'With liberty and justice for all (families)': the modern American same-sex family.

• Author: Gonzalez, Lissette

1. Introduction II. Assisted Reproductive Technology and Its Effect on Same-Sex Parentage III. Uniform Parentage Act: Narrow vs. Enlightened Application Among The States IV. The Fundamental Right of a Natural Parent: A History of Flexibility V. The Need for Evolution in Parentage Law A. Free Exercise of the Right to Procreate B. The Policies Underlying Parentage Law 1. Extensions of "Tradition" in Furtherance Thereof 2. Extension to Same-Sex Parents: The Next Logical Step? C. The Inadequate Remedy of Adoption 1. Florida is the Last State to Lift its Ban on Gay Adoptions 2. State Adoption Laws and their Underlying Policies 3. The Hurdle of Second-Parent Adoptions VI. Redefining "Parent" and Family: Proposed Solutions A. Recognizing Varying Degrees of "Parent" B. Intent During the Pendency and Formation of the Parent-Child Relationship C. Extending the Marital Presumption to Same-Sex Legal Unions VII. Conclusion I. INTRODUCTION

   Evolutions in societal norms have redefined what it means to be a family in today's society. (2) Due to the widespread shift in those who seek the aid of reproductive technologies, the number of would-be parents has greatly expanded. (3) This great range of parenting possibilities presents novel and complicated issues in terms of legal parentage of children. (4)

   In an attempt to address these novel issues, the Uniform Parentage Act was adopted in 2000, but has changed little since. (5) Much inconsistency exists among and within the several states in determinations of legal parentage, largely in the area of same-sex couples. (6) Adhering strictly to a definition of "parent" that does not reflect realities of families as they exist within society has the effect of violating those families who fall outside its scope. (7)

   Remedies such as adoptions and co-parenting agreements afford non-biological same-sex parents a remedy at law in some instances, but loopholes still create obstacles. (8) This presents an issue as to the traditional understanding of a "parent" and calls for a broader interpretation of the term to encompass parents as they exist among non-traditional family units today, so as to afford them and their children proper and predictable protection under the law. (9) In particular, a "parent" should include the same-sex non-biological parent of a child conceived via reproductive technology. Such a change is consistent with the underlying policies and rationales involved in legal parentage, (10) and can, in effect, serve to further them while ensuring the child is afforded a legally recognized relationship with his or her second parent. (11)

   This Comment does not propose that all third parties should be afforded the opportunity to co-parent a child, but focuses only on the necessitated, yet limited, expansion of this fundamental right. (12) As the Vermont Supreme Court noted, "the term 'parent' is specific to the context of the family involved." (13) We have seen evolutions of society and of our fundamental fights as its members in the past, but is the time right for another forward leap?

   Part II of this Comment addresses the effect that assisted reproductive technology has had on same-sex parentage. (14) Part III addresses the Uniform Parentage Act and its failure to adequately address same-sex couples as legal "parents," therefore, creating the great inconsistencies among and within the several states. (15) Part IV addresses the fundamental right of a natural parent over his or her child and the possibility for the fight's modern evolution. (16) Part V addresses a woman's fundamental fight to procreate, the policies underlying parentage laws, and current adoption laws, all of which are demonstrative of the need for an evolved understanding and application of what it means to be a "parent" in today's society in order to afford same-sex parents adequate legal fights under the same legal presumptions as other "parents." (17) Part VI explains how that presumption should be, and in some cases is, extended to same-sex couples, and also proposes the best means by which to do so. (18) Ultimately, patterns of constitutional evolution, growing nationwide acceptance of same-sex adoption, and the policies underlying parentage law are in accord with evolving the legal definition of a "parent" to encompass same-sex non-biological parents and afford them predictable and consistent constitutional protections. (19)

