Abstract
INTRODUCTION
In recent years, the American legal system has increasingly recognized LGBT and queer parents, granting them enforceable parental rights and responsibilities towards their children. 1 This includes increased legal recognition of queer parents who are not biologically related to their children. But despite great strides forward in LGBT civil rights law, not all queer parents are created equal. Queer parents who are not married to their partners, parents in couples where neither partner physically gave birth to their children, and polyamorous parents who choose to raise children with two or more other people, all face greater difficulties in establishing legal parenthood—and their legal rights vary widely from state to state. 2 At the same time, the rights of queer parents sometimes come into conflict with the rights of their children—particularly in families formed via assisted reproductive technology (“ART”).
Queer parents and their children have been crucial to the success of the LGBT civil rights movement. Many of the foundational Supreme Court cases that articulate constitutional rights for same-sex couples make reference to the children of such couples reflecting an increased social awareness that queer parents have already existed for a long time, perhaps living side-by-side with straight families and sending their children to the same schools. Indeed, in both Windsor and Obergefell, Justice Anthony Kennedy explicitly expressed concern for these children and reasoned that gay marriage would help protect the children of same-sex couples from feeling that they were somehow less than their peers in the eyes of the law because of their parents' identity. 3
But although the Supreme Court has moved to affirm and protect (some) LGBT parents' identities, significant gaps remain with respect to both the rights of LGBT parents and the rights of their children. Families with two or more same-sex parents are vulnerable not just because of the parents' sexual orientation, but also because in many situations, a non-biological parent-child relationship generally enjoys fewer legal protections than a biological parent-child relationship. Families created via adoption (where children are biologically related to neither parent), as well as families created via ART (where children might be related to one parent but not the other) deserve to be on equal footing with so-called “traditional” families. Thus, the rights and obligations of adoptive queer parents must be respected—and enforced—to the same extent as those of biological parents. Unfortunately, when courts take a “best interests of the child” approach to queer family law, queer parents sometimes are treated differently.
At the same time, the needs of queer parents do not negate the very real psychological needs of their donor-conceived children, many of whom seek out relationships with their biological relatives once they reach adulthood. Nor do queer parents' needs negate the medical and ethical concerns raised by donor anonymity. 4 Children conceived via ART have also sought out their genetic relatives (including genetic half-siblings from the same donor) and formed meaningful, familial relationships with them. Rather than frustrating individuals' attempts to get to know their genetic relatives, the law should reflect—and to as great an extent as possible, enable—this reality. Thus, in this Note, I argue that, just as the law has begun to evolve to respect and preserve the family relationships of LGBT adults, it needs to recognize that our children have compatible, equally compelling rights to self-determination and access to information that would allow them to pursue relationships with their missing genetic relatives, should they choose to do so.
Part One of my Note explores the recent history of the LGBT rights movement. First, I explore the ways in which children of queer parents were folded into arguments for and against LGBT rights. I also explore the current state of queer parentage law, particularly those areas in which some queer parents remain unequal—either to their married queer counterparts, or to straight parents more generally. Part One ends with a brief summary of relevant new developments in the 2017 Uniform Parentage Act, which has been adopted in whole or in part by a number of states.
Part Two jumps back in time to explore the history of parentage in American law, with an emphasis on the ways that even “traditional” parentage has sometimes eschewed biological ties in favor of legal fictions that benefited patriarchal, heteronormative values. I look at the history of adoption, and the ways in which adoptive families have evolved both culturally and legally, often in response to advocacy by adult adoptees. Next, I examine the ways in which ART has facilitated the creation of families that combine both adoptive and biological ties, and the ways in which ART families have both changed and replicated old patterns.
Part Three focuses on the experience of children in “nontraditional” families, particularly children who were conceived via ART, and articulates a legal framework from which to think about children's rights. It also confronts the current legal issues that prevent children from accessing information about their genetic relatives, including a lack of regulation of fertility clinics and sperm banks, the reality that many nontraditional parents form their families via private contracts, rather than via official channels, and the legal safeguards that envision parenthood as a zero-sum game that gives full rights and responsibilities to legal parents, while leaving non-legal parents out in the cold.
Part Four concludes by returning to queer parents in particular. Is there a way to legally protect the rights of queer parents while still providing for the unique needs of donor-conceived children? And if regulation is the answer, is there a way to legally regulate fertility clinics in a way that won't result in the abrogation of parental rights? I propose that the best solution is careful, gender-neutral regulation that codifies rights and responsibilities for all non-biological parents, in combination with stricter regulation of fertility clinics that requires them to keep accurate records about donors' identities and medical histories. I also suggest that advocacy and litigation, perhaps driven by donor-conceived children and their families, might be a necessary part of the solution.
PART I: BUT WHAT ABOUT THE CHILDREN? THE QUEST FOR LGBT EQUALITY AND THE HETERONORMATIVE BARGAINS WE MADE ALONG THE WAY
I begin by setting the scene. From Romer v. Evans in 1996 to Pavan v. Smith in 2017, the last quarter-century has witnessed a sea change in LGBT civil rights. 5 Many of the Supreme Court's LGBT civil rights decisions directly touch on LGBT individuals' rights to form families. Queer parents have been raising children together since long before the law recognized their right to do so, and the existence of queer parents was essential to many of the arguments that were advanced by LGBT civil rights activists, both in and out of the courts. 6
Yet despite great strides forward, legal protections for queer families and their children are still inconsistent and uncertain. In this section, I lay out the current state of queer parentage law and emphasize the importance of state legislatures, rather than state courts, to fill in the remaining gaps in equality faced by queer parents across the country. I focus in particular on the recent 2017 update of the Uniform Parentage Act, which proposes several reforms that would benefit LGBT parents generally, and LGBT parents with donor-conceived children in particular. 7 To date, California, Vermont, and Washington have already enacted the newest version of the Uniform Parentage Act, and Pennsylvania, Connecticut, and Rhode Island have bills pending in state legislatures. 8
A Note on Terminology
“Language is a map but … the map is not the territory.” 9 Both the LGBT community and the world of donor-conceived children abound with confusion about definitions, labels, and identity. Naomi Cahn has noted that in the donor world, “language distorts and misrepresents actual practices.” 10 As Cahn explains, the world of biological donors “is characterized by a vocabulary that serves as a cultural clue (and cue) to our interpretation and understanding of these new families. The distinct linguistic choices show just what is at stake, and the syntax reflects broader questions about the donor world.” 11 For instance, language such as “donor” may serve to mask the transactional nature of ART (genetic material is usually sold, not donated), and “individuals who share genetic material” may or may not consider themselves “half-siblings.” 12 Language and terminology can even influence how individuals who are in donor-created families see themselves and relate to one another. 13
Just as language about the donor world can implicitly lead a reader down one interpretive path or another, so too can language about the LGBT community. The LGBT umbrella covers many identities, and there is a great deal of community discourse about what we are supposed to call ourselves (and everyone else). 14 Throughout this Note, I use words and phrases such as “LGBT,” “queer,” “same-sex,” and “same-gender” somewhat interchangeably. I do so in part because terminology that describes the LGBT community has changed over time and is not consistently employed across the academic sources used in this Note. 15 When discussing laws that are gender-specific (for example, some parentage regimes that recognize two mothers sometimes do not similarly recognize two fathers), I use gender-specific language. 16 At other times, I use more neutral language to describe queer parents as a whole, while still recognizing that different subgroups within the LGBT umbrella have different legal rights and different legal needs. Except when directly quoting a source, I refrain from using the phrase “gays and lesbians” to refer to the LGBT community as a whole. Although both academia and case law sometimes frame queer parentage in terms of “gays and lesbians,” not all same-gender couples are necessarily gay or lesbian since same sex couples may include one or more bisexual or pansexual partner. 17
Additionally, academic discussions of “same-sex” parentage often elide the existence of non-binary and transgender individuals whose true gender may or may not align with their legal gender—and whose experience of family law and the legal system may thus be quite different from the experience of cisgender gay, lesbian, and bisexual individuals. 18 Although the unique experience of transgender parents goes beyond the scope of this Note, they should be presumed to be included when I speak generally about LGBT or queer families. When discussing areas of the law where a person's cisgender or transgender status makes a difference (such as laws that presume that certain body parts are possessed by mothers or fathers), I have made an effort to note how this applies to transgender as well as cisgender people. 19
