"When it comes to parenting, three's a crowd." (1)
While "family life" remains an important source of joy for the vast majority of Americans, (2) the shape and structure of American family units have changed rapidly such that many American families today would have been almost inconceivable even fifty years ago. (3) Just over one-third of Americans say that the institution of marriage is becoming obsolete, and increasingly fewer Americans think that the traditional family structure of one father and one mother living together with their biological children is worth pursuing. (4) As of 2008, only 52% of Americans adults were married. (5) A large majority of Americans no longer think of marriage as the only way to form a new family--86% of Americans identify a single parent and child as a family, 80% identify an unmarried couple living together with a child as a family, and 63% agree that a gay or lesbian couple raising a child together constitutes a family. (6) Families, once established, are becoming increasingly more fluid--more than 40% of American adults have at least one step-relative in their family. (7)
In this developing cultural landscape, fewer women feel the need to wait until they are married to bear children, (8) and, as of 2010, roughly 27% of American fathers lived apart from at least one of their children. (9) Multi-partner fertility (having children with more than one partner) has become more prevalent, and accordingly children live in an increasingly diverse array of households. (10)
While family units come in a variety of shapes and sizes, there are a number of ways for a child to enter the world as well. Individuals or couples wishing to have a child have many options open to them, including purchasing donor eggs or sperm, arranging for a traditional or gestational surrogate, procuring embryo donations, or some combination thereof. (11) An estimated 30,000-60,000 children are conceived in the United States annually through sperm donations. (12) Over 1% of all children born in the United States every year are conceived using artificial reproductive technologies, which include methods described above as well as methods in which eggs are removed from a woman's ovaries, combined with sperm in a laboratory, and then returned to that woman or another host. (13)
In cases where an egg from one person is combined with the sperm from another and implanted into a surrogate, with the intention that the resulting child will be placed with an entirely different set of parents, what a court should do when the surrogate wants to keep the baby (14) or when one or both of the intended parents back out (15) can be an entirely open question. Determinations of parenthood and appropriate custodial arrangements can also be difficult when children are conceived "the natural way." Courts routinely face situations in which a married woman has a child by another man, (16) or where a lesbian woman and a male friend conceive with the intention that she raise the child with her partner (with or without the man's involvement). (17)
Determining who a child's parents are has been and remains a very important endeavor undertaken by courts, as state law is largely built on a system that prefers parents over non-parents in making custody determinations and confers certain rights and responsibilities only on the very limited number of people that the state recognizes as "parents." (18) Traditionally, this limited number has been two, but some judges have responded to the unique families that come into their courtrooms by increasing that number.
Legislators have considered ways to increase the flexibility that judges have when adjudicating family structures. One such legislator, California State Senator Mark Leno, who was moved by a particularly messy dependency action that turned on the court's determination of a child's parentage, (19) introduced Senate Bill No. …