EDC Conference // Douglas NeJaime, “The Constitution of Parenthood”
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EDC Conference // Douglas NeJaime, “The Constitution of Parenthood”


David Velleman: Our next speaker is Douglas NeJaime. Did I get that right? Douglas NeJaime: Perfect. Velleman: Wonderful. He is the Anne Urowsky Professor of Law
at Yale Law School where he teaches in the areas of family law, legal ethics, law
and sexuality, and constitutional law. He was formerly at UCLA where he was the
faculty leader of the… NeJaime: Williams. Velleman: Williams Institute on LGBT law. Yes? And his title
is [pause]. NeJaime: The Constitution of Parenthood. Velleman: The Constitution of Parenthood! Sorry, making you do your own introduction. [Audience Applause] Thanks, so thanks
to David for inviting me and thanks to Amy for organizing my participation. So I
am a lawyer, not a philosopher, and my work focuses on how law treats those who
form parent-child relationships, including in the absence of biological
ties, including through donor conception. So I use the term biological as law uses
it, which includes genetic and gestational connection, and at times I’m
gonna pull these two terms apart to say genetic or gestational but law is
often sloppy about this and means biological in ways that are
simultaneously capacious to include both and narrow meaning only the connection
between parent and child. And I study parental recognition by law which is
called legal parentage so that’s the status of being a parent of a child. And
this issue arises primarily as a matter of state family law, so it’s a state law
question, a family law question, but it can also raise constitutional questions,
meaning that states must comply with constitutional requirements as
interpreted by either state courts or federal courts including the US Supreme
Court. So I normally speak to audiences that,
one, think that equality based on sexual orientation and gender is a principle to
which law should aspire and, two, understand family formation and
recognition as necessary to LGBT equality today. And I also start from the
reality in which people are forming families in all sorts of ways, including
through donor conception. I also proceed from the premise that
parenthood is a category that’s constructed; that it changes over time;
that changes in social practices and norms, including norms about gender,
sexuality, and the family, change over time; that law shapes and is shaped by
understandings of parenthood, and that parentage is a legal determination, not
merely a reflection of biological facts; that parentage, at least in the US legal
system, was never merely a reflection of biological facts, and that a range of
relationships wholly apart from donor conception have been treated as
parent-child relationships in the absence of biological ties. And that law
has increasingly come to treat parenthood, as Erin suggested yesterday,
as a practice. But what I’ll focus on is how this approach to parenthood
developed in ways that privilege men over women and different sex over
same-sex couples. So I started with that just to make clear that I think some of
the assumptions I normally perceive from are at issue in the conversations
we’ve been having up to this point and so I’m happy, while I’m moving from those
premises, I actually think it’s important and I’m happy to discuss in the Q&A
portion, why I perceive from those premises. So those who form families
through assisted reproductive technologies, donor insemination, in vitro
fertilization, and surrogacy, frequently establish parental relationships in
the absence of a gestational or genetic connection to the child. And they asked
the law for recognition that turns on factors such as intent, parental conduct,
and family formation. Yet law fails to value parenthood’s what I’m calling
social dimensions adequately and consistently, and this failure has
significant and often painful consequences in the lives of parents and
children. Those who have been parenting their children for many years may find
that they are not legal parents of their children. Some become legal parents only
by engaging in the time-consuming, costly, and invasive process of adopting their
own children, and others, for whom adoption is impossible, remain legal
strangers to their children. Some parents may not realize adoption is necessary
until it’s too late, perhaps when their relationship to a legally recognized
parent dissolves. So consider just a few examples. In Connecticut, a married
different sex couple had a child through surrogacy and raised their child together
for 14 years. When they divorced, the state Supreme Court deemed the mother,
who had neither a gestational nor genetic connection to the child, a legal
stranger to the child. There was no quote child of the marriage.
In Florida, an unmarried same-sex couple used the same donor sperm to have four
children with each woman giving birth to two children. They raised the children
together for several years until their relationship ended, at which point an
appellate court left each woman with parental rights only to her
two biological children. They were legal strangers to the two children to
whom they were not genetically connected. In New Jersey, a male same-sex couple
used a donor egg to have a child through a gestational surrogate; a court
recognized the gestational surrogate and not the biological father’s husband, who
was the child’s primary care taker, as the child’s second parent. These last two
cases happened within the last two years. Today,
many courts and legislatures seek to promote gender and sexual orientation
equality in the family. Judges and law makers have repudiated gender-based
distinctions in both spousal and parental recognition. For instance, the
best interest of the child standard for custody is meant to be a gender-neutral
standard. It gets rid of old standards; first a standard that men had authority
over children, second a standard that women got custody of children.
More recently courts and legislatures have acknowledged same-sex couples
interest in family recognition and, extending marriage to same-sex couples
in Obergefell versus Hodges in 2015, the US Supreme Court explicitly
sought to protect not only the romantic bonds but also the parent-child
relationships formed by gays and lesbians. So courts and legislatures
claim in principle to have repudiated the privileging of men
over women and different sexes over same-sex couples in the legal regulation
of the family, but in parentage law this privileging remains. As the examples from
Connecticut, Florida, and New Jersey suggest, those who break from traditional
norms of gender and sexuality, women who separate motherhood from biological ties,
for instance through surrogacy, and women and men who form families with a
same-sex partner, often find that their parent-child relationships are
discounted. So what would it mean to build a system of parental recognition
that fully integrates families headed by same-sex couples and
how are questions of sexual orientation connected to questions of gender, such
that the law of parental recognition could allow women in not only same sex but
also different sex couples to assume non-traditional parental roles? My method
here is in significant ways historical, situating the contemporary legal
treatment of family formation through donor conception within a longer history
of parental recognition. So first I’ll begin in the common law, then I’ll
suggest how constitutional law drove shifts in the regulation of parentage
in non-marital families, and with respect to unmarried biological fathers
in particular, [regarding presentation slide] I think I just did that, and next I’ll move to assisted
reproduction, explaining how courts and legislatures have turned to social
criteria to determine parentage, even as they’ve integrated parental ties formed
through assisted reproduction into existing frameworks of parental
recognition. And this allows us to see important asymmetries and inequalities
in modern parentage law, so I’ll show that even as courts and legislatures
have acted to conform parentage law to more recent egalitarian commitments, they
reason about parenthood in ways that carry forward legacies embedded in
frameworks of parental recognition that were forged in earlier eras. With
biological connection continuing to anchor non-marital parenthood, unmarried
gays and lesbians struggle for parental recognition. And with the gender
differentiated heterosexual family continuing to
structure marital parenthood, the law assumes the presence of a biological
mother in ways that burden non-biological mothers in different sex
couples as well as non-biological fathers in same-sex couples. And so
finally I’ll briefly suggest some ways out of this. That is, how to reform
parentage law to accommodate families of this kind without discrimination based
on sexual orientation, gender, or marital status.
Okay. So first biological and social factors have shaped the law of parental
recognition. The American legal system descended from the English common law
which understood parentage as a relationship defined through marriage,
not biology. Pursuant to the marital presumption, also known as the
presumption of legitimacy, when a married woman gave birth to a child, the
law recognized her husband as the child’s father. This presumption
certainly channeled intuitions about biological paternity but it also
deliberately concealed deviations from biological facts, allowing men to avoid
questions of paternity and, more importantly, ensuring a child’s
legitimacy. Traditionally neither the husband nor wife were permitted to
testify to the husband’s quote non-access, meaning that the couple
themselves could not penetrate the presumption with inconsistent biological
facts. By allowing the marital presumption to hide situations in which
the husband was not in fact the biological father, the law ensured the
child’s legitimacy because, at common law, a child born outside a marital
relationship was deemed the child and heir of no one, what the law called
filius nullius. Traditionally the illegitimate child, as historian Michael
Grossberg explains, had no recognized legal relations with his or her parents,
particularly not those of inheritance, maintenance, or custody. The common law’s
organization of parentage through marriage reflected and enforced a gender
hierarchical, heterosexual order, giving men authority over women and children
inside marriage and insulating men’s property from claims to inheritance by
children outside marriage. Slowly American law departed from the
harshest aspects of the common-law regime. Legislatures and courts over the
late 19th and early 20th century began to recognize a legal relationship
between a mother and her quote illegitimate child, granting the mother
custody and bestowing on the child rights to support and eventually
inheritance. In contrast, though, fathers of illegitimate children had financial
obligations imposed on them less as a consequence of a legal family
relationship and more as an effort for the government to privatize family
support. Even as American law came to mitigate some of the consequences of
illegitimacy, the government continued to place substantial legal
impediments on non-marital parents and children well into the 20th
century. By the late 1960s and early 1970s, in the wake of increasing efforts
to hold unmarried fathers financially accountable and to protect the rights of
non-marital children, the US Supreme Court intervened. And it intervened by
recognizing non-marital parent-child relationships on constitutional grounds.