Formation of Queer Families (Parent -Child Origin Stories )
Queer families (like straight families) are formed in a variety of ways, not all of which will be addressed in this Note. Advocates for the gay marriage movement strategically equated gay marriage with child rearing. 20 In doing so, advocates for gay marriage promoted an image of white, cisgender couples raising children in the context of a marriage in order to argue for their inclusion. 21 The plaintiffs who were chosen for marriage-equality cases were “disproportionately raising either adopted children or children conceived through donor insemination,” even though the majority of children raised by same-sex couples, both then and now, are born in prior “heterosexual” relationships. 22 Furthermore, the discussion of childrearing in the context of marriage equality assumed the total absence of a biological parent (or parents) outside the same-sex couple in question, and did not make reference to the possibility that birth parents or genetic donors might still be in the picture. 23
The reality of queer parentage, of course, is not so simple. Both married and unmarried queer couples raise children together. Queer families can form when parents adopt a child to whom neither is biologically related; when one or both parents in a couple have a child from a previous relationship; and ART, when a gamete from one parent is used with a gamete from a donor. 24 Additionally, parents may have different rights depending on their marital status, their gender, and the vagaries of state law. 25 In all but one state, marriage creates the presumption that a child born to a birth mother is also the child of her husband. 26 Following the Supreme Court's 2017 decision in Pavan v. Smith, which held that the state cannot grant marital benefits to straight couples without also granting the same benefits to same-sex couples, some state courts have extended the marital presumption of parentage to include all spouses, not just husbands. 27 But many states do not include a presumption of parentage for same-sex couples who are not married, and the marital presumption does not extend to same-sex couples who consist of two men, even if they are married. 28 And although some state courts interpret gender-specific presumption of paternity statutes in light of Pavan, others have declined to do so. 29 Finally, although most states recognize only two legal parents, families formed by adoption and ART inherently involve additional adults who, while they may or may not have legal rights to the child, are involved at least to the extent of their donated genetic material.
Legal Issues for Queer Families
Some family law scholars have distinguished between parental identity and parental rights: “[t]he first-order question of who is a legal parent (parental recognition) precedes the second-order question of what authority the legal parent wields (parental rights).” 30 Without legal parenthood status for both adults who are raising the child, queer couples and their children lack basic protections afforded to straight families. When queer couples break up, the absence of a formal legal relationship can greatly complicate both custody battles and the enforcement of child support payments. 31
In cases where the non-biological parent is not afforded the presumption of parentage, they can gain legal parenthood via second-parent adoption. 32 By formally going through the legal adoption process, the same-sex partner of a biological mother can gain parental status. 33 However, there are significant financial barriers that bar many families from exercising this option, as well as potential equal protection concerns. 34 When discussing the importance of the right for same-sex couples to marry, the Supreme Court has expressed concern about the possible “humiliation” or “dignitary harm” a child might feel at learning their family must be treated differently than a family with two married heterosexual parents, and it is hard to see how the same dignitary harm would not also extend to the children of unmarried queer parents who do not enjoy the same rights as unmarried straight parents. 35 Yet despite this, not all states allow for second-parent adoption, and many states have no statutes regulating assisted conception, regardless of the gender of the parent involved. 36
Even when it is permitted by the state, second-parent adoption is impossible in some contexts. 37 A child cannot be adopted until it is born. Thus, if the non-biological intended parent dies before the child is born or if the couple breaks up before the child is born, the adoption may not go through, possibly leading to issues with inheritance (in the case of the deceased intended parent) or issues with accessing child support (if the non-biological parent refuses to pay child support for a child with whom they have no legal relationship, and thus no legal duty). 38
For example, in State ex rel. D.R.M., a same-sex female couple decided to have children together via ART, but their relationship broke down shortly after the biological mother became pregnant. 39 Although the couple had lived together and shared a joint bank account before they broke up, the biological mother failed in her attempt to sue for child support—even though both women had intended to become parents when the biological mother became pregnant. 40 Instead, the Court of Appeals of Washington held that, because the biological mother's former partner had “no custodial relationship with the child,” she could not be held financially responsible—despite her intentions at the time the child was conceived and despite the child and biological mother's demonstrated financial need. 41
The court found no violation of equal protection, claiming it would have reached the same outcome had the biological mother's former partner been a man. 42 Under the relevant statutory laws in Washington at the time, “a male not married to [the biological mother] and not the biological father” could only be a presumptive parent if he “receive[d] the child into his … home and openly h[eld] the child out as his,” or if he voluntarily acknowledged paternity of the child. 43 Since it is impossible to receive a child into one's home until it is born, this meant, for the court, that the biological mother's claim would have failed no matter her sexuality and no matter the gender of her partner. But the court ignored the reality that had the biological mother's former partner been a (cisgender) man, the couple might not have needed to avail themselves of ART in the first place. Had the court instead compared the lesbian couple to an unmarried heterosexual couple who were both the biological parents of a child, it would almost certainly have held the ex-partner liable for child support. 44
Where a non-biological parent holds themselves out as the parent of a child, some states allow for de facto parentage, or parentage by estoppel. 45 However, this also provides limited levels of protection, since this option is typically only available when a couple breaks up—and same-sex ex-partners aren't always able to persuade courts that their relationships with their children are what they say they are. In A.H. v. M.P., the Supreme Judicial Court of Massachusetts found that a lesbian mother who had been with her partner for eight years did not have a significant enough emotional relationship with their eighteen-month-old child to count as his legal mother and was thus not entitled to custody. She was the breadwinner for her family and had provided financially for the child. 46
Because the law regarding parentage of donor-conceived children is inconsistent and confusing, particularly as applied to queer parents, there is an ever-present danger of the “wrong” adult gaining parentage rights. In 2009, a New Jersey court awarded legal parenthood to the gestational surrogate, instead of to the intended non-biological father of twin girls born to a same-sex male couple. 47 The couple, D.R. and S.H., wanted their future child to be related to both fathers, so they entered into an agreement with D.R.'s sister. The sister, A.G.R., agreed to be the couple's surrogate. 48 S.H. provided the sperm, and the egg came from an anonymous woman donor; A.G.R. was only the gestational surrogate, and would not be genetically linked to the child “in the strict sense of that term.” 49 In addition to their verbal agreement, all three parties signed multiple written contracts that stipulated A.G.R. would consent to the child's legal adoption by her brother after she carried it to term. 50
A.G.R. gave birth to twin girls. But sometime after the birth, she changed her mind and sued for parental rights. Recognizing that other jurisdictions, like California, had already begun to hold that “’gestational carriers' do not have parental rights … when confronted by others claiming to have rights over the children born to the gestational carrier,” the court instead awarded parental rights to A.G.R. 51 At the time the case was decided, New Jersey's Parentage Act made no explicit provision for gestational surrogates; and under In re Baby M., surrogacy agreements with genetic surrogates were not enforceable. 52 In an interesting twist, the court even acknowledged that as a gestational surrogate, A.G.R. had no genetic link to her child. 53 But according to the court, the “public policy considerations” implicated by the case were “unrelated to a strict genetic connection.” 54 At the same time that the court seemed to honor a non-genetic link between a surrogate mother and the children she bore, it took no consideration at all of the emotional connection between D.R. and his infant daughters. The court did note, perfunctorily, that “S.H. is the legal father of the twins.” 55
A.G.R. v. D.R.H. illustrates the dangers queer parents face when operating in states that do not have a statutory scheme that explicitly clarifies the respective rights of parents, donors, and surrogates. 56 Judicial discretion enables courts to side with some “genetic” parents, but not others. The case also illustrates the dangers of using a “known” donor or surrogate: although there are issues with anonymity that I will explore in more detail later in this Note, anonymity can potentially help ensure that the parental right to exclude other adults from literally taking one's children away is protected. Alternately, perhaps A.G.R. v. D.R.H. illustrates a different need: one for legal recognition that sometimes, more than two parents really do have equal rights and responsibilities, and that perhaps permitting three legal parents in some situations would be appropriate.
