoptions for les-

bian and gay parents have been granted at the trial

court level in 18 other states (Human Rights Cam-

paign, 2008). Meanwhile, the 2000 Census Bureau

reported 601,209 same-gender partner households

*We thank Brent Skinner, JD, Brynn Metzger-Hare, JD, Jeanne Rothaupt, PhD, and Susan Wolfgram, PhD, for their insightful comments on this article.

**Jan Hare is a professor in the Department of Human Development and Family Studies, College of Human Development, University of Wisconsin-Stout, Menomo-

nie, WI 54751 (harej@uwstout.edu). Denise Skinner is a professor in the Department of Human Development and Family Studies, College of Human Development,

University of Wisconsin-Stout, Menomonie, WI 54751 (skinnerd@uwstout.edu).

Family Relations, 57 (July 2008), 365–375. Blackwell Publishing.

Copyright 2008 by the National Council on Family Relations.