Biological connection served as an explicit basis for constitutional
protection for both mother-child and father-child relationships. So in other
words, the view that biological relationship gives rise to the legal
parental relationship is a fairly modern creation of US constitutional law. Even
as the court renounced illegitimacy and dismantled legally enforced gender
hierarchy within marriage, it produced a new form of gender differentiation in
parenthood which it justified by resort to reproductive biology. So at the moment
of birth, the non-marital child, unlike the marital child, had one legal
parent; the mother. A marital child had two legal parents; the mother and her
husband. The court explained that gestation and birth evidenced the
biological fact of maternity and furnished a relationship to the child
that justified legal recognition. An unmarried man, in contrast, needed to
demonstrate a commitment to the parent-child relationship, the social
practice of parenting, in addition to his genetic connection. So not all biological
unmarried fathers were legal fathers; some were and
some weren’t. As the court stated in 1983 in Lehr vs. Robertson, quote the mother
carries and bears the child and in this sense her parental relationship is
clear. The validity of the father’s parental claims must be gauged by other
measures. The logic of reproductive biology authorized more far-reaching
social and legal differences between mothers and fathers, situating women but
not men as naturally responsible for their non-marital children. Women became
mothers automatically and thus had child-rearing responsibilities imposed
on them, while men often escaped parental obligations. And for those men who
desired parental rights, the court relied on biological differences between men
and women in ways that discounted their parental contributions after the child’s
birth. Carib Kapchinski, a family law scholar, describes this as the court
treating women as draftees and men as volunteers. Against this backdrop, courts
and legislatures in the late 20th and early 21st centuries began to address
parent-child relationships formed through a range of reproductive
technologies, and they determined parentage in ways that increasingly
turned on social and not simply biological grounds; not only for men but
for women, and not only for different sex but for same-sex couples. Concepts
of what I’ve termed intentional and functional parenthood gain traction in
both judicial and statutory reasoning addressing a range of family
configurations. So even as principles of gender and sexual orientation equality
have animated shifts in parental recognition, parentage law continues to
draw distinctions that carry forward legacies of inequality embedded in those
frameworks forged in the earlier eras. So, the constitutional framework and the
common law framework that it repudiated. To be sure, family law in some states has
attempted to adapt to developments in parenthood by broadly facilitating and
recognizing families, but the focus here is on a much wider swath of
jurisdictions where law has rendered some individuals legal parents and left
others legal strangers. So I’ll start with donor insemination. We already saw the common law organized parentage around the relationship of
marriage. The second half of the 20th century, the court intervenes to protect
non-marital relationships on constitutional grounds and makes
biological connection necessary for legal relationships of fathers. Operating
differently for men and women, the gender differentiated logic of both the common
law approach and its constitutional repudiation have structured law’s
response to donor insemination. So I’ll start with marriage. Courts and lawmakers
initially responded to donor insemination by condemning donor
insemination as a threat to the quote natural family, and rejecting application
of the marital presumption. As a New York Court reasoned in the 1950s, because the
woman conceived with semen from another man, she was thought to have committed
adultery, a crime, and the resulting child was considered illegitimate: the child of
no one. Eventually, though, law accommodated the use of donor
insemination by married different sex couples, expanding marriage’s capacity to
derive legal fatherhood purely from social arrangements. So courts and
legislatures began to treat the man married to the biological mother as the
child’s father. Many states achieve this result through
a statute explicitly regulating donor insemination explicitly for married
heterosexual couples. In those states that failed to enact donor insemination
statutes, the husband of a woman giving birth to a child conceived with donor
sperm is presumed the child’s legal father by virtue of the marital
presumption, or the presumption of legitimacy. Marriage had always served as
an imperfect proxy for biological paternity but, by explicitly accepting
donor insemination, law embraced social fatherhood in ways that rendered
marriage not a proxy but a substitute for biological paternity. Same-sex family
formation eventually injected contemporary questions of equality into
the regulation of donor insemination, as women and same-sex couples sought legal
recognition for the non-biological mother. At this time though same-sex couples were excluded from marriage and thus had
no claim on the marital presumption or on donor insemination statutes that
apply the marital presumption to different sex couples. In those
situations, the non-biological mother was routinely treated as a legal
stranger to the child. More recently, with the onset of same-sex marriage,
parental recognition has emerged from presumptions of parentage applicable
only to married couples. So courts and legislatures have adapted donor
insemination regulations governing married different sex couples to married
same-sex couples. Provisions recognizing the mother’s husband as the legal father
can similarly treat the mother’s wife as the legal parent. In other words, the
non-biological mother in a same-sex couple satisfies a presumption of
paternity. She is, as a California Court explained, a legal father. Strikingly,
specific donor insemination statutes have become in some ways ancillary as
states have simply applied the marital presumption to lesbian couples. If law
isn’t pretending that the individual presumed to be the parent is the
biological parent, it no longer seems necessary that that individual be a man.
Now parenthood for both men and women can derive from marriage to the
biological mother. Many of these developments emerge solely
as a matter of family law, but constitutional commitment also drove
judicial decisions applying the marital presumption to same-sex couples.
So after Obergefell, courts in many states have held that donor insemination
provisions must allow the biological mother’s wife to be treated as the
child’s legal parent and several courts have held that equal protection requires
that the general marital presumption apply to lesbian couples. But the reach
of the marital presumption is far from settled. Indiana and Texas are continuing
to litigate this issue. There are state governments that continue to defend
parenthood as a biological fact, and assert that the marital presumption is
simply a proxy for biological paternity and thus shouldn’t apply to lesbian
couples. Yet these very states have allowed married men in different sex
couples to use the presumption to derive legal fatherhood of children conceived
through donor insemination. No one asks when it’s a heterosexual couple; it only
becomes obvious when it’s the same-sex couple. Now, confronted with same-sex
couples who make these deviations from biology obvious, these states have
struggled to frame the non-biological application to different sex couples as
an exception to be minimized rather than extended to same-sex couples. The
situation outside marriage is much different. Same-sex couples continue to
struggle for parental recognition. Most states draw marital status distinctions
in their treatment of donor insemination. So spouses, not unmarried partners, are
recognized as legal parents of children conceived with donor sperm. And under the
laws of many states, sperm donors are divested of rights and responsibilities
only if they donate sperm for use by a married woman. For those outside marriage,
biological connections have continued to structure parental recognition. This is
particularly problematic for same-sex couples who are not similarly situated
to different sex couples as a matter of biological parenthood. Same-sex couples
necessarily include a parent without a gestational or genetic tie to the child
and thus are vulnerable in a parentage regime where recognition would turn on
biological connection. Yet courts have generally held that laws meet equality
commitments as long as a non-biological lesbian parent in an unmarried same-sex
couple is treated the same as a non-biological father in an unmarried
different sex couple and in many jurisdictions neither of these
individuals ordinarily enjoys parentage without adoption. Consider a recent case
from Virginia. In Hawkins versus Grese, an unmarried same-sex couple decided to
have a child after they were together for several years. Grese was inseminated
with donor sperm that she and Hawkins chose together and the two women raised
the child. When they ended their relationship, the child was 7.