Intent /Consent : A Non -Biological Way to Establish Parentage
Courts typically use “one of five different tests to determine legal parentage of children conceived via ART: (1) applying a state statute; (2) relying on public policy; (3) determining what was in the best interests of the child; (4) awarding parentage to the genetic parents; and (5) awarding parentage to the adults that, at the time of conception, intended to raise the child.” 57 First introduced by Professor Marjorie Shultz in 1990 “as a means to determine parentage of children conceived via ART,” 58 the intent test is simple: “when a child is conceived via ART, the person(s) that intended to bring the child into the world and raise the child should be the child's legal parent(s).” 59 The “intent test” was first applied in California, in Johnson v. Calvert—the same case that the New Jersey court in A.G.R. declined to extend. 60
Further developing this idea of intent rather than action, other family law scholars have proposed that, rather than rely on second-parent adoption or a contact or action-based rule (which ended poorly for the biological mother in State ex rel. D.R.M.), courts should adopt a “consent = legal parent” rule. 61 Courtney G. Joslin has proposed that, rather than waiting until sometime after the birth of a child, parentage in the context of ART should be determined at a much earlier stage. 62 As Joslin points out, the “convergence of procreative activity and intent to parent” is much stronger when a child is conceived via ART than when a child is conceived via intentional sexual intercourse, because engaging in sexual intercourse “does not necessarily mean that both parties intended to parent any potentially resulting child.” 63 Furthermore, “where artificial or assisted reproductive techniques are used, the need to reduce uncertainty, to project decisions into the future, and to protect reciprocal expectations and reliance is especially significant.” 64
Joslin's proposed consent = legal parent rule has three components. First, consent of both intended parents would be required; both the gestational intended parent and the non-biological intended parent would have to have agreed at some point prior to conception that the child would be jointly theirs. 65 Second, the rule establishing legal parentage “based on consent to assisted reproduction with the intent to parent the resulting child” would apply to everyone who engaged in that conduct—whether or not the non-biologically related adult was the intimate partner of the gestational parent. 66 Third, while acknowledging that although the states that do have statutes governing parentage of children born through ART require written consent from the “nonbirth partner,” Joslin suggests that, while she would encourage both parties to enter into written consent and that written consent should create “an irrebuttable presumption of parentage where there is proof of written consent,” she does not believe that a purely contractual system would be viable. 67 As Joslin explains, “a child should not be denied financial and emotional protections just because the adults failed to comply with some legal formality.” 68 Instead, “consent in fact” should be enough: if it can be established through evidence that the nonbirth partner consented to the insemination at the time of the insemination, the nonbirth partner should be considered a legal parent with or without written consent. 69 Some courts have implemented consent-based reasoning into their parentage decisions. 70
The Uniform Parentage Act of 2017
Some states have begun to adopt the Uniform Parentage Act of 2017 (“UPA (2017)”), which draws on recent Supreme Court decisions regarding same-sex marriage and additionally incorporates aspects of both a “functional” and an “intentional” approach to parenthood. 71 The UPA, first promulgated in 1973, is the creation of the Uniform Law Commission, whose stated goals are to “provide[] states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” 72 The UPA (2017) incorporates a gender-neutral marital presumption, applies Joslin's consent = legal parent rule, and adapts the concept of “voluntary acknowledgement of parentage” as a tool not just for unmarried biological fathers to acknowledge paternity, but also for non-biological “intended” parents to legally establish parentage. 73 Additionally, the UPA (2017) incorporates recent developments in some states, such as Maine and California, to allow for an intentional parentage regime that recognizes the possibility of parental rights for more than two parents. 74 The prospect of legal recognition for two or more legal parents gives queer parents more options: either to raise kids in the context of a stable, polyamorous relationship or to use a “known” donor whom they might want involved in their child's life. 75
Article 7 and Article 9 of the UPA (2017) are specific to donor-conceived children and their families, and they contain two important new additions. 76 First, Article 7 (“Assisted Reproduction”) addresses what should happen if an intended (non-biological) parent withdraws their consent to parent a child. Under Section 703, “[a]n individual who consents … to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child.” 77 And under Section 707, an individual may withdraw their consent to parent—but only if they do so “before a transfer [of genetic material] that results in a pregnancy.” 78 This provides crucial protection to the birth parent, who may have relied on a partner's promise to co-parent. Consent to parent must be in writing, unless either partner “proves by clear-and-convincing evidence the existence of an express agreement entered into before conception that the individual and the woman intended they both would be parents of the child,” or if both parents lived together for the first two years of the child's life and “both openly held out the child as the [non-gestational parent's] child.” 79 A further exception is made if the non-biological parent dies or is rendered incapacitated before the child is two years old; in that case, the surviving birth parent would simply need to prove, by clear-and-convincing evidence, as above, “that the woman and the individual intended to reside together in the same household with the child and both intended the individual would openly hold out the child as the individual's child, but the individual was prevented from carrying out that intent by death or incapacity.” 80
Article 9 (“Information About Donor”) is a “new addition” to the UPA and was not included in prior versions. 81 Article 9 requires state-licensed gamete banks and fertility clinics to collect and preserve identifying information—as well as medical information—about genetic donors. This requirement is not retroactive, which helps preserve anonymity for individuals who donated their gametes prior to any state statute incorporating Article 9 to come into effect. 82 Under UPA (2017) § 904, licensed gamete banks and fertility clinics must obtain each donor's informed consent, in part by informing the donor that they have two options as regards identity disclosure. 83 A genetic donor may agree, in writing, to allow the fertility bank to “disclose the donor's identity to a child conceived by assisted reproduction with the donor's gametes on request once the child attains 18 years of age.” 84 Even if the genetic donor does not agree, fertility clinics are required to “make a good-faith effort to provide … access to nonidentifying medical history of the donor” upon request by the donor-conceived or their parent or guardian. 85 If a genetic donor chooses to consent to disclosure of their identity, they cannot revoke consent after the fact “because the recipients of identity disclosure gametes often chose those gametes at least in part because the donor had agreed to identity disclosure.” 86 On the other hand, if a genetic donor initially did not consent to disclosure of their identity, they can change their mind at any point. 87 In this scheme, rights and disclosures flow in one direction only: “a donor is not a parent of a child conceived by assisted reproduction.” 88 Thus, the UPA (2017) grants rights to donor-conceived families to access at least some info about the genetic donor; and it explicitly declines to grant any rights (except privacy) to genetic donors.
