Report

Parentage Determinations

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“For most of human history…‘being a father was a matter of conjecture, and being a mother was a matter of fact.’ Now nothing can be known for sure.”1

The new reproductive technologies are so emotional and contentious precisely because they challenge our basic understanding of what it means to be a parent. Throughout history, each child has had two, and only two, biological parents. As a result, U.S. family law is built around the concept that a child will have, at most, two legal parents. Until recently, those parents were either biological or adoptive. And it is a zero sum game—in order to adopt a child, birth parents must first relinquish their rights or have them terminated.

Now, due to the wonders of “collaborative reproduction” (the phrase used when intended parents recruit others to help them bring a child into existence), a child can have up to three biological parents—the man who provides the sperm, the woman who provides the egg, and the woman who carries the pregnancy and gives birth. Up to three more people also may be viewed under the law (and in their own eyes) as a parent of a child—the “intended” or “contracting” parent(s) who sought to create a child through assisted reproduction, and the husband of a gestational surrogate who has elected tokeep the child or children to whom she gave birth.

Which of these adults, and how many of them, should qualify as the legal parents? In Pennsylvania, the answer may now be three. In April 2007, an appellate state court panel ruled that two lesbian co-parents and their sperm donor friend all are the legal parents of and financially responsible for the children they had created.

So far, no other appellate court in the United States has assigned more than two legal parents to a child. In fact in a well-known surrogacy case in which the genetic/intended father, the genetic/intended mother, and the gestational surrogate all had claims as legal parents, the California Supreme Court expressly declined to expand the number of legal parents beyond two.

But additional courts are likely to face this question in the coming years. And the possible parentage combinations they could encounter seem almost endless. A child could have three women vying to be its mother—the egg provider, the gestational carrier, and an intended mother—or no mother at all. Recently, a Maryland man and the surrogate he hired to carry twins created with his sperm and a donor’s eggs won a court case to have no mother listed on the birth certificate.

One day, technology may allow for two genetic mothers: a technique known as ooplasmic transfer involves injecting ooplasm (the material outside the cell’s nucleus) from one woman’s egg into another woman’s egg. It was used in a handful of cases where it was thought that a woman’s infertility was caused by her ooplasm. Because DNA exists in both the nucleus and the ooplasm, a child born from this process would have two genetic mothers. The Food and Drug Administration, however, currently has a moratorium on clinical trials using this procedure.

All states have parentage acts that provide statutory guidelines for determining the paternity of a child when it is uncertain, but those laws are not sufficient to address the complicated circumstances that result from the use of new reproductive technologies. Slowly but surely, the states are beginning to recognize the need for legislation that explicitly governs the determination of paternity and maternity when a child has been created with assisted reproduction.

Nevertheless, the states that have moved in this direction have provided a patchwork response. The latest version of a model law known as the Uniform Parentage Act was approved by the National Conference of Commissioners of Uniform State Laws in 2002 and includes several provisions that address assisted reproduction and gestational agreements. But only seven states had enacted it by 2006, and none passed it verbatim.

Other states have crafted their own solutions. The topics they cover and the limitations they impose vary immensely. It will be quite a while before there is any true uniformity or consensus regarding the legal presumptions that control how parentage disputes should be determined.

[1] Liza Mundy, Everything Conceivable: How Assisted Reproduction is Changing Men, Women, and the World (New York: Knopf, 2007), p. 101 (quoting an adoption lawyer).

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