15 American University Journal of Gender, Social Policy and the Law 379

15 American University Journal of Gender, Social Policy and the Law 379

2007

THE PARENTAGE PUZZLE: THE INTERPLAY BETWEEN GENETICS, PROCREATIVE

INTENT, AND PARENTAL CONDUCT IN DETERMINING LEGAL PARENTAGE

Deborah H. Wald

A collection of factors have combined to make this an extraordinarily complex and confusing time in history for determining legal parentage of children. These factors include the following:

(1) The mind-boggling number of children in foster and kinship care--creating a pressing need to do a better job of finding "parents" for young and vulnerable children;

(2) The rapid changes in medical technology whereby egg donors, sperm donors, in vitro fertilization, and surrogacy are becoming commonplace;

(3) The rise in divorce rates and the accompanying rise in stepparent and "blended" families; and

(4) The increasing numbers of single people and same-sex couples choosing to become parents through assisted reproduction or adoption.

All of these phenomena combine to create a perplexing and fascinating puzzle-- the parentage puzzle.

I will argue that courts should entertain parentage actions, as well as custody and/or visitation actions, brought by as many adults as have meaningfully contributed to parenting a child. By not mechanistically limiting the number to two, some critical adults will not find themselves completely shut out of the process. In addition, I will argue that courts should use a best interests approach to resolving any disputes among these adults.

Contrary to the fears of some courts, finding parentage in more than two \adults need not lead to further fragmentation of physical or legal custody; instead, the courts can and should move to a "best interests" analysis on behalf of children in which all relevant adults can be considered. Presumably, it will only be in the unusual case that, after due consideration, a court ultimately divides physical custody among more than two adults. But without a finding of parentage, the adults who are "non-parents" generally find themselves shut out completely, and children end up losing all contact with and support from adults on whom they had relied and who had functioned as their parents.