PART II: THE RIGHT TO EXCLUDE: PARENTAGE, PROPERTY, AND PRESUMPTION
Both LGBT civil rights activists and their opponents have incorporated children into their arguments for and against full civil equality for the LGBT community. As discussed above, LGBT activists argued that without legal protection, their children suffered dignitary harm. 89 In contrast, anti-LGBT rights activists argued that even secular, state-sanctioned marriage was an institution that existed to facilitate the creation of biological children, born into a marriage of one man and one woman. 90 But American legal parental rights have never been located purely in biological truth—and in fact, the Supreme Court has sometimes elevated other concerns over pure biological connections.
The Supreme Court has recognized the rights of legal parents to control access to their children—even when the people seeking access were biological relatives, and even when one of the legal parents was demonstrably not a biological parent. 91 In Michael H. v. Gerard D., the biological father of a child sued for visitation rights. The child's mother had briefly left her husband; her affair with another man resulted in the birth of a daughter. But she returned to her marriage, and her husband held the daughter out as his. In a plurality opinion, Justice Scalia wrote, “California law, like nature itself, makes no provision for dual fatherhood.” 92 By the Court's logic, a child could not have two fathers—and the rights of the mother's husband trumped the rights of the child's biological father because of the marital presumption. Marriage mattered more than biology, and “the child emerged with only one legal mother and father.” 93 In determining custody, the court did not consider the strength of the relationship between the child and either of her two fathers—although since the nonbiological father was raising her, perhaps this might have achieved the same result. 94 Even though the child's court-appointed guardian ad litem argued that she should be allowed to maintain a relationship with both fathers, the court never looked at the question through the child's eyes as an independent human being who might have needs that differed from the needs of either of her fathers. Instead, the court considered the biological father's right (which it denied) and his daughter's interest in a relationship with him “as two sides of the same coin.” 95
Historically speaking, “marriage guaranteed parental rights to the husband, and his paternity was virtually irrebuttable.” 96 But over the course of the 20th and 21st centuries, the law has shifted to reflect modern realities. The 21st century marital presumption is now rebuttable in many states (including California, which changed its statute following the decision in Michael H.)—a reflection that biological fact can matter to both courts and legislatures. Deference to—or perhaps protection of—the traditional marital family is still preserved in other ways. The first UPA, provided for a presumption of fatherhood by an artificially inseminated woman's husband—as well as clarifying that the sperm donor “had no legal rights.” 97 And thanks to the rise of ART in straight families, most states have extended the presumption of parentage to husbands whose wives give birth to children conceived with donor sperm. 98
When the presumption of parentage is not available, non-biological children may still be legally incorporated into a family via adoption. 99 Adoption has existed since antiquity in various forms. 100 Over time, adoption shifted from being “a tool to control succession … used by families to control and protect wealth” to being “primarily focused on parenthood … for couples who could not physically have children.” 101 During the 19th century, American adoption began to evolve into a choice that “married, middle class and upper middle class couples [could make] to expand their families”—yet at the exact same time, the law routinely refused to recognize the parental rights of enslaved African Americans over their own biological children. 102 Well into the 20th century, in accordance with federal and state policy, Native American children were placed in boarding schools and adopted by white families as part of an effort to forcibly assimilate and erase Native culture. 103
Over the course of two and half centuries, American adoption has transformed from an institution that existed primarily as a tool for preserving white family wealth and inheritance, to an institution that ostensibly prioritizes the best interest of a child and helps form nurturing family relationships. 104 Historically, parentage was a zero-sum game that was concerned primarily with the rights of a patriarch to control his wife, children, and other property. 105 Several civil rights movements later, much has changed in the way the law conceptualizes family. In particular, over the course of the 20th century, biological parents gained greater rights and responsibilities with respect to their non-marital children. Yet the echo of family-as-property remains in the power legal parents still have to exclude other adults from access to their children. 106 Mid-century adoption law excluded biological parents from access to their birth children and enabled adoptive, heterosexual married parents to pretend that their families were just like other families—that is, that their children were biologically related to both parents. 107
Several generations of grown up adoptees have helped shift the landscape of adoptive families away from secrecy and towards a far greater level of openness about adopted children's origins. Adult adoptees advocated for and normalized a far greater level of contact between adopted children and their birth parents than existed in the mid-20th century. 108 Despite this, the newer world of children born via ART initially mimicked the secrecy of mid-century adoption. 109 Although federal law requires clinics to report accurate data about donor gametes and the number of births resulting from donor eggs, there are no mandated long-term follow ups for children born via ART, and no statutes regulate contact between genetic donors, intentional parents, and the resulting children. 110 In part due to stigma associate with infertility, ART clinics and doctors once recommended that heterosexual parents not inform their children that they had a genetic donor. 111 However, stigma has lessened over the decades, and the American Society for Reproductive Medicine now recommends that parents tell their children about their genetic origins. 112 In one study from 2010, two-thirds of donor-conceived children who participated in the study said they felt they should have the right to know their donor's identities, and almost two-thirds said they believed they should have the chance to develop some sort of relationship with their genetic donor, as well as with any “half-siblings” who might share their donor's genetic material. 113
Adoptive families and families created through ART obviously differ in meaningful ways. However, there are also meaningful similarities. Adoption procedures, which formerly involved sealed records, altered birth certificates, and no contact with birth parents, increasingly allow for “open adoption” and “adoption with contact,” with a variety of options available for families depending on the level of contact they desire. 114 Families created through ART have also increasingly availed themselves of resources such as the Donor Sibling Registry, which allows families with donor-conceived children to voluntarily share information and find one another. 115 There is a growing consensus that secrecy is bad for the child and some have advocated for a shift toward “community or shared parenting.” 116
Historically, many LGBT families were excluded from adopting, and “class, gender, and sexual orientation [still] intersect to reduce the likelihood of successful private adoption.” 117 The lack of regulation of ART clinics means that access for LGBT individuals is piecemeal and sometimes fraught with unexpected complications. 118 Financial and medical barriers—combined with the biological reality that adoption and ART are one of several options for straight couples, whereas almost all queer couples raising children have at least one parent who isn't genetically related to the child—continue to make ART access a matter of pressing importance for LGBT rights as a whole. 119
Families with parents of two different genders who can both “pass” as biological parents are meaningfully different from many queer families, where it is immediately apparent that both parents cannot be biologically related to their child. Straight (or straight-passing) couples who have a child who looks like them don't suffer the same “dignitary harm” as visibly queer couples do; and, as discussed earlier in this Note, they don't experience the same double-standard treatment from some family court judges that queer couples do. Furthermore, same-gender parents inherently cannot partake of the privilege family law has traditionally afforded to white straight couples whose children were adopted (either by one or both parents). The law has traditionally facilitated the efforts of straight parents who—for whatever reason—sought to maintain the illusion that their families were perfectly free of the social stigma of infertility, but queer families, simply by existing, are visibly outside the norm. 120
Perhaps because of this reality, far more donor-conceived children of LGBT parents are told about their origins at an early age than are the donor-conceived children of straight parents; they also tend to be more curious about their genetic parents. In one study from 2011, 80% of children in single- and dual-parent lesbian families reported “that they had known throughout their lives” that they were donor-conceived. 121 And “twice as many LGBT offspring as compared to heterosexual offspring expressed an interest [in learning about their donor] by age eleven; by age eighteen, two-thirds of heterosexual offspring, compared to 95% of LGBT offspring expressed this interest.” 122
