Reproductive technology has been a reality in the United States for quite some time. During the 1980s and 1990s these scientific developments were beacons of hope for many childless couples. The legal support ensuring that these couples would not have any backlash from conceiving via a donor or perhaps by using a surrogate was minimal. As assisted reproductive technology became more popular the demand for stricter laws governing the perimeters of the donated ova or sperm became more complicated. In this instance, one would have to say that science and technology had evolved at a greater rate of speed than that of the legal system. To complicate matters even further for the legal system, lesbians have found that the use of assisted reproductive technology allows them to experience parenthood without all of the legal hassles of adoption. In this paper, I will discuss and show the evolutionary development of science, technology, and legislation with regard to reproduction and parentage by highlighting their history, in addition to adding a personal story as the impetus for my research.
In the past few decades, the concept of ‘family’ in the United States has changed radically. No longer does the term ‘traditional family’ apply to just one father, one mother, and their biological children. This is no longer seen as the norm. More children than ever before live in arrangements that include only one or neither of their biological parents. Since family law is primarily an issue left up to the states, there has been a wide variety of responses to address these changes in the family structure. These responses can vary greatly as this issue tends to be a rather polarizing topic, due to the diverse social, generational, and religious beliefs in this country. There are many legal conflicts over the definition of parentage and parental rights. One of the populations at the heart of these conflicts is female same-sex couples who wish to become parents.
Decades ago, these women only had the option to adopt to fulfill their desire to become parents. In general, attitudes towards Lesbian’s adopting are changing, but are changing at a snail’s pace. Ultimately the decision to change the law as to ‘who is’ versus ‘who is not’ eligible to adopt rests with each state. Many states, like Florida, do not endorse same-sex couple adoptions or co-parentage. And, even if a state does approve of same-sex couple adoptions, those making the decisions have the ability to influence or steer the adoption process based on their own personal prejudices against homosexuals and same-sex adoptions. As a result, Lesbian women have developed innovative ways to circumvent the traditional, and discriminatory, adoption process to become parents through Assisted Reproductive Techniques (ART). However, by bypassing the adoption process they have saddled themselves with other sets of problems; that of being legally recognized co-parents and listing both mothers on the birth certificate of the child, to name a few.
The impetus for researching the subject of Lesbians and their struggles to become recognized as legal co- parents comes from a personal story experienced by two of my friends, Jennifer and Cheryl McKettrick. They are residents of Cincinnati, Ohio, and were married in Massachusetts. They have had a loving committed relationship for quite some time and are co-raising Jennifer’s three children from a prior heterosexual marriage. Several years into this relationship they came to the decision that they wanted to have a child of their own. Cheryl donated an ovum, which was fertilized via an (unknown) sperm donor and then transferred into Jennifer. Obviously this was a planned pregnancy and it was their intention to raise and care for this child and to provide a safe, secure and loving family environment. To their delight, a healthy baby boy was born. Jennifer and Cheryl wanted to ensure that they both had legal rights, independent of one another as well as together, to make decisions with regard to what would be in the best interest of the child. They quickly found out that Cheryl had no legal standing as a parent and could make no decisions about school or health and welfare issues for her child. In addition to having no legal standing in the day to day needs of her child, as a spouse Cheryl did not have any legal claim to their son if anything happened to Jennifer. Their son would not be placed with Cheryl, as would automatically be done in a heterosexual marriage. Cheryl and Jennifer have had an exhaustive legal battle, presented to both the Warren County Court in Ohio and then to the State Supreme Court of Ohio. In my research, their story typifies what many Lesbian mothers have experienced who have chosen this path to parenting.
The opposition by the State’s Legislative body is detrimental to the innocent children who are caught in the middle of this battle. One has to ask whether (or not) the legal system is serving the ‘best interest of the child’ by either refusing to or by making it extraordinarily difficult for the non-biological mother to have equal legal rights with regard to the welfare and well-being of the aforementioned child. To have a better understanding of this issue, it is necessary to review the historical path parentage has taken and consult existing bodies of works like the Uniform Parentage Act.Historic Emphasis on the Traditional Family
Through much of the twentieth century, American Courts emphasized the procreative role of the traditional marital family. The Supreme Court of Washington noted that in the United States, the marital family was linked to the biological function of conceiving and raising children, and that “nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child rearing” (Kindregan, 2008). Less than a generation ago, Courts rarely confronted parentage issues outside of a biological framework.
Science has created the potential for non-traditional families to have children. The ability of non-traditional families such as same-sex unions, single-parent families, or infertile couples to procreate has in turn created the need for legal categories that did not previously exist. The traditional categories of “mother” and “father” can no longer be universally applied, at least without reservations as to the meaning of those words. Today the law must consider categories such as “genetic parent,” “surrogate parent,” “intended parent,” “gamete-donor parent,” and other concepts that have grown out of the new realities. These new legal categories of parentage are shifting and evolving as reproductive science and laws continue to progress in different directions.Assisted Reproductive Technologies
Prior to scientifically designed and publicly available assisted reproductive technologies, some women, who desired to get pregnant by non-conventional means, used the “turkey baster” method with which to become inseminated. This method was certainly not as precise as what is available today. The new 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 their desires to become parents” (Ouellette et al., 2002; Robertson, 2004).
Artificial insemination is the oldest, simplest, and most common form of ART. Artificial insemination was widely used in the United States since the 1950s and by 1979 estimates suggested that between 6,000 and 10,000 children conceived via artificial insemination were born each year. As technology for freezing and storing sperm advanced and sperm banks became more popular, the use of artificial insemination increased further. By 1996, an estimated 170,000 women underwent artificial insemination each year, resulting in 65,000 births annually (Byrn, 2007).
In vitro fertilization was first used successfully in the United States in 1981, and by 1996, 65,863 in vitro fertilization cycles were performed each year, resulting in the birth of 21,196 children. By 2000, these numbers increased to 99,989 in vitro fertilization cycles and 35,345 children. Moreover, the in vitro fertilization success rate increased from five percent in the mid-1980s to fifty percent in 2006, and the cost of in vitro fertilization decreased substantially over the last decade. Such a dramatic increase in the success rate and decrease in the cost has led to a significant rise in the demand for in vitro fertilization treatments. In 2003, the Center for Disease Control (CDC) estimated that in vitro fertilization accounts for more than one percent of total live births in the United States, or nearly 50,000 children each year (Byrn, 2007).Uniform Parentage Act
The Uniform Parentage Act is a model statute that was created by the National Conference of Commissioners on Uniform State Laws to aid legislatures in drafting family legislation. The National Conference of Commissioners on Uniform State Laws has addressed the subject of parentage throughout the 20th Century. As early as 1922 this Conference penned the Uniform Illegitimacy Act followed by the Uniform Blood Tests to Determine Paternity Act in 1952, the Uniform Paternity Act in 1960 and certain provisions in the Uniform Probate Code in 1969. Ultimately the Uniform Illegitimacy Act was withdrawn by the Conference and none of the other Acts were widely adopted. However, by June 1973, the Blood Tests to Determine Paternity Act had been enacted in nine states, the Uniform Paternity Act in four and the Uniform Probate Code in five (UPA, 2002). The previously adopted narrow definition of parentage was no longer applicable to modern day ‘families’: “Parentage is derived from two events, a child’s birth to its ‘mother’ and the mother’s marriage to a man. Children born out-of-wedlock had only one legal parent, their birth mother” (Black’s Law Dictionary, 2004). The evolutionary process and continual development and revisions of what parentage meant from 1922 to 2002 still didn’t meet the needs of the Country’s adults and children and therefore could not be adopted in uniformity from state to state.
The Uniform Parentage Act was drafted and approved by the Conference in 1973. When work on the Act began, the notion of substantive legal equality of children regardless of the marital status of their parents seemed revolutionary. The conference went on record in favor of equal rights of support and inheritance in the Paternity Act and the Probate Code, even though the law of many states continued to differentiate very significantly in the legal treatment of marital and non-marital children. Many other Acts had been adopted throughout the ensuing years in order to meet the needs of families. During the 1980s and 1990s it was as though the ‘family’ was rapidly reinventing itself. No longer was there a ‘nuclear family’ as was described in the earlier draft of the Uniform Parentage Act. Once again, in order to meet the needs of the ‘family’ new Acts needed to be implemented and serious revisions to those already standing as solid documents was necessary.
In 1988 the conference adopted the Uniform Status of Children of Assisted Conception Act. Assisted reproduction and gestational agreements became commonplace in the 1990s. These processes weren’t even a thought in the minds of the 1973 Conference leaders. As a result of these changes over many years and countless hours of hard work, the 2002 amended Uniform Parentage Act was birthed. It is currently considered the official recommendations of the Conference on the subject of parentage. The changes were significant but still very short-sighted when it came to recognizing same-sex couples as shared parents of a biological child. For example, Article 7 [Uniform Parentage Act] provided that if a husband consented to his wife's assisted reproduction, then he would be the father of any resulting child. Similarly, Article 8 provided that the intended parents of a child conceived pursuant to a gestational agreement must be married. The American Bar Association objected to the wording of these provisions on the ground that they did not treat children of married and unmarried parents equally. Calling the equal treatment of children the "hallmark" of the 1973 UPA, the Conference amended the 2000 UPA in 2002, and changed the language in Articles 7 and 8 from "husband and wife" to "man and woman." These amendments to the 2000 UPA, however, did not result in the equal treatment of all children conceived via ART. Instead, the 2000 UPA denies children conceived via ART and born to same-sex couples the benefits of having two legal parents. For example, although a lesbian who gives birth to a child conceived through ART with the intent of raising the child would be the child's legal mother, Article 7 would not recognize her partner who also intended to raise the child as a legal parent. Similarly, Article 8 would not recognize both members of a lesbian or gay couple who intended to raise a child born to a surrogate mother as the child's legal parents. As a result, the 2000 UPA fails to extend a parent-child relationship to both parents of all children conceived via ART (Bryn, 2007).
The evolving science of collaborative reproductive technology has created new legal challenges for the law regarding parentage issues. The ability of same-sex couples and single parents to have children by non-traditional means has focused attention on the relationship between family and its procreative function. Often, the evolving forms of family life simply do not fit the mold of the traditional nuclear family on which much of our domestic relations law has been based. A genetic or adoptive connection between parent and child can no longer be the exclusive basis for imposing the rights or duties of parenthood when children can be brought into existence in a reproductive collaboration outside of sexual intercourse or adoption decrees. Because of new reproductive technologies, the evolution of legal thought about the family has witnessed greater reliance on concepts of intended parenthood and responsibility for the life choices which people make.
The outcome of the McKettrick’s personal story relayed earlier was that the Court upheld Jennifer and Cheryl’s shared custody agreement, as was reported in the Cincinnati Inquirer October 11, 2004. In summary, the Warren County Judge ruled in 2003 against granting the shared custody agreement stating that Cheryl could duplicate its effect by creating a patchwork of other legal documents like wills and powers of attorney. The appeals court returned the case to Warren County, noting that the best interests of the child are served by granting a formal shared custody agreement. Heather Sawyer, attorney for Cheryl and Jennifer states, “[The] decision is in line with Ohio law on protecting children…Same-sex couples need to be able to protect their families, which too often requires a patchwork of legal documents that provide a fraction of the security they need. These shared custody agreements provide security to children about their parent-child relationships” (Cincinnati Inquirer, 2003). The 12th District Ohio Court of Appeals in Middletown further noted that the child benefits “from having two caregivers, legally responsible for his welfare.”
The issues regarding the determination of parentage have come a long way over the past 100 years however there is still much work to be done. Instead of being an “adult centered” issue, we need to look at this as a “child centered” issue and by doing so develop a “best interest” uniform guideline to apply to all issues of parentage. It is my belief that all states and all legislative bodies need to use the “best interest of the child” model, without prejudice or personal interest, as the measuring tool for determining parentage. In addition to adopting a single model with which to measure parentage, the legislative bodies need to seriously address the gap in the laws regarding same-sex couples as co-parents.
Works Cited and Consulted
Bender, Leslie. (2003). Genes, Parents, and Assisted Reproductive Technologies:ARTs, Mistakes, Sex, Race, and the Law. Columbia Journal of Gender and Law, 12, 1.
Black’s Law Dictionary [8th ed 2004], parent.
Byrn, Mary Patricia. (2007). From Right to Wrong: A Critique of the 2000 Uniform Parentage Act. University of California Women’s Law Journal 16, 163.Court of Appeals of Ohio, Twelfth Appellate District, Warren County. (2004). Case Nos. CA2003-11-113, CA2004-04-035, CA2004-04-040.
Glassman, Anthony. (2004). Court Upholds Women’s Shared Custody Agreement. Cincinnati Inquirer, October 11, 2004.
Hare, Jan and Skinner, Denise. (2008) “Whose Child Is This?”: Determining Legal Stataus for Lesbian Parents Who Used Assisted Reproductive Technologies. Family Relations. Minneapolis: Jul 2008. Vol. 57, Iss. 3; pg. 365-366.
Kindregan Jr., Charles P. (2008) Family Law in the Twenty-First Century. Journal of the American Academy of Matrimonial Lawyers, 21, 43.
Ouellette, A., Caplan, A., Carrol, K., Fossett, J., Bjarnadottir, D., & Chickle, D. (2005). Lessons from across the pond: Assisted reproductive technologies in the United Kingdom and United States. American Journal of Law and Medicine, 31, 419-446.
National conference of commissioners on Uniform State Laws. (2002). Uniform Parentage Act (revised in 2002). http://www.law.upenn.edu/bll/ulc/ulc_frame.htm .
New York News. (2009). Married Lesbians To Be Listed As Parents On City Birth Certificates. http://www.ny1.com//Default.aspx?ArID=96264 .
Newsday. (2009). City eases rule for lesbian moms. The Associated Press. http://www.newsday.com/news/local/newyork/ny-nyles266083613mar26,0,5996165.
Pawelski, James, et al. (2006). The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children. Journal of the American Academy of Pediatrics,,118: 349-364.
Robertson, J. (2004). Gay and lesbian access to assisted reproductive technology. Case Western Reserve Law Review, 55, 323-372.
Romero, Adam, et al. (2007). Census Snapshot, Pennsylvania. The Williams Institute. December 2007.