2. ASSISTED REPRODUCTIVE TECHNOLOGY AND ITS EFFECT ON SAME-SEX PARENTAGE

   Assisted reproductive technology affords many non-traditional couples the opportunity to become parents via artificial insemination, in vitro fertilization, or surrogacy. (20) As a result, parentage has evolved from its traditional form, where a husband and a wife use their own sperm and egg to conceive a child carded by the wife, to pregnancy via technological conception, creating varying forms of parentage. (21) Where a woman carries and delivers a child conceived with the sperm from a man other than her husband, she is the natural mother, but her husband is only the presumed father at law. (22) However, where a same-sex couple conceives, some states recognize equal rights in the non-biological parent, while others recognize limited rights or none at all, at their discretion. (23) Traditional legal doctrines based on the presumption of a traditional family of a mother and a father do not properly consider technological conception and the differing family units created therefrom, and thus do not adequately protect the rights of the families involved. (24)

   In K.M. v. E.G., a lesbian couple signed an ovum donation consent form where K.M., the egg donor and partner of E.G., "agreed not to attempt to discover the identity of the recipient thereof," and "disclaimed all rights to the resulting children." (25) Although the language of the agreement clearly did not pertain to the couple or to their arrangement, this was the standard contract required in order to move ahead with the artificial insemination of E.G. (26) While K.M. was clearly distinguishable from an anonymous donor, having donated her ova to her lesbian partner with the intent of co-parenting the child, the dissent argued otherwise and felt that recognizing rights in K.M. would "threaten to destabilize ovum donation and gestational surrogacy agreements." (27) Although ultimately the court found in favor of K.M., this case presents an excellent example of the gaping holes in the law surrounding both parentage and reproductive technologies that lead to many situations where courts either struggle to find a place for same-sex families within existing laws, and sometimes it is quite a stretch, or merely refuse to recognize any legal rights at all. (28)

3. UNIFORM PARENTAGE ACT: NARROW VS. ENLIGHTENED APPLICATION AMONG THE STATES

   The original Uniform Parentage Act ("U.P.A.") was adopted in 1973 to create uniformity in the law as it pertained to children born to unmarried parents. (29) In 2000, a new version was adopted, and amended in 2002, to address modern issues of parentage including the growing use of reproductive technologies. (30) Although the Act recognizes the parent-child relationship may arise in different contexts, it still defines the parent-child relationship as biological or adoptive, and subject to a gestational agreement only if the state laws hold such agreements valid or enforceable. (31) In addition, many states continue to adhere to the traditional criteria established by the 1973 Act. (32) Meanwhile, the use of reproductive technologies by same-sex parents is continually increasing, and the pressing need to develop the legal definition of the term "parent" to encompass same-sex couples remains unfulfilled. (33)

   Among the several states exists a muddle of inconsistencies and unpredictability, with some recognizing parental status in those who have participated in the child's life before and after birth as de facto or psychological parents, (34) others flatly rejecting parentage in anyone other than a biological or adoptive parent, (35) and others with contradictory holdings within the state resulting from similar cases. (36) In efforts to recognize that outdated law should not preclude courts from establishing the parental rights of same-sex non-biological parents, some states attempt to fit these cases into a statutory framework that was not made to encompass them. (37) Other states acknowledge no statutory remedy is available and, instead, look to the common law doctrines to afford them parental rights. (38)

   Psychological parent, (39) de facto parent, (40) and in loco parentis (41) are common law doctrines used to describe a third-party who has developed a parent-like relationship with a child and may have standing to seek visitation. (42) In states that recognize third party claims to parentage based on these or similar doctrines, a legal "stranger" may have rights to custodial responsibilities over the child. (43) As early as 1963, proponents explained:

   The mutual interaction between adult and child, which might be described in such terms as love, affection, basic trust, and confidence, is considered essential for the child's successful development, and is the basis of what may be termed psychological parenthood. It is this psychological parenthood, rather than the biological events[,] which may precipitate such a relationship, which many psychologists identify as the sine qua non of successful personality development. (44) In recognizing third party visitation rights against the wishes of a fit, natural parent, these doctrines are said to deviate from the exclusive rights traditionally afforded to a natural parent. (45) Instead, determinations based on these doctrines focus on the intent of the parties at the commencement of the pregnancy (46) and during the formation and pendency of the parent-child relationship. (47) Also considered is whether the non-biological parent has "[taken] the child into [her] home and [held] it...