Despite the demonstrated needs of donor-conceived children and their families, the United States barely regulates ART. 123 But some countries offer a different model. England tracks donor identities and limits donors from contributing gametes to more than ten different families. 124 Instead of limiting families, Germany caps the number of total children (fifteen) that can be conceived with donor gametes. 125 Austria, Finland, the Netherlands, Norway, Sweden, and Switzerland also prohibit donor anonymity. 126
The text of the Convention on the Rights of the Child—which the United States signed in 1995 but has not ratified—also suggests a different option. Article 7 recognizes, “as far as possible,” a child's “right to know … [their] parents.” 127 And Article 8 recognizes, “as far as possible,” a child's “right … to preserve [their] identity.” 128 One scholar has observed that although the drafters of the Convention may not have intended these sections to apply to donor-conceived individuals, “the Committee on the Rights of the Child has repeatedly interpreted Articles 7 and 8 to extend identity rights to both adoptees and donor-conceived individuals.” 129 According to the Implementation Handbook on the Rights of the Child, “a reasonable assumption is that, as far as the child's right to know his or her parents is concerned, the definition of ‘parents’ includes genetic parents.” 130 Over the years, the Committee has noted “possible contradiction” between Article 7 and national legislation that fails to “recognize the right of the donor-conceived person to access information about the donor.” 131
Finally, an unsuccessful Canadian case represents a potential model for donor-conceived individuals who seek redress through the courts, rather than simply through lobbying for regulation. In 2010, the British Columbia Supreme Court ruled that British Columbia “should no longer allow anonymous donation of gametes” after a donor-conceived child, Olivia Pratten, sued in 2010 to discover the identity of her genetic donor. 132 Pratten argued that she had been discriminated against, in part, because British Columbia's adoption laws “allow[ed] adopted individuals to obtain information about their genetic origins, while donor-conceived offspring did not have access to the same information.” 133 According to Pratten, the law's failure to require that medical records pertaining to her conception be preserved “depriv[ed] her of basic personal information … necessary for her physical and psychological health.” 134 Pratten's case was overturned on appeal, but her lawsuit might be a potential model for other donor-conceived children in other jurisdictions.
The Dangers of Genetic Essentialism
This Note advocates wholeheartedly for openness. Yet any discussion of ART, adoption, and queer families—all of which inherently subvert traditional ideas of biological destiny—would be incomplete without noting that there may be a danger of “overemphasizing one's genetic identity at the expense of the functional family, or ‘genetic essentialism,’ the concept that a person is the sum of [their] genes.” 135 Although “biological connection has, for better and for worse, served as a tool to sort others and ourselves,” we should not accept the importance of biological ties uncritically. 136 Many parents—both queer and straight—want to have a genetic or a biological tie to their children. 137 But from a certain point of view, it may be that biological connection matters to us simply because society tells us that it matters. “[N]otions of biological affiliation help define who we are and where we fit in society … because as political, legal, and social matters, their construction helps define family, class, gender, and race.” 138
The “existential sense of identity” 139 that comes from knowing the details of one's ancestry can hold deep meaning for anyone, not just donor-conceived children; but biology is not everything for straight or queer families. Some queer family law scholars have explicitly cautioned against genetic essentialism, also known as “biogeneticism,” or the “deep-seated faith in the priority and superiority of biogenetic forms of relationship and identity.” 140 Indeed, the history of the LGBT community has long been one of “chosen families” that eschew traditional notions of a married, two-parent nuclear family raising children. 141 By the late 1970s (if not earlier), queer communities were already making an “explicit distinction between ‘chosen’ family, identified as gay, and ‘blood family,’ identified as straight.” 142 These chosen families were “conceived in opposition to biogenetic givens … [and] quite consciously incorporated symbolic demonstrations of love, shared history, material or emotional assistance, and other signs of enduring solidarity.” 143 Traditional, non-biological methods of forming families, such as adoption and fostering, were “easily conceptualized in terms of the values of the LGBT community, which stress the affective and practical, rather than formal and biological, markers of kinship.” 144 Queer families of choice, including adoptive families, reflect “a rich history of queer resistance, both personal and political, to the ideology of biogenetic kinship.” 145
Given all this, advocacy that recognizes the importance of blood ties should not be mistaken as “glorif[ying]” biology at the expense of other kinds of family. 146 Instead, advocates for LGBT families must “do the difficult cultural work of unsettling the discourses that construct [non-biological] families as the inferior version of ‘real’ families that are united by blood”—while simultaneously acknowledging that genetic relationships between donors and their offspring can and do matter. 147
PART III: IS LIBERTY JUST FOR ADULTS?
Children conceived via ART who have biological, non-legal parents are going to continue to grow up and want to meet—or know details about—their parents. 148 In addition to having the right to choose to pursue relationships with their genetic relatives (at the very least, once they are adults), donor-conceived children and their parents have an obvious need for medical and genetic data. Many fertility clinics promise genetic donors privacy, and make their clients sign contracts agreeing not to try to find their children's biological relatives. 149 But private contracts of this nature should not trump the rights of children to know their families. Finally, the increasing popularity and scientific accuracy of genetic testing and sites like 23andMe.com create both legal and ethical concerns that will probably have to be litigated at some point. 150 Contractual solutions between fertility clinics, individual donors, and parents may no longer be fully enforceable, now that discovering genetic relatives can be as easy as typing information from a mail-order DNA kit into the internet. 151
Although courts pay lip service to the best interests of a child when making decisions about family formation, “courts regularly rationalize parents' rights on the interest of parents themselves. This is clear enough from the long succession of court decisions holding that parents' constitutional rights take precedence over the best interest of a child.” 152 Multiple scholars have articulated a concern that, while parental rights are important, they should not always trump the rights of children. 153 Additionally, some have suggested that the development of robust civil rights based on liberty or autonomy interests for adults might provide a blueprint for granting greater recognition to the autonomy of children. 154
Exploring a framework for children's rights in the context of queer families is particularly important because the rights of LGBT parents sometimes come into conflict with the rights of their children. The right to parent, without fear that a court might grant custody or visitation rights to a third party genetic donor or surrogate, can be protected only by ensuring that LGBT parents maintain legal control of their children. This means protecting LGBT parents from the interference of other adults who might have a biological claim. Yet outside this legal framework, children have psychological and medical needs that are not well served by donor anonymity. 155 Additionally, children have at least a limited right to autonomy and self-determination, either (as some have argued) “as persons with the capacity to play active roles in shaping their present lives,” 156 or simply in view of children's “anticipatory autonomy rights … to have future options kept open until [they are] … fully formed self-determining adult[s] capable of deciding” what they want for themselves. 157
In the context of donor-conceived families, this might be framed as the difference between locating a right for children to grow up knowing their biological donors versus a right to have identifying information about their donors stored for them until they come of age in anticipation that donor-conceived children will grow up into autonomous donor-conceived adults capable of choosing whether or not to learn more about their origins. Alternatively, we might frame the right to contact with non-legal family as something that the state should facilitate by largely staying out of—by securing strong enough rights to the legal parents that they are not afraid to voluntarily stay in contact with donors and other genetic relatives of their children. 158 A.G.R. v. D.R.H., the New Jersey case in which the court awarded parental rights to the gestational surrogate (and aunt), instead of to the gay father's husband, illustrates that having a baby via a known donor or surrogate can result in potentially traumatic consequences for all parties involved. 159 Yet other families have successfully and intentionally incorporated known donors into their children's lives, including some who sign “coparenting agreement[s]” and even cohabitate with their donor. 160
The very existence of queer families, by “expanding” the bounds of what a family can be, might be an opportunity for activists to likewise expand children's rights in donor-conceived and adoptive families, queer and straight. 161 Although the heteronormativity of the current legal framework for parental rights risks obscuring this, the variation that exists among queer families raises “the possibility … to recognize the creative family structures in which children can thrive.” 162
PART IV: WHERE DO WE GO FROM HERE?