They informally shared custody for another 2 years but eventually relations
between them broke down and Grese, the bio mom, terminated the child’s contact
with Hawkins, the non-bio mom. Hawkins asserted that the state’s
failure to treat her as a parent of the child violated her constitutional and
statutory rights and the constitutional and statutory rights of the child. But in
2018 the Virginia Court of Appeal rejected this argument. Reasoning that
Virginia’s quote definition of parent is not inconsistent with United States
Supreme Court jurisprudence regarding the nature of the family and parentage,
citing the unmarried fathers cases I mentioned. The usual
understanding of family, the court said, implies biological relationships and
most decisions treating the relation between parent and child have stressed
this element. Of course most decisions are about unmarried parents because
marital parentage was taken for granted. Hawkins raised claims of sexual
orientation discrimination as well but the court concluded that the state’s
quote definition of parentage does not discriminate between same-sex and
opposite-sex couples. If the couple is not married, the non-biological partner
is not a parent irrespective of gender or sexual orientation close quote.
Biological connection on this view is a natural and benign feature of parental
recognition that does not treat same-sex and different sex couples differently.
Most states have grafted the two legal regimes that had formed to regulate
parentage, marriage and biology, on to donor insemination and thus sharply
differentiate between marital and non-marital families. A man and now a
woman can be a legal parent of a child conceived with donor sperm if that man
or woman is married to the biological mother. In an effort to protect
non-marital child’s relationships that had been excluded by the common law’s
marital order, courts and legislatures turned to biological connection as a
basis for parental recognition. But tethering parenthood to biological ties
perpetuates same-sex couples exclusion, and so unmarried non-bio moms ordinarily
find themselves to be legal strangers to their children. Okay, now I’m going to
turn to IVF egg donation and gestational surrogacy. While donor insemination
challenged the relationship between the biological fact of paternity and the
social role of fatherhood, IVF challenged the relationship between the biological
facts of maternity, gestation and genetics, and the social role of
motherhood. By separating gestation from genetics, IVF made biological connection
itself a more complex marker of parenthood. The biological fact of
motherhood had always followed seamlessly from birth. At common law, the
woman who gave birth was deemed the legal mother, but now a woman could give
birth to a child genetically related to another woman. Of course, many women used IVF in ways that allowed them to give birth to their own genetic
children but the technology facilitated new practices like egg and embryo
donation, gestational surrogacy, and co-maternity in which a lesbian couple has
one woman be the birth mother and one woman be the genetic mother, that divided
biological maternity across two women. Courts and legislatures navigated these
new situations in ways animated by commitments to gender and sexual
orientation equality. Women, they recognized, could attain legal motherhood
based on birth OR based on genetics. And correspondingly could separate the
physical facts of pregnancy and birth from the social role of motherhood. The
legal status of motherhood followed not simply from the biological fact of
maternity, but from the social performance of parenthood.
Not only could women in different sex couples achieve parental recognition
based on birth or genetics, but women in same-sex couples could achieve parental
recognition by having one woman be the genetic mother and the other gestational.
Nevertheless, even as social markers of parenthood became critical to legal
determinations of motherhood, a biological connection, whether gestation
or genetics, remained critical to legal motherhood. Law continued to ground
maternity, unlike paternity, in a biological tie. So consider the use of
donor eggs or embryos. Since the woman giving birth was the intended mother,
others would rarely know that she was not genetically related to the child, so
disputes really didn’t arise. When disputes did arise, it was often in the
midst of a breakup of the relationship. When the birth mother’s husband or
partner, because people behave really horribly in divorce, attempted to use the
mother’s lack of genetic connection to deny her parental status. And as courts
and legislatures approached these conflicts,
social factors that had begun to shape legal fatherhood more thoroughly in the
regulation of donor insemination provided guidance. So, a case from
Tennessee illustrates: Cindy and Charles, an unmarried couple in their mid 40s,
decided to have children together. Cindy, who already had children, was concerned
about the viability of her eggs, and thus turned to donor eggs and IVF. After Cindy
gave birth, she and Charles raised the children together. When they eventually
broke up, Charles attempted to use Cindy’s lack of genetic connection to
deprive her of parental rights to the children. The Tennessee Supreme Court
rejected his argument. In recognizing Cindy as the legal mother, the court
focused on the fact that both she and Charles intended that she be the
children’s legal mother. The court looked to the state’s donor insemination
statute to support its consideration of intent, explaining how that statute quote
confers parental status on a husband, even though the child’s conceived in
his wife via artificial insemination, is not necessarily genetically related to
him. So too could Cindy, not genetically related to the children, be their legal
mother. Courts in other states have analogized egg and embryo donation to
sperm donation and many states have codified this result. They have statutes
that divest egg and embryo donors of parental rights and render the intended
birth mother the legal mother. Nonetheless, there was an important
difference between Cindy, the woman who gave birth to a child with donor eggs,
and a man whose wife conceives with donor sperm. The birth mother who uses
donor eggs still claims a biological, even if not a genetic connection, to the
child. As the Tennessee Court explained, Cindy claimed maternity based on
the biological marker relied upon in the common law: giving birth. And that fact
was critical to the court’s judgment. Parentage laws around the country
continued to provide that maternity may be established by giving birth. So unlike
men, whose wives used donor insemination, women using donor eggs turn to intent as
a supplement to rather than a substitute for biological markers of parenthood. For
these women, gestation and birth constitute biological maternity, and thus
form the basis of a claim to parentage. Intention, the social criteria, supports
parental recognition but only parental recognition that follows from some
biological connection. In contrast to the relatively few
disputes regarding donor eggs, the use of IVF in surrogacy has provoked
much greater controversy in the courts by disturbing the foundational
assumption that the woman giving birth is the child’s mother. States began to
recognize intended mothers as legal mothers if they were also genetic
mothers. So intended parents, husband and wife, husband’s sperm, wife’s egg,
gestational surrogate gives birth, courts increasingly, almost universally,
recognized the genetic intended mother as the legal mother. Consider a case from
Massachusetts. Marla Culliton asserted that she was
quote incapable of bearing and giving birth to a child without unreasonable
risk to her health, so she and her husband Stephen entered into an
arrangement with Melissa, a single woman who agreed to serve as a gestational
carrier. The embryos gestated by Melissa were created from Stephen’s sperm
and Marla’s egg, thus allowing the Cullitons to have their own genetic
children. All three parties sought the same relief in court, asking that Marla
and not Melissa be recognized as the legal mother. So, they had Massachusetts
law that didn’t do this, all three of them came in because the surrogate said
I don’t want to be the legally responsible party for this child. In an
earlier case, the Massachusetts Supreme Judicial Court had required adoption by
an intended mother in circumstances involving traditional surrogacy, in which
the surrogate is inseminated with the intended father’s sperm and gives birth
to a child to whom she’s also genetically related. Yet with the new
scenario, presented by the Culliton’s, the court distinguished that case, and ruled
that adoption wouldn’t be required in circumstances of gestational surrogacy
where the intended mother is the genetic mother. Marla would be the legal mother
and Melissa, the gestational surrogate, would not. Ordinarily, a child born to an
unmarried woman, here Melissa, would not be a child of the marriage.But Marla’s
genetic connection changed the calculus for the court. While the twins
technically were born out of wedlock, the court explained, they were conceived by a
married couple and in these circumstances the children should be
presumed to be the children of marriage. Marla didn’t attain parentage by virtue
of her marriage to Stephen, the biological father. Rather, Marla’s genetic
connection allowed her to claim legal motherhood, and thus to claim the
children as children of the marriage. With gestational surrogacy, a child could
qualify as a child of the marriage based on the mother’s genetic connection, even
if she didn’t give birth to the child. Note that that also means that if
Stephen was not the genetic father, he would qualify for legal fatherhood by
being married to Marla. Taken together, the emerging regulation of gestational
surrogacy and egg donation made motherhood a contested biological, social,
and legal status. Either gestation or genetics can be the basis of motherhood,
and neither gestation nor genetics is itself necessary to motherhood. A woman
can be a legal mother when she gives birth to a child genetically related to
another woman, an egg donor, and a woman can be a legal mother when she is
genetically related to a child carried by another woman, a gestational surrogate.
