With the use of Assisted Reproductive Technologies, the number of participants in the procreative process has increased from the biologically required minimum of two to as many as six or even eight. The law must adjust to these possibilities. While there may be additional nonbiological claimants to parentage, this Article sets forth the conceptual starting point that frames the legal definition of parentage, namely, that the law must recognize as parent any individual (regardless of gender, sexual orientation, or marital status) who is biologically related to a child.
The distinction between lender and donor for providers of genetic material in ART would clarify both the sword of seeking parental rights and the shield of avoiding parental support obligations. Once the distinction becomes clear, parental rights and obligations can be recognized as two sides of the same coin. A lender would both maintain parental rights and be responsible for providing child support, while a donor would neither have parental rights nor be obligated for support. The modern definition of parentage has arisen within a legal framework that embraces distinct tests of maternity and paternity, attributes parentage through presumptions limited by a state’s definition of marriage, and resorts to intent-based constructive tests of parentage that can trump a biological parent’s role. While historically valuable, these gender-specific and relationship-based tracks to parenthood are no longer necessary and, in fact, may deprive an individual of the legal status of parent solely because of her gender. Intent remains an important litmus test for the hard cases, but biological ties are the appropriate starting point.
Lynda Wray Black,
The Birth of a Parent: Defining Parentage for Lenders of Genetic Material,
92 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol92/iss4/4