Currently, neither queer parents nor their children have adequate legal protections. Safeguards for parents might necessitate balancing their rights against those of their children, and vice versa. If queer parents can be put on more equal footing with straight parents, whether by state legislatures implementing the UPA or by state courts voluntarily extending existing statutes to cover queer parents, it would shore up traditional protections, including the right to parent exclusively. Yet this might mean less access for children to their genetic relatives. On the other hand, if identity disclosure for genetic donors were mandated without any other changes in parentage law, that could mean that an increasing number of queer parents—particularly those who have not yet taken the correct steps to legalize their relationship with their children—could have their parental rights challenged by genetic donors with no other connection to their children. If disclosure were always legally required—in effect, forcing LGBT parents to use a known donor when they conceive their child—but courts remained free to discriminate against LGBT parents under the cover of a “best interests of the child” framework, some courts might be empowered to award disputed parentage to a genetic donor, rather than to the intended parents.
I propose that the best solution is limited regulation for both issues. First, state legislatures should implement the gender-neutral UPA (2017) provisions, simplifying the process for prospective (and current) queer parents and leaving less room for families to be disrupted by human error. This might include ratifying the more than two parents option left open by UPA (2017) § 613, Alternative B, which could provide a framework for parents who wish to voluntarily raise their children with more than one other adult to do so. States legislatures should, at a minimum, adopt the donor information scheme proposed by the UPA (2017). Imposing even an anonymized requirement for fertility banks to provide medical information to donor-conceived children and their families is a step in the right direction for those states who have already done so. Even better would be to take away the voluntary aspect entirely. The realities of the “baby market” are that some parents who truly wish to not know the identity of their genetic donor will likely leave their own jurisdictions to get what they want; it's also likely that some potential donors will choose not to donate their genetic material if fertility clinics and/or genetic banks can't guarantee their privacy. But in the age of 23andMe and widespread genetic testing, this guarantee of privacy has gone out the window anyway. A statutory requirement that all fertility banks disclose donor identities to donor-conceived children, perhaps upon those children coming of age, would reflect this new reality—putting donors on notice and, importantly, relieving donor-conceived children and their families of the burden of seeking a child's genetic relatives on their own. Requiring identity disclosure, while making clear in the statute that donors have neither legal rights nor legal responsibilities to their genetic offspring, would help put power back in the hands of the people most deeply affected by the current lack of legal consistency—donor-conceived children and their legal families.
Additionally, the mere existence of consistent regulation would send a cultural message. In the same way that much of the stigma associated with the queer community began to dissipate following legal recognition of LGBT rights, perhaps the stigma associated with donor conception would also lessen if donor families had greater legal recognition. Websites like 23andme.com, which enable families of all kinds to find unexpected connections, may do even more to speed up this process. Donor-conceived families forming voluntary relationships with their donors can add themselves to the Donor Sibling Registry. They can also look to modern adoption for models of openness.
Finally, parentage law's current inconsistencies reinforce harmful stereotypes that impact all parents—men, women, and non-binary individuals—by overemphasizing gender and marital status. 163 Although some courts have been willing to read rights for all genders into gender-specific statutes, many have declined to do so. Gender-neutral legislation would help lessen these stereotypes, facilitating a broader cultural shift that emphasizes parental choice and intent, rather than gender. Separating marriage from parental rights and responsibilities would also help members of the LGBT community who have traditionally been afforded less protection by the state. Limited, “well-conceived” legislation would allow families to live their lives free of inappropriate intervention, while reserving for donor-conceived children the power to make autonomous choices about their identities, lives, and futures.
Footnotes
1
Members of the LGBT community use a diversity of terms to describe themselves, and this Note uses phrases like “LGBT,” “queer,” “same-sex” and “same-gender” somewhat interchangeably. See infra notes 7-17 and accompanying text.
2
See generally, Douglas NeJaime, The Nature of Parenthood, 126 Y
3
Obergefell v. Hodges, 135 S. Ct. 2584, 2590 (2015) (“Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples.”); United States v. Windsor, 570 U.S. 744, 772 (2013) (describing how the Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples” by “mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives”). Following Windsor, federal appellate courts echoed Kennedy's concern about the humiliation of children whose same-sex parents were excluded in states that banned same-sex marriage. See, e.g., Baskin v. Bogan, 766 F.3d 648, 659 (7th Cir. 2014).
4
See N
] (noting many sperm banks do not regulate how many times an individual donor can provide genetic samples).
5
Pavan v. Smith, 137 S. Ct. 2075 (2017); Romer v. Evans, 517 U.S. 620 (1996).
6
For a summary of various child-related arguments framed by LGBT rights activists, see Nancy D. Polikoff, Marriage as Blindspot: What Children with LGBT Parents Need Now, in A
7
See U
8
See Parentage Act, U] (last visited Feb. 7, 2020).
9
W
10
N
11
Id. at 7.
12
Id.
13
Id. at 9.
14
Lambda Legal, the oldest national legal organization for the LGBT community, goes so far as to provide a helpful glossary, defining several of the communities it serves. Glossary, L] (last visited Feb. 7, 2020).
15
See, e.g., Polikoff, supra note 6, at 129 (referring variously to “same-sex couples” and “gay and lesbian parents”); Annette R. Appell, Controlling for Kin: Ghosts in the Postmodern Family, 25 W
16
See Nature of Parenthood, supra note 2, at 2290-91 (discussing the marital presumption). The child born into a marriage may be presumed to be the child of both its biological mother and her spouse, but the same presumption does not apply in a marriage of two gay cisgender men. Additionally, I assume the marital presumption would also apply if the married parent giving birth to the child was a transgender man or a non-binary person, but I have not seen any sources that address this directly.
17
According to the Human Rights Campaign, bisexuals constitute “the single largest group within the LGBTQ community.” Bisexual FAQ, H] (last visited Mar. 24, 2019). Despite this, the word bisexual does not appear in any of the major Supreme Court cases that deal with LGBT rights except for Romer v. Evans and Lawrence v. Texas. Lawrence v. Texas, 539 U.S. 558, 574 (2003); Romer v. Evans, 517 U.S. 620, 624 (1996). In this Note, I use the phrase “heterosexual parents” only when I really do mean “straight parents.” But it may be worth acknowledging that in the eyes of the law—which is often hyper-focused on the binary gender of parents—a queer or bisexual couple sometimes looks like, and in some respects may even be treated like, a straight couple. This reality doesn't take away the nuances of the bisexual experience, which go beyond the scope of this Note.