With the expansion of women’s reproductive and parental options,
motherhood became contingent on social factors. Faced with two women who could
claim a biological tie to the child, one gestational, the other genetic, courts
turned to intent to determine which mother was the legal mother. While the
role of intent is in some ways mirroring determinations of legal fatherhood in
the donor insemination context, the legal mother, again,
still enacted parenthood biologically, either as genetic progenitor or through
pregnancy and birth. Law could preserve motherhood as a biological status, even
as it resorted to social factors to determine its legal status. The social
factors supplanted biological ties in the donor insemination context, but they
merely supplemented biological ties in the context of IVF and gestational
surrogacy. Still, the regulation of parenthood through gestational surrogacy
signaled something that the regulation of parenthood through egg donation did
not. The recognition of genetic mothers as legal mothers and the corresponding
non-recognition of gestational surrogates made reproductive biology
less central to parenthood. And thus reduced the salience of a key
justification for gender differentiated parental recognition. Remember, I said
when the US Supreme Court repudiated the common law regime of illegitimacy, it
placed a premium on biological connection, but it differentiated between
mothers and fathers by resort to reproductive biology. A woman was
automatically a mother because she gave birth, but a man was not automatically a
father based on his genetic connection. He had to do something to engage in
the social act of parenting. Now, and for constitutional purposes, this isn’t
seen to pose an equality problem because one of the ways in which you can justify
a distinction in law between men and women is to say that it’s justified by
inherent or real differences between men and women, and reproductive biology was
seen as a real difference. Now, in the age of ERT, the premium on biological
connection aided the genetic intended mother, so now the court said she was
like the unmarried biological father in the 1970s. She has a genetic connection
and she’s stepping forward to be a parent, so she should be a legal parent. Yet by focusing on the rights of genetic
intended mothers, courts cleaved the biological process of reproduction from
the legal status of motherhood, thus weakening the justification for
differences between motherhood and fatherhood. The genetic intended mother
was now like the unmarried genetic father. At the same time, the woman who
gave birth who had always been the legal mother, no longer necessarily attained
that status if there was another woman who had a genetic tie. So the law’s
accommodation of assisted reproduction pulled back on the gender differentiated
understanding of parenthood that the constitutional repudiation of legitimacy
had authorized in the name of reproductive biology. This push away from
reproductive biology as a justification for differentiated
parental status runs out of steam, though, when we hit gestational surrogacy that
ALSO involves egg donation. So that’s what I moved to lastly. Intended parents
who engage two women, an egg donor and a gestational surrogate, struggle to
capitalize on law’s acceptance of gestational surrogacy.
So while legal fatherhood’s non biological capacity inside marriage
expanded, legal motherhood largely remained a biological status; even as
assisted reproduction complicated motherhood’s basis. A woman who gives
birth to a child conceived with a donor egg is a legal parent. The biological
fact of gestation and birth, along with her intention to be the child’s mother,
render her the legal mother. A woman who uses her own egg but engages a
gestational surrogate to carry the child is a legal parent. The genetic
contribution and her intention to be the child’s mother render her the legal
mother. Social aspects of parenthood now shape determinations of motherhood, but,
unlike fatherhood, not in ways that dislodge parental recognition from
biological connection. So for a woman who both engages a gestational surrogate AND
uses a donor egg, the law often fails to treat her as a legal mother. Men without
biological ties attain parentage by virtue of marriage to the biological
mother, but women without biological ties do not attain parentage by virtue of
marriage to the biological father. So compared to decisions from Indiana: in
infant R, the court allowed the gestational surrogate to disestablish
maternity. That means, you say, you asked the state to say you are not a parent of
this child, to disestablish paternity when the intended mother was also the
genetic mother. Whereas the trial court had denied the request because quote the
birth mother is the legal mother, the appellate court reversed, in light of the
state’s quote interest in correctly identifying a child’s biological mother.
So now the biological mother was the genetic mother, not the birth mother. But
in a subsequent case, infant T, the court refused to disestablish a gestational
surrogates maternity when the biological father’s wife,
the intended mother was not genetically related to the child and had used an egg
donor. The court concluded quote it would not be in the best interests of the
child and would be contrary to public policy to allow the birth mother
to have the child declared a child without a mother, close quote.
Of course there was a mother to raise the child, but one without a gestational
or genetic connection to the child. So while reproductive biology no longer
justified gender differentiated parentage when courts and legislatures
confronted intended genetic mothers who had engaged gestational surrogates, it
reemerged as a basis on which to reject the sex equality claims of non
biological intended mothers denied parental recognition. So intended mothers
who relied on both an egg donor and a gestational surrogate compared
themselves to married men who were married to women who conceived with
donor sperm. These men can attain parentage without a biological tie to
the child. They attain parentage by virtue of their marriage to the
biological mother – and remember the Massachusetts case, by virtue of the
genetic or gestational mother. And so, women who had no genetic or gestational
tie to the child said it is an equal protection problem. You were
discriminating against me based on sex. That you allow men married to biological
mothers to be parents without biological status, but you don’t allow women married
to biological fathers to attain that status. Courts have uniformly rejected
these claims. As the New Jersey appellate court reasoned, quote the complaint of
disparate treatment is not grounded in gendered constructions of parenthood but
in actual reproductive and biological differences. This is the real differences
justification for sex discrimination. Such differences are often deemed
sufficient to insulate gender-based regulations by collapsing the biological
aspects of reproduction with the social aspects of parenthood. The New Jersey
Court situated the state’s regulation of parenthood as an innocuous and natural
response to the biological processes of reproduction, one that didn’t pose
questions of gender inequality Note that the status
of not only the intended mother but also the gestational surrogate is affected by
the fact of donor conception. So the gestational surrogate is not a legal
mother when the intended mother is the genetic mother. Remember the infant R
case in Indiana. Gestational surrogate says I do not want to be a legal parent
of this child. There’s a woman here, she’s the genetic mother; she wants to be the
legal parent. Court says yes; gestational surrogate, you are not legal
mother of this child. But the gestational surrogate is a legal
mother when a donor egg has been used. Like in infant T, her role has not
changed; she is doing the same thing. And yet her status as a legal parent is
altered based on whether the intended mother contributed contributed her own
genetic material or not. Non-biological fathers in same-sex couples find
themselves in a similar position to non biological mothers in different sex
couples. So gay male couples engaging in gestational surrogacy necessarily
include a non-biological intended parent. And given that same-sex couples are
differently situated from different sex couples with respect to biological
parenthood, a non-marital parentage regime we’ve seen organized around
biological connection disadvantages same-sex couples relative to different
sex couples. But marriage had begun to offer relief to lesbian couples. Given
that family based equality is assumed to grow out of marriage equality, and given
judicial statements like one from a New York Court saying the child of either
partner in a married same-sex couple will be presumed to be the child of both,
one might expect that male same-sex couples attain dual parentage by virtue
of marriage. Much follows simply from the determination that a child is a quote
child of a marriage. But parties to the marriage, even if they’re not
biologically related, have standing to assert parental rights, including rights
to custody, but this doesn’t reach married same-sex couples who are men.
