Adam & Eve, Adam & Steve, and Ada & Eve: Gender Neutrality in Defining Parental Status in Assisted Reproduction

By Makris, Sophia | The Review of Litigation, Winter 2018 | Go to article overview

Adam & Eve, Adam & Steve, and Ada & Eve: Gender Neutrality in Defining Parental Status in Assisted Reproduction


Makris, Sophia, The Review of Litigation


I. Introduction..........744

A. Medical Background...........745

B. Legal Background...........746

1. Presumption of Paternity...........746

2. Same-Sex Marriage...........748

II. Competing Concerns...........749

A. California Statute & Application...........750

B. Texas Statute & Application...........753

C. New York Statute & Application...........757

III. Proposed Solutions...........761

A. Gender-Neutral Approach to the Presumption of Paternity...........761

B. Gender-Neutral Written Consent...........762

C. Uniform Parentage Act & Legislation...........764

D. Adoption as an Alternative Solution...........765

IV. Conclusion...........766

I.Introduction**

The recognition of parental rights for those who have contributed to the creation of a child has long been protected by the Due Process Clause.1 Many married lesbian couples choose to begin a family through the use of assisted reproductive technology. One common procedure is a_72.tificial insemination. For a married lesbian couple, one female partner is inseminated with the sperm of a donor. Generally, the sperm donor has given up any rights to the child that results from the use of his sperm. The child is genetically related to the a_72.tificially inseminated female spouse but jointly raised by the two women as parents. This process results in a child that has one biological mother and one non-biological mother. The non-biological mother often adopts the child in this situation.2 However, if the child has not been adopted and the marriage dissolves, the applicability of the common-law presumption of paternity to the non-biological mother is unclear.3 This note proposes a just solution for the fapplicability of the presumption of paternity to married homosexual women and a gender-neutral written consent requirement for married and unmarried intended parents that best meets the competing needs of the biological mother, the non-biological mother, and the child.

A. Medical Background

Reproductive technology has made lesbian biological motherhood possible. The use of a_72.tificial insemination dates back to 220 A.D., and today it is a "popular and publicly accepted manner of producing children when a woman's partner cannot provide viable sperm, or when the mother decides to have her child without a partner."4 A_72.tificial insemination is "most frequently used to combat male reproductive problems," or in the case of lesbians, the absence of male sperm.5 The procedure itself involves the "introduction of semen from ... an anonymous donor into the recipient's vagina or uterus."6 Following this procedure, women generally become pregnant after an "average of seven insemination attempts over 4.4 cycles to establish a pregnancy."7 This alternative means of conception is problematic for married lesbians in that there is no presumption of paternity for the non-biological mother. In contrast, a heterosexual married couple can be assured of the presumption that a child bom through a_72.tificial insemination will be legally considered to be the child of the husband, even though he has provided no biological material.

Another procedure, in vitro fertilization ("IVF"), "involves the fertilization of a human egg outside of a woman's body and the subsequent transfer of the egg to the uterus."8 Roughly "twenty to forty percent of mature eggs fail to be fertilized by IVF, and most fertilized eggs fail to establish a pregnancy."9 This technique results in the child having "two natural mothers-the genetic mother and the gestational mother, or birth mother."10 In the event that a married lesbian couple uses in vitro fertilization to produce a child, the mother that gestates the child may be able to successfully assert legal rights to the child even if there is no biological link to the child. This paper will not focus on Γ/F and will instead focus solely on the use of a_72. …

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