18
The literal meaning of the phrase “same-sex” erases anyone who is non-binary. Gender is a spectrum, so even a relationship between two non-binary people is not necessarily a same-sex relationship. Likewise, a lesbian couple where both partners are transgender women would likely not be able to avail themselves of the marital parentage presumption, because neither partner is able to bear a child in the context of the marriage.
19
Courtney G. Joslin's use of “nonbirth parent” and “gestational parent” is helpful in distinguishing relevant roles without needing to gender anyone. See Courtney G. Joslin, Protecting Children: Marriage, Gender, and Assisted Reproductive Technology, 83 S. C
20
Polikoff, supra note 6, at 131-41.
21
Id. at 128; see also Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 570 U.S. 744 (2013).
22
In this context, the phrase “heterosexual relationship” may also encompass “different-gender relationship”—for example, a relationship between a man and a woman, one of whom might be queer. Polikoff, supra note 6, at 128-29. Additionally, “LGBT people of color are substantially more likely to be raising children than their White counterparts, and they are significantly more likely to be living in or close to poverty.” Id. at 128.
23
See generally Obergefell, 135 S. Ct. at 2584; Windsor, 570 U.S. at 744.
24
Same-sex female couples may also choose to conceive children via “reciprocal in vitro fertilization,” where the partner who does not provide genetic material carries the child—thus ensuring that both partners “will each have a biological connection to their child, [even though] only one member of the couple will have a genetic connection.” Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Y
25
See generally Nature of Parenthood, supra note 2.
26
Polikoff, supra note 6, at 130; Nature of Parenthood, supra note 2, at 2339.
27
Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Y
28
Nature of Parenthood, supra note 2, at 2291 (“Men in same-sex couples find themselves in the same position as women in different-sex couples. Neither can attain parentage by virtue of marriage to the biological father, and both struggle for parental recognition in the absence of a biological connection to the child.”).
29
Nurturing Parenthood, supra note 27, at 595.
30
Douglas NeJaime, The Constitution of Parenthood, 72 S
31
See, e.g., Russell v. Pasik, 178 So. 3d 55 (Fla. Dist. Ct. App. 2015). Not all straight families are created equal, either. Race, marital status, and economic status all factor heavily in the way families are helped or harmed by the state—with the burden falling disproportionately on low income queer parents of color.
32
Nature of Parenthood, supra note 2, at 2293.
33
Id. at 2293. Queer parentage scholarship often discusses this process in terms of birth mothers and their spouses; but this also applies when the parent giving birth is not a woman.
34
See generally Feinberg, supra note 24.
35
Polikoff, supra note 6, at 135-36.
36
Id. at 145.
37
Id. at 141-42.
38
Protecting Children, supra note 19, at 1214.
39
Id. at 1202-03 (citing State ex rel. D.R.M., 34 P.3d 887 (Wash. Ct. App. 2001)).
40
Id. at 1203.
41
D.R.M., 34 P.3d at 892.
42
Id. (“[T]he application of provisions of the UPA to the facts of this case, changing only Wood's gender, would yield the same result.”).
43
Id. at 892-93.
44
See State v. Base, 126 P.3d 79, 83 (Wash. Ct. App. 2006) (“In Washington, both biological parents have an obligation to support their children regardless of marital status.”) (citing Linda D. v. Fritz C., P.2d 223, (Wash. Ct. App. 1984)). Washington recently adopted the UPA (2017), so although this case hasn't been explicitly overturned, it might not be good law going forward.
45
Protecting Children, supra note 19, at 1199.
46
A.H. v. M.P., 857 N.E.2d 1061, 1065 (Mass. 2006); Protecting Children, supra note 19, at 1208.
47
A.G.R. v. D.R.H., No. FD-09-001838-07, 2009 N.J. Super. Unpub. LEXIS 3250 (Super. Ct. Ch. Div. Dec. 23, 2009); Nature of Parenthood, supra note 2, at 2330.
48
A.G.R., 2009 N.J. Super. Unpub. LEXIS 3250, at *2.
49
Id. at *2.
50
As the court noted, in 2009, the New Jersey legislature made no provision for gestational surrogates. Id. But this changed on May 30, 2018, when Governor Phil Murphy signed the New Jersey Gestational Carrier Agreement Act [S482] into law. Under the new law, gestational carrier agreements are now legally enforceable, as long as they fulfill certain stipulations. Most importantly, the “gestational carrier” must be “a woman who does not make use of her own egg.” N.J. S
51
A.G.R., 2009 N.J. Super. Unpub. LEXIS 3250, at *10.
52
Id. at *8.
53
Id. at *9.
54
Id.
55
Id. at *13.
56
Following the same statutory analysis used by the In re Baby M court, the A.G.R. court concluded that the silence of the New Jersey Parentage Act “as to acknowledging surrogacy agreements … suggested that the Legislature chose not to recognize surrogacy.” Id. at *8. But silence is not an explicit statutory scheme.
57
Mary Patricia Byrn & Lisa Giddings, An Empirical Analysis of the Use of the Intent Test to Determine Parentage in Assisted Reproductive Technology Cases, 50 H
58
Id. at 1296.
59
Id.
60
Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993); Byrn & Giddings, supra note 57, at 1296.
61
Protecting Children, supra note 19, at 1183 (“The most appropriate solution is to apply the consent = legal parent rule to all children born through artificial insemination, regardless of the marital status, gender, or sexual orientation of the participants.”). The consent = legal parent rule seems to have originated with Joslin; when NeJaime takes it up and advocates for its use, he attributes it to her. See Nature of Parenthood, supra note 2, at 2345.
62
Protecting Children, supra note 19, at 1223.
63
Id. at 1223. This argument is advanced to support the reasonableness of a consent rule in the context of ART; obviously, some couples very much intend to get pregnant when they have sexual intercourse.
64
Id. at 1224 (quoting Marjory Schultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 W
65
There are obvious concerns about how this could be verified or enforced. Some scholars believe that intentional parenthood, unlike functional parenthood, is a type of parenthood that does not depend on the permission of a legally recognized parent. See Richard Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 H
66
Id.
67
Id. at 1225-26.
68
Id.
69
Id. at 1226.
70
Id. at 1227.
71
Constitution of Parenthood, supra note 30, at 40-42. California, Vermont, and Washington incorporated the UPA (2017) into their state statutes in 2018; bills implementing the UPA have also been introduced in Pennsylvania, Rhode Island, Connecticut, and Massachusetts. Parentage Act, U
72
Nurturing Parenthood, supra note 27, at 597.
73
Constitution of Parenthood, supra note 30, at 42; see also Changing Tides, supra note 15, at 172.
74
Nature of Parenthood, supra note 2, at 2361.
75
See N
76
U
77
Id. § 703.
78
Id. § 707. An individual withdraws their consent to parent “by giving notice in a record of the withdrawal of consent to the woman who agreed to give birth to a child conceived by assisted reproduction.” Id.
79
Id. § 704. Although the UPA (2017) is laudably gender-neutral in many respects, it does replicate language about “women” as birth parents.
80
Id. § 704(b)(2).
81
Id. art. 9 cmt.
82
Id. § 902 (“This [article] applies only to gametes collected on or after [the effective date of this [act]].”).
83
Id. § 904.
84
Id. § 904(b)(1).
85
Id. § 905(b). The required “identifying information” includes “(A) the full name of a donor; (B) the date of birth of a donor; and (C) the permanent and, if different, current address of the donor at the time of the donation.” The required “medical history” means “information regarding any: (A) present illness of the donor; and (B) past illness of the donor; and (C) social, genetic, and family history pertaining to the health of the donor.” Id. § 901.