Parentage presumptions applicable to same-sex couples
replicate the gender differentiated rules applicable to different sex
couples So presumptions of parentage for the
second parent ,even when they apply to both
women and men, relate to that person’s marriage to the woman giving birth or
the biological mother. Accordingly a woman can derive parentage by virtue of
her marriage to the biological mother, as parental regulation and lesbian couples
makes clear, but a man can only derive parentage by virtue of marriage to the
biological mother, not the biological father. Without biological ties, men in
same-sex couples, like women in different sex couples, find themselves in the same
position. Neither can establish parentage without adoption. Okay, so observing this
feature brings to the surface a key dynamic in modern parentage law. Even in
an age of sex and sexual orientation equality, courts and legislatures
continue to treat biological mothers as the parents from whom the legal family
necessarily springs. This treatment is rooted in the marital presumption and is
carried forward by the presumptions adaptation to assisted reproduction. So
traditionally the woman giving birth is the legal mother and, if she’s married,
her husband is the legal father. Laws adapted this reasoning to different sex and
same-sex couples using donor insemination. And it’s reached different
sexes and same-sex couples using donor eggs and embryos when the intended
mother is the birth mother. The gendered heterosexual legacy of marital parentage,
parentage by virtue of marriage to the woman giving birth, is justified by
resort to the gendered heterosexual logic of reproductive biology. But law’s
accommodation of assisted reproduction reveals the instability of that very
logic. Courts are willing to deviate from the gendered logic of reproductive
biology to recognize the genetic mother, who engages a gestational surrogate to
carry her child. Within a regime that prioritizes
biological ties, contemporary courts view the genetic mother like the biological
father. Courts see clearly that the differential treatment of genetic
mothers and genetic fathers poses an equality problem. Yet in considering the
claim of a non-biological mother who engages an egg donor gestational
surrogacy, reproductive biology persists as a justification to reject her claim
to parental recognition. Courts don’t see an equality problem when law recognizes
a non-biological father as a legal parent but withholds recognition from a
non-biological mother. In either of these cases, one could imagine courts invoking
reproductive biology to justify the differential treatment of mothers and
fathers. In fact, in some of the earliest gestational surrogacy cases, courts
rejected the claims of genetic mothers based precisely on grounds of
reproductive biology. Motherhood, they reasoned, resulted from the specific act
of birth, so a New York Court actually early on had said the birth mother is
the legal mother; doesn’t matter if there’s another genetic mother because
the differences between men and women; women give birth,
men don’t, birth leads to parenthood for women and it’s going to stay that way
even if there’s someone else with a genetic claim. But today courts don’t do
that. Courts disclaim reproductive biology as a basis to withhold
recognition from a genetic mother. Indeed, recall that in accepting gestational
surrogacy, the Massachusetts Court deemed the children of the genetic intended
mother children of the marriage. The mother’s genetic tie, without any
gestational tie, produced marital children. Yet a father’s genetic
connection doesn’t produce marital children, and therefore doesn’t offer a
route to parentage to a non bio mom. Reproductive biology continues to
justify treating the claims of non-biological mothers differently than
the claims of non-biological fathers. Same-sex couples who aren’t similarly
situated to different sex couples with respect to biological procreation, remain
particularly vulnerable in a non-marital regime organized around biological
connection. Marriage furnishes space for the legal recognition of non-biological
parents, but with its gender differentiated legacy offers relief to
only some same-sex parents. Non biological parents and female same-sex
couples attained virtue by and take parentage by virtue of marriage, but
that’s not true for male same-sex couples. So for a man or a woman married
to a biological mother, biological connection is not necessary
for legal parenthood. That man or woman is deemed a legal parent by virtue of
marriage. But for a woman or man married to a
biological father, the lack of a biological connection excludes that
individual from legal parenthood. So from this perspective it becomes clear that
the shift toward non-biological parenthood has occurred along only one
axis: fatherhood can capture non-biological parenthood, but legal
motherhood cannot. And the collapse of gendered parental statuses has occurred
in only one direction. Women can be legal fathers but men
cannot be legal mothers. So on this view, biological mothers are indispensable;
essential to the legal family. In contrast, biological fathers are
replaceable by men or women who have no biological connection to the child. So
the law has travelled a great distance from the common-law regime that defined
parentage through the gender hierarchical and heterosexual
institution of marriage. Yet even with wide scale waves of
liberalisation, troubling asymmetries persist. The law continues to anchor
parental recognition in biological connection and to organize the legal
family around a biological mother. And this leads courts and legislatures to
treat men’s and women’s claims to parental recognition differently and to
privilege different sex over same-sex couples, and this treatment has real
consequences in the lives of parents and children. Within the contemporary
parentage regime, those who believe they are parents on social grounds, including
those who have been parenting their children for many years, may be denied
parental status by law. Of course, it’s difficult to imagine a system that
satisfies all those who make claims to parental recognition. Right? So you might
say, well, courts and legislatures are just muddling through in a world in
which reproduction and parenting have become more complicated. But it’s
especially troubling that the law rejects claims in ways that preserve
long-standing forms of inequality. So it’s actually not haphazard; this has a
logic to it. The burdens of the parentage regimes treatment of social parental
bonds aren’t distributed evenly. Those who break from traditional norms
governing gender sexuality in the family by not marrying, by separating motherhood
from biological ties, or by forming a family with a same-sex partner, are channeled
into adoption or denied parental status all together in ways that others are not.
Same-sex family formation ordinarily features non-bio parent-child
relationships and so a parentage regime that anchors itself in biological
connection doesn’t ensure equality for same-sex couple’s families even if it
withholds legal recognition from non biological parents in both different
sexes and same-sex couples. Instead, a parentage regime that treats lesbian and
gay parents as full participants open social paths to recognition to both
women and men in both different sex and same-sex couples inside and outside
marriage. A parentage regime rooted in the gender differentiated frameworks of
marriage and biology also makes outsiders of women who parent children
to whom they aren’t biologically connected. Courts and legislatures we’ve
seen invoke reproductive biology but this approach reflects and reiterates
traditional understandings of motherhood as woman’s natural destiny. And it
excludes women who break from conventional roles by separating the
biological aspects of reproduction from the social aspects of parenting. An
approach to parentage driven by gender equality acknowledges that women and men
are not similarly situated with respect to reproductive biology, yet recognizes
both women and men who parent children to whom they are not biologically
connected. So how might law better realize egalitarian commitments in
parentage, not only with respect to families formed through donor conception,
but across the wider swath of families in contemporary society. So in practical
terms I argue that equality requires law to value social as well as biological
contributions in recognizing parents. We can reorient family law in ways that
protect the parent-child relationships of women and same-sex couples by
grounding recognition more fully and even handedly in social criteria. These
reform efforts occur primarily at the state level; state legislatures can and
are restructuring parentage law in ways that credit parenthood’s social
dimensions, and state courts can apply parentage principles to recognize those
who have committed to the work of parenting as legal parents. In my written
work, I address multiple ways that family law can protect non-biological bonds of
women in same-sex couples, but here I’ll just suggest a
few important features illustrated by the recently promulgated Uniform
Parentage Act of 2017 on which I worked. The 2017 UPA offers state lawmakers a
model of reform and states have begun to enact it, so it’s now law in Washington
state, California, Maine, and Vermont. First, parentage law can be made gender-neutral.
Statutory parents regimes in practically all states remain rooted to
varying degrees in distinct approaches to maternity and paternity. While law has
increasingly allowed both women and men with and without biological connections
to satisfy presumptions of paternity, maternity remains limited to women with
biological connection to the child. Accordingly, law facilitates families
without biological fathers, but restricts families without biological mothers.
Parentage law could move away from separate regulations of maternity and
paternity and instead work toward general regulation of parentage. The 2017
UPA is gender-neutral and collapses maternity and paternity into parentage.
