"Whose Child Is This?": Determining Legal Status for Lesbian Parents Who Used Assisted Reproductive Technologies*

By Hare, Jan; Skinner, Denise | Family Relations, July 2008 | Go to article overview

"Whose Child Is This?": Determining Legal Status for Lesbian Parents Who Used Assisted Reproductive Technologies*


Hare, Jan, Skinner, Denise, Family Relations


Abstract:

Assisted reproductive technologies (ARTs) have helped heterosexuals, lesbians, and gays fulfill desires to become parents. In this article, we identify assumptions upon which parentage rights in the United States are based. Examining recent legal decisions in California concerning 3 families headed by lesbian parents who used ARTs, we find that existing law inadequately addresses the circumstances of same-gender parents. Using the concepts of childcentered analysis and moral parenthood, we build policy recommendations that can serve as guidelines for states in developing comprehensive legislation. These recommendations ensure equity in court decision making for same-gender couples and their children.

Key Words: assisted reproductive technologies, children's rights, family law, lesbian parents, Uniform Parentage Act.

Recent advances in reproductive technology and science have created new delivery systems by which children arrive in families. For a variety of reasons, couples, single people, heterosexuals, gays, and lesbians have turned to assisted reproductive technologies (ARTs) to fulfill desires to become parents (Ouellette et al., 2005; Robertson, 2004). Together with other social trends, such as cohabitation, divorce, single parenting, and remarriage, these technologies have deconstructed the traditional definition of family and challenged the historical tenets upon which parental rights and responsibilities are based (Skinner & Kohler, 2002). They have also added complicating dimensions to children's rights regarding access to their parents.

ARTs vary widely in their complexity and cost (Society for Assisted Reproductive Technology, 2008). For example, female infertility may be successfully addressed with only the use of fertility drugs to stimulate ovulation. Male infertility may be successfully addressed with the use of an anonymous sperm donor. Comparatively speaking, both of these interventions are inexpensive. On the other hand, a couple (or individual) may, for various reasons, need an arsenal of procedures and services to achieve a pregnancy: donor eggs, donor sperm, in vitro fertilization, a surrogate contracted to carry the pregnancy, or all. This scenario is not only exceedingly cosdy but also creates a conundrum for societal institutions that rely on simple criteria traditionally used to define the rights and obligations of parenthood. Although these "newfangled families" defy conventional structural definitions of family, they still lay claim to the age-old functions of parents (Ehrensaft, 2005).

To date, marriage for same-gender couples is illegal in the United States with the exception of Massachusetts. Nine states, as well as the District of Columbia, either through state statutes or appellate courts offer second-parent adoption as a legal option. In addition, second-parent adoptions for lesbian and gay parents have been granted at the trial court level in 18 other states (Human Rights Campaign, 2008). Meanwhile, the 2000 Census Bureau reported 601,209 same-gender partner households across 99.3% of all counties in the United States (Smith & Gates, 2001, as cited in Oswald & Clausell, 2006). Many of these households include children (Gartrell, Rodas, Deck, Peyser, & Banks, 2006; Hare & Richards, 1993; Robertson, 2004). Clearly, the families of same-gender couples exist on the periphery of legally recognized family forms, not quite captured within the social lens by which we validate the American family.

Conceptual Framework: Child-Centered Analysis

Zicklin (1995), Morton (1998), and Alien (2007) all voiced concerns for children who have lost important parental relationships because the law failed to protect their family ties. Woodhouse (1993) used Dr. Seuss' (1966) famous book Norton Hatches the Egg to challenge the family law legacy of ownership through genetic title. Horton the elephant was asked by Maizie Bird to sit on her egg while she vacationed down south. …

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