86
Id. § 904 cmt.
87
Id. § 904(c).
88
Id. § 702.
89
Polikoff, supra note 6, at 135.
90
Id. at 131-34.
91
See Michael H. v. Gerald D., 491 U.S. 110 (1989); see also Troxel v. Granville, 530 U.S. 57 (2000) (affirming a mother's right to control a grandparent's access to her children).
92
Michael H., 491 U.S. at 118. Given that Michael H. paves the way for same-sex (marital) parentage rights, this might be the single funniest line of dicta in Supreme Court jurisprudence.
93
Nature of Parenthood, supra note 2, at 2360.
94
Anne Dailey & Laura Rosenbury, The (New) Law of the Child, 127 Y
95
Id. at 1471.
96
N
97
Id.
98
Id. As a general matter, protections for unwed parents are less consistent and more precarious.
99
Changing Tides, supra note 15, at 160.
100
Id.
101
Id.
102
Id. at 165-68.
103
Ghosts in the Postmodern Family, supra note 15, at 107-08. As Weaver notes, exploitation via adoption continues in the modern day, and disproportionately affects “foreign-born and children of color.” Changing Tides, supra note 15, at 168-69.
104
Changing Tides, supra note 15, at 160-61; see also Ghosts in the Postmodern Family, supra note 15, at 87 (“Adoption law, itself a modern creation, has evolved over its relatively short life from a simple way to legally recognize de facto parent-child relationships to a rigid, almost mythic, imitation of the birth family and now toward a more organic and expansive system.”).
105
Ghosts in the Postmodern Family, supra note 15, at 75.
106
Id. at 125 (“It may be that at the heart of the adoptive relationship is adoptive parent control and autonomy rather than the fiction of rebirth.”).
107
Id. at 88.
108
N
109
Naomi Cahn, No Secrets: Openness and Donor-Conceived “Half-Siblings,” 39 C
110
Id. at 340.
111
Id. at 329; see also N
112
Cahn, No Secrets, supra note 109, at 329.
113
Id. at 332.
114
Ghosts in the Postmodern Family, supra note 15, at 127. Many adoption agreements are negotiated via contract and enforced on a voluntary basis.
115
Cahn, No Secrets, supra note 109, at 335.
116
Ghosts in the Postmodern Family, supra note 15, at 134; see also T
117
Changing Tides, supra note 15, at 170-71, 175.
118
Georgia law makes it a felony to artificially inseminate someone (or yourself) anywhere other than in a doctor's office. G
119
See generally Valarie Blake, It's an ART Not a Science: State-Mandated Insurance Coverage of Assisted Reproductive Technologies and Legal Implications for Gay and Unmarried Persons, 12 M
120
For instance, by either obscuring the origins of donor-conceived children, or by sealing and replacing the original birth certificates of adopted children. Cahn notes that the intended purpose of sealing and replacing birth records was “to reduce the stigma of illegitimacy.” N
121
Id. at 66 (citing Diane Beeson et al., Offspring Searching for Their Sperm Donors: How Family Types Shape the Process, 26 H
122
Id.
123
Id. at 115-17; Ellen Trachman, Beware Of The Home DNA Kit! You May Find Yourself Being Sued By A Sperm Bank, A] (last visited Feb. 7, 2019).
124
N
125
Trachman, supra note 123.
126
Donna Lyonds, The Constitutionality of Extending the Right to Identity Provisions in the Children and Family Relationships Act 2015 to Donor-Conceived Children, 16 H
127
United Nations Convention on the Rights of the Child, Sept. 2, 1990, 1577 U.N.T.S 3, 3.
128
Id.
129
Donna Lyons, Domestic Implementation of the Donor-Conceived Child's Right to Identity in Light of the Requirements of the UN Convention on the Rights of the Child, 32 I
130
I] (noting that “for medical reasons alone this knowledge is of increasing importance to the child”).
131
Lyons, supra note 129, at 4.
132
N].
133
Brittney N. Sharp, Comparing the Rights of Adoptees and Donor-Conceived Offspring in States Granting Access to Original Birth Certificates and Adoption Records: An Equal Protection Analysis, 11 A
134
Id. at 523.
135
N
136
Ghosts in the Postmodern Family, supra note 15, at 102.
137
For a discussion of LGBT parents' desire for biological children, see Boucai, supra note 119, at 1083-87. Boucai lists parenthood motives such as “an inherent craving for immortality,” “a need to cheat death,” and “parenthood's promise of … respectability, normalcy, and acceptance.” Boucai reports a troubling statistic: “less than sixty percent of Americans think that adoptive parents receive the same amount of satisfaction from raising an adoptive child as from raising a biological child.” Id. at 1087.
138
Ghosts in the Postmodern Family, supra note 15, at 104.
139
Id.
140
Boucai, supra note 119, at 1068-69; see also Khiara M. Bridges, Windsor, Surrogacy, and Race, 89 W
141
Boucai, supra note 119, at 1099 (citing K
142
Id.
143
Id.
144
Id. at 1104 (internal quotation marks omitted).
145
Id. at 1106.
146
See Bridges, supra note 140, at 1152 n.103.
147
Id. at 1152.
148
See generally N
149
See Jacqueline Mroz, A Mother Learns the Identity of Her Child's Grandmother. A Sperm Bank Threatens to Sue, N.Y. T]; Trachman, supra note 123.
150
See Privacy is in Our DNA, 23] (last visited Feb. 8, 2020).
151
See Mroz, Sperm Bank Threatens to Sue, supra note 149. That being said, 23andMe is neither an adequate solution nor any kind of guarantee for children who need information about their genetic relatives; and the commercial collection of genetic material also raises obvious and urgent privacy concerns.
152
David D. Meyer, Family Diversity, in W
153
See generally J
154
D
155
Cahn, No Secrets, supra note 109, at 330. Moreover, “relationships can be improved by openness even if the children are not ‘suffering.’” Id. at 330 n.99 (quoting Ellen Waldman, What Do We Tell the Children?, 35 C
156
Dailey & Rosenbury, supra note 94, at 1532.
157
Id. at 1481 n.126 (quoting Joel Feinberg, The Child's Right to an Open Future, in W
158
But see D
159
A.G.R. v. D.R.H., No. FD-09-001838-07, 2009 N.J. Super. Unpub. LEXIS 3250 (Super. Ct. Ch. Div. Dec. 23, 2009). The clarity of New Jersey's new Gestational Carrier Agreement Act, passed nine years after AGR, will hopefully prevent similar family tragedies in New Jersey—and might also provide a model for other states. N.J. S
160
See, e.g., N
161
Changing Tides, supra note 15, at 164 (“Same-sex marriage became legal across the country in 2015, and assisted reproductive technology continues to expand the methods by which children are created. The process and practice of adoption will have to change along with the times to be more child-centered as technology improves and the challenges faced by many adopted children become more well-known to the general public. While ideally these changes could result in a legal expansion of children's rights, they may realistically place upon the state a larger duty under the parens patriae doctrine to provide a basic pathway to the child's biological family and identity. Even with new protections afforded to some adoptees, marriage, race and family identity still remain a large part of the adoption process.”).
162
Polikoff, supra note 6, at 143.
163
See Nature of Parenthood, supra note 2, at 2329 (“Views that tie motherhood to biology not only negatively affect women; they also harm men by viewing fatherhood as derivative of motherhood and secondary as a parental role.”).