Giving birth is just one of several ways to establish parentage. Second, parentage
laws should continue to rely on biological connections, birth and
genetics, but should also rely on social criteria. The UPA opens paths to non
adoptive parentage based on social and not simply biological grounds. This
includes intended parents and de facto parents, ones who are forming a
parent-child bond, and it offers mechanisms to establish parentage for
these folks. For example, an intended parent can sign what’s called a
voluntary acknowledgement of parentage along with the other parent and this
form has the force of an adjudication of parentage if it’s not rescinded within
sixty days. Other states are required by federal law to recognize acknowledgments
of this kind. Third, specifically with respect to assisted reproduction,
parentage should turn on intent and not on gender, sexual orientation, marital
status, or biological connection. The UPA employs a comprehensive and even-handed
use of intent providing that an individual who consents to assisted
reproduction by a woman with the intent to be a parent of the resulting child is
as a matter of law a parent of the resulting child. Even as states open
various forms of assisted reproduction on equal terms, they might still devise
specific regulations for particular practices. Surrogacy raises concerns with
exploitation and the commodification of women’s reproductive labor. Lawmakers
should and may continue to treat surrogacy with special caution. T he 2017
UPA authorizes surrogacy through a specific regulatory framework that seeks
to protect intended parents as well as persons serving as surrogates. Regulating
in ways that attend to the interests of individuals serving as surrogates does
not mean that those individuals are parents of the child. Instead, the
intended parents are the child’s parents by operation of law regardless of
whether the child at the end of the process is the child they thought they
were having or wanted. But the person serving as surrogates have procedural
rights at the outset, including required independent legal representation and
they maintain bodily autonomy rights during the course of the pregnancy,
including the decision whether or not to terminate. Even though I focused on state
legislative solutions here, reform will likely require constitutional oversight.
In fact, the UPA explains to state lawmakers that their existing laws may
be and in my view are unconstitutional in light of the requirement to treat
same-sex couple’s families equally. Given the current Supreme Court that we have
and dominate frameworks of equal protection and due process, judges are
unlikely to appreciate, at least the judges on our Supreme Court are unlikely
to appreciate, constitutional problems that a biological and gender
differentiated framework of parentage presents. These questions merit close
scrutiny and other work I argue that properly construed the Constitution
protects non biological parents who have established parent-child bonds worthy of
respect and recognition, but I won’t make that argument here. I just want to close
with an observation. As I mentioned yesterday, the 2017 UPA also includes
provisions that seek to incentivize non-anonymous gamete provision and that
require medical information of gamete providers to be collected and available
to parents and children. The UPA has been designed by and is being pushed by those
of us who advocate for LGBT families. Other alternative family arrangements
are also important to the folks who are
working on the UPA. Folks in this room, I think we’ll have to think about the
Alliance’s that you want to make and the consequences of some of the arguments
that are being made. So will LGBT groups and those of us working on LGBT
parenthood be working in coalition with you or will we be working in opposition?
Will reproductive rights groups be working in coalition with you or in
opposition? And I think the UPA is an example of coalitional work, but I’ve
just heard a lot in this room that move in different directions and I just
thought it’d be productive to have some conversation about that as well so I’ll
stop there. [Audience Applauds] Woman 1: Thank you, um, I thank you for your talk, um,
even though it looks like it’s moving in the direction of progress, the parentage
laws still seem to really be incredibly gender, um, grounded in gender. How do you
foresee the courts to view transgender parents as they relate to their
non-genetic offspring or people that don’t identify with gender, they them, and
then, to continue speculation, what about relationships that observe more than two
people, as with polyamorous individuals, and I’m not quite sure what the laws are
as far as recognizing that kind of marriage or.. [pause] NeJaime: Yeah. Woman 1: [conscientiously] I’ll stop talking. [Audience laughs ] NeJaime: No so those are two fabulous questions that are actually very much on the radar of
what we’re doing. So one virtue of moving parentage law towards gender neutrality
is addressing the needs of trans parents. So there’s a very troubling case
from Maryland in which, um, a trans person, who’s not genetically related to the
child, says I’m the parent of this child and I’ve been parenting this child and
this person was sex assigned at birth female but identifies as male and
said I satisfy a presumption of paternity because I’ve held the child
out as my child. And the lower court had said, no, you’re not a father, you would
have to be a mother, and you’re not a mother.
And the Maryland High Court fortunately reversed that decision and, said, adopted
a view that one can become a parent if one has established a parent-child
relationship that the other parent consented to and that the child now
understands that person as their parent, so we got a good result, but the gender
neutrality move would get away from this, which is to say there’s multiple ways to
establish parentage and, regardless of gender, people can establish parentage in
that way and, so, the Uniform Parentage Act, when you do a uniform act this is
through the uniform law commission, you’re trying to do something that
legislators will adopt and you’re thinking of legislators not only in
Connecticut and Massachusetts but also in Arkansas and Louisiana. And so you
want to be careful about how you do it, so, it’s still one section of the UPA
uses the term ‘person giving birth,’ but other sections use ‘woman giving birth’
and use woman and man. As we rolled it out in different states, so I’m working
on the bill in Connecticut right now and we’ve gone entirely gender neutral, and
the Vermont bill, that now is law in Vermont, has gone entirely gender neutral,
so it doesn’t use the terms man and woman. It uses terms person or individual,
so it’s always person giving birth which means it can include a trans or
non-binary person, and all other categories are about person. It still
does, um, it still does have a marital presumption that comes from the person
giving birth, so in that way it still is gendered, but it’s trying to be as
inclusive as we could imagine at this point. The other thing that this, that you
raise, is a really important issue: multiple parental recognition. And so we,
so the uniform parentage Act includes a provision for multiple parent
recognition. So again this is always a careful dance as you’re trying to get
state legislators, who generally aren’t thinking about the things we’re thinking
about and don’t want to move too quickly, to do things and so, when you do a
uniform act, you can nudge them in ways, and so one way we nudge them is we have
all these ways you can establish parentage and then, there’s this, there’s
a provision on, well, what happens if you have more than two people competing for
a claim to parentage. And traditionally courts have, that’s come up a lot. You
have a husband, who’s not the biological father, then the biological father, and
they compete and courts have decided. And we’re saying, here’s how you go about
doing that, but we give two alternatives: one alternative is: a child can only have
two parents. And the other alternative is: a court can recognize that a child has
more than two parents if not doing so would be detrimental to the child. And
you bracket those, this is technical, but, if you just give it to them and you make
one the default option, states are just going to go with the default option. But
if you make them have to choose then they have to have a conversation about
it. So we made them have to choose and so
far every state that it’s adopted it has chosen the multiple parent recognition.
And California was the first state to do it so it’s modeled on California’s Act and
it came out of a dispute involving a same married same-sex couple and a
biological father in which there were three claims to parentage and the court
wanted to recognize three parents but couldn’t. And so now states are starting to do this and they have these laws and
recently there’s a decision from a California Court in which a woman, has a,
is married to a man, has a child with a, um, through an extramarital relationship
with a co-worker of hers, but stays married to the man. The husband knows
that he [the husband] is not the biological father. They raise the child together but the other
man also has a relationship to the child. The child’s autistic and they’re all
participating in developing the care plans for the child and supporting the
child and the California Court said this child is fortunate enough to have two
caring fathers and has three legal parents and recognize all parents. And
we’ve separated that from the question of relationship recognition, which is
more controversial for people. So, in order, people can get behind the idea
that it supports children’s welfare to recognize their parents as legal parents,
and you can do that without saying that if three people are in a polyamorous
relationship that they have to have legal recognition as a three-party
relationship, let’s say. And very recently, a court in Newfoundland, in Canada, has
had a polyamorous family come before them, not asking for legal recognition, as
a, as a throuple, but asking for legal recognition of the parent-child
relationships, and the court granted that. [Affirming] Yeah. Woman 2: Hi, so can you talk a little bit about
reconciling legal recognition for non-biological parents with accurate
record-keeping, specifically as it pertains to like birth certificates? NeJaime: Yeah,
actually I think someone else in the room can talk more because we were
talking about this before, so I think there has to be a lot of work done on
educating people about what birth certificates do and should do. There is a, uh,
there is a impression that people have that birth certificates establish
parentage but they don’t; they’re just evidence of parentage, so if you look
back at early lesbian couple parenting cases, and all, in almost all of those
cases, both women were on the birth certificate, it didn’t matter to the
court. You know, you can put whatever you want on the birth certificate, it’s not
establishing parentage. But people think it does establish parentage, so I think
one thing is educating people so that they see the birth certificate as something
other than establishing legal parentage, and then having a conversation about
what information would be helpful on a birth certificate. And right now, it’s not
the case that the birth certificate records biological paternity, at least,
and maybe biological maternity in some circumstances, especially because states
maintain, some states have laws that require that when a married woman gives
birth, her husband be listed on the birth certificate, even if they’re both saying he’s not the biological father. And so it also is
going to require law reform efforts. Now, I think one way to do this is that, what
I’m proposing is parentage reform which happens in the parentage code in family
law, and birth certificates are regulated as a matter of vital records or vital
statistics, so in Connecticut, for instance, we have
separate regulations on birth certificates, and you can keep those
regulations and, say, let’s say that there’s a replacement birth certificate
if the child’s born through a gestational surrogate, but separately have regulation
of parentage. But in many states, unfortunately, because there’s not a
lot of parentage regulation, the courts have looked to the birth certificates
regulation as relevant to interpreting parentage law. So I I actually am not
super hopeful because I think it’s a long term strategy of educating people
about what the purpose of birth certificates are and what they should be
in a world in which we’re evolving. Man 1: Hi, thank you, um, so I think one problem that
arises when you, a potential problem that arises when you increase the possible
grounds for parenthood is you increase the possible grounds for conflict, and so
I’m curious what would happen in the case where you had a traditional
surrogate who then changed her mind, right, so you might think that this
person has a genetic connection, has a, um, has formed some kind of relationship to
the gestational process, but wasn’t, at least initially, an intentional parent. And how that might differ from a case when you have just, uh, when you have a
genetic surrogate, right, and how you might disentangle those kinds of cases.
Kind of seems like biological factors might become relevant again and
differentiating between gestation and genetic connection and things like that.
NeJaime: Yeah, so let me just sort out terminology, so, so in parentage law, genetic
surrogate and traditional surrogate mean the same thing, which is the surrogate is
genetically related to the child. Um, gestational surrogate is tend to be used
to mean the surrogate is not related to the child, she’s, the child is genetically
related to either an egg donor or the intended mother, or intended parent. So, as
a matter of parentage law, what’s happened over time is that we’ve tend to
treat a gestational surrogacy as something that we allow and regulate and
genetic surrogacy or traditional surrogacy as something that we don’t
regulate. And so traditional surrogacy has been channeled through the adoption
process, meaning that the surrogate would be the legal mother at the moment of
birth and she would have to engage in the relinquishment process and allow the, um,
and the other woman, the intended mother, would have to adopt the child. That would
normally be a stepparent adoption because her husband would be the
biological father. I actually think that there’s not principled grounds to
distinguish between genetic and gestational surrogacy for purposes of
parentage. I, uh… The gestational surrogate, as an empirical matter, we see that people
who serve as gestational surrogates also serve as genetic surrogates and don’t
report differences in their experience, but there’s very little work being done
on this. And from a legal perspective, what’s
mattering in this, if intent is what’s mattering in the gestational context, it
doesn’t, I haven’t been persuaded that the pairing of gestation and genetics
somehow makes it something we should treat differently. And I worry that
actually treating it differently only reiterates the problem I see, which
is saying that women are inevitably naturally driven to care for the
biological child. And if you look at a lot of the anti-surrogacy work, it’s, well…
Harold Cassidy, for instance, is the leading anti surrogacy advocate, he also
is the leading, one of the leading, anti-abortion advocates, he did the South
Dakota abortion law, and he litigates the surrogacy challenges in New Jersey and
California. And these arguments about regret and the natural bonds between
mothers and children I think reiterate stereotypical
arguments that disadvantage women relative to men and maintain
distinctions between men’s roles and women’s roles, in the family, in the
workplace. And so I think, actually on principled grounds, in both cases of
gestational and genetic surrogates, the intended parents should be the legal
parents and the surrogate’s rights should be protected but that right does not
include a right, a parental claim. And I think if you had more certainty around
it, you actually wouldn’t have these kinds of, you wouldn’t have the same
sorts of conflict. That being said, but, the amount of cases that actually result
in conflict are like this [tiny] and where real conflicts are when parties break up and
then they fight over their kids. Man 1: Thank you. Woman 3: Hi, um, I just wanted to ask a question, um, I
was actually born in Connecticut, conceived in Connecticut, so my question
pertains to birth certificates, so I know you’re talking a lot about like, um, same-sex
relationships. My parents were hetero, my [emphasis] legal father, um,
my parents divorced when I was a baby. My mother remarried when I was 2. My stepfather is the one who raised me. My
legal father had actually tried to do the opposite and threatened he was going
to tell everyone that we were donor conceived so he didn’t have to support
us. So, in my case, I would rather my stepfather be the parent on my birth
certificate. What are your thoughts on that?
NeJaime: Yeah, so um, so your father, so, the, your legal father, under Connecticut- Woman 1: [interjecting] Hi, I’m sorry, he’s deceased now, too. NeJaime: Right, okay, so but your legal father under Connecticut law, the fact of donor
conception would not have given him a basis on which to deny legal
responsibility under Connecticut law that would have existed at the time.
Woman 3: [inaudible] NeJaime: Yes
that was true and unfortunately Connecticut law is the same and still
says husband and wife and that’s all it’s about. But yes that’s what it would
have done. Step parents are not legal parents and can adopt the child and, did this, can adopt the child only if the non-custodial parent, which would be your
legal father, consents and relinquishes his parental rights, aside from the
ability for you to inherit from him. And if he doesn’t do that, then the step
parent has no basis on which to form a legal parent-child relationship. [taking question] Yeah?
Woman 3: Just to follow up, I learned two years ago I’m donor conceived, so this is
like newfound information, so, as an adult can my stepfather adopt me? Yes, you, so as
an adult you can consent to being adopted by your stepfather. There are
actually a lot of cases involving… [correcting himself] not a lot. There are cases involving assisted reproduction in which the intended parent and the person who actually has
raised the child does not have a legal relationship to the child. Baby M, the
first big surrogacy case, is an example of this. And Melissa, baby M, when she
turned 18, had her mother adopt her. When you’re an adult you can decide someone
can adopt you. You are eligible for adoption, and he can adopt you, and you
can form that legal parent-child relationship. Woman 3: [inaudible] NeJaime: And there’s good reasons, there’s actually good reasons to do it. Yeah. Man 2: Just quick question. There’s no way to do
this up before the baby is born, like a prenuptial? Because there’s uh, the pre
birth, so they could decide if they break up, uh, who takes who. Can you do
something in advance? NeJaime: So you’re saying before they actually use any genetic
material or… Man 2: Before they have the baby. NeJaime: But what are they deciding? Man 2: Well, before the… Who’s gonna take
what if they break up or they share something. Is there a way to do it? NeJaime: But whose the they, the child or genetic material? Man 2: Well I’m just saying in advance, can you do it in advance to take care of it legally. NeJaime: Yeah, so, prenuptial agreements
that include care for children are void as against public policy because we
actually, we, so you can agree to lots of things in your prenuptial agreement but
you can’t agree to decisions about child support or child custody because the
state has an overriding interest in the welfare of the child and so, uh, so those are
not enforceable. It’s also true that if you get divorced and you enter a
separation agreement, you can agree to everything on your own in private, like in a
private agreement. That’s a contract about how you divide assets and what
spousal support is. But anything you agree with respect to children has to be
approved by the court and entered as part of a decree so the court has
continuing jurisdiction because the state has this overriding interest in
the welfare of the child. Man 2: Is it mostly… the main thing is financial, then? NeJaime: Uh, well, I mean, why the courts want to do Man 2: Why do these have these arguments? Is it mainly financial? One wants it, one doesn’t want it. NeJaime: Oh, um… Man 2: Couldn’t you cover that already in advance and that takes, probably takes, care of most of the problems, I would
think. NeJaime: Yeah, I mean people argue about lots of things relating to children when they get divorced or breakup, [audience laughter] so, and I mean the other thing to be aware of is
that often financial arguments are a way to alter other arrangements so, um, so, it’s
sometimes pretextual. There are a lot of disputes now about embryos when people
break up and that’s a question that continues to be in dispute and courts
have not figured out how they’re dealing with that in a uniform way. Man 3: Alright, uh,
professor I’m gonna come out of left field here so just bear with me. NeJaime: Okay. Man 3: I am donor conceived, I was raised by a single mother by choice, I don’t legally have a
father. I’ve also been in the United States Navy for ten years. So here’s my
question. So on my paperwork, my mother is legally my mother. She’s
also biologically my mother. If I go down, if I get killed in an accident, I die
in a plane crash, the Navy is required, legally required, to
send someone to her house in uniform and tell her that. NeJaime: Yeah. Man 3: It’s very
unfortunate. They’re not required to tell my biological father that, obviously he’s
not legally my father. Now, he is gonna be informed because I put him on there. I
actually. because I because I was able to find out who he is. I put him on my
paperwork. Now, he’s not primary next of kin and he’s not a beneficiary but he is
on my paperwork, and I wrote a letter, saying, that he is, you know, yeah if I go
down, I get killed in action, you know, please send the letter from the US
government. So I kind of wanted to hear your take on this. Not only for that but
also, ’cause, see I sat down with my legal officer about this and what she was, um, I ran a scenario by her. In similar scenario, if you had a man and a woman have a
child, a couple years down the road they divorce, stepfather comes in and legally
adopts the child to say the biological father
relinquishes all custody. If that child ends up joining the military and
he gets killed in action, they’re not required to tell the biological father
he goes down. They are required to tell the mother and the stepfather because he’s a legal
father but not the biological child so, I, I got her perspective, the legal of my
ship, but I kind of wanted to hear your perspective on that. NeJaime: Yeah, so, I should say in response to all these I’m not giving legal advice. [audience laughter] So, um, it is the case that what, um, what generally
we’re trying to do is track legal parent-child relationships and the… The
assumption is because the person with the legal parental status is the
person who’s responsible and has supported that individual and so, for
instance, with the stepfather who adopts, he’s the person who’s taken on
responsibility and so he’s the person that’s deemed the… the person who needs
to know. And so we, as a general matter, just have it turn on the legal status. And so you can have other people in your life who you think should be notified of
particular things or are important people in your life, but they don’t take
on the status of legal parent and it sounds like, you know, the biological
donor is not a legal parental status. The the weird thing in our law is that we
don’t have much of an in-between between parents and non parent and I think we’ve
struggled in this room about terminology and how to think about things. And it would be
useful for, actually, us to develop ways of recognizing certain relationships
that are not parental relationships but also aren’t nothing. And so we basically
just draw a distinction between parent and legal stranger and, you know,
grandparents we’ve started to do some visitation stuff that gives them some
status. There’s some step parent visitation stuff in some states, like
California’s deaf parent visitation statute. So you could imagine that we
eventually come up with some way of talking about that that has that person
be someone other than just this other person who should be notified but right
now we don’t. Woman 4: Thank you very much, so my… Yo’ve given us
a lot of food for thought and and I think we need to be sensitive, of course,
as a group, to how we can be received by other fields, by other industries such as
the legal fields or even the ethics field. How would you like donor
conceived people, since our voice hasn’t been heard yet. What, how do you see that
happening in… in these legal cases that come up, because we want to be sensitive
to all families and in all different types of families and I think we also
have different points of view. Like we’re not going to speak with one voice, we’re
going to have a lot of voices. But when we do represent donor conceived people,
you know, if we had a thousand donor conceived people from a Facebook group
and we were able to say 600 or 700 of them felt in this bucket and another 200
felt this way, would that be helpful to your field? And the other question I have
really is about the numbers of donor offspring siblings, you know, in… if you
could just speak to the legal ramification if that’s also come up in
your thinking. Thank you. NeJaime: Yeah, so, I do some work on long social movements but I,
so, my view is probably more law centered than some other folks in
this room, so I think you should take it with a grain of salt, but if, I mean if
what I would do is actually try and organize in a way that can, even, I mean,
all social movements have a diversity of views and part of why a movement becomes
successful is because they’re able to recognize the diversity of views within
their ranks but also produce agenda that people can get on board with. And I think
I would advise being able to articulate some set of reforms that seem like they
have the buy-in from people in your group and also are sensitive to the
interest of those that you think you can work in coalition with. And I think,
so you know, I’ve heard both the ban all donor conception and kind
of reform agenda that Erin suggested, and one of those is going to land very
differently in the world of law and policy, and so thinking about how to
articulate that I think is really important. On donor siblings, so Naomi
Cahn who’s at GW is someone you should probably seek out. She’s a family law
person and writes about donor siblings. Siblings is not really a status in law.
There’s also a legal historian, Jill Hasday, who has an article called siblings-in-law, to show that basically we don’t really have, like, you don’t have legal, particular legal rights. There’s some stuff in foster care and adoption
regulations about keeping siblings together, but otherwise there’s not a lot
of legal status as between siblings. And so, that might actually offer you
opportunities because it’s something that hasn’t really been elaborated in
other settings. Woman 5: So, is this on? Thanks very much it was very interesting and I heard a lot about the history of the law, but I was trying to get a sense
of what your view is and it seemed to me that you were thinking, that you were
arguing for, or believe in an intentional view of parenting and first
of all, is that accurate, and second of all, if that is accurate, what on your
view counts as intent. NeJaime: Yeah, so, my view is not, uh, my view is actually more
functional than intentional and when I say functional, in the family law world,
that means that what we’re valuing as a legal matter is established parent-child
bonds and is informed by work on child development about, from a child’s
perspective, who do they understand as their psychological parent. And so partly
why I think biological connection should be a basis for
parental recognition is because it’s a good proxy for functional parenthood. So
people’s social expectations tend to be that people who have biological children
should parent those children and so that is often the case that the person who
has a biological child ends up functioning as the parent of that child.
So I’m okay with biological connection being a basis for parental recognition,
not because I think there’s an inherent importance over other forms of parental
bond. And intent is another way so, de facto parenthood is the legal, um, the legal
term used for functional Parenthood and a de facto parent standard would say a
person can establish their parental relationship as a legal matter if they
show that they formed a relationship with the child that’s parental in nature;
a bonded and dependent relationship. They engaged in consistent caretaking of the
child without expectation of financial compensation and it’s in the best
interest of the child to continue that relationship. And intent, for me, offers a
way to settle some of that at the outset because it’s good for children to have
stability about who is their legal parent and makes decisions over them and
so I don’t think that, if biological connection is producing parentage at the
outset, that there shouldn’t be an analogue for those who form
non-biological parent-child bonds and so intent is a way to get at that. So it’s
not, I am not, there are scholars who defend an intentional view as the view
of parenthood but mine is using intent as a predictor of functional parenthood
in the same way that biology does. Man 4: Is there any legal system that actually
recognizes the notion of progenitor or procreator that doesn’t carry any
implication of familial life or relations but could then go on to develop family laws on
how a progenitor can establish the family relations that we have to say are
social. It seems like gratuitous, I mean, has that ever been…? NeJaime: Not that I know of in contemporary society. I
mean, in some ways, the early common law system in which men who had non-marital
children were made responsible financially but without any legal
relationship, that was essentially saying you produced this child and we’re gonna
hold you responsible for the child rather than have the state be
responsible, but you have no legal relationship to the child. I mean that doesn’t seem
like a good model but that’s sort of something pulling apart progenitor from
parenthood, but not something in contemporary law. Woman 5: So I don’t have as much
of a question as a kind of question for the room or a thing to think on. I really
liked what you were saying at the end of, we, like, strongly need to think about who
and where we want to build allies and I think that is particularly apt
considering, like, the reaction of some people earlier to things that were said
earlier today, and thinking about that there are many different voices in this
room, and we cannot speak as one voice. We need to be mindful of all of the voices
and remember that the people that were able to come here today are a very
select group who had access and the knowledge that this was happening, right?
They’re not, we’re not speaking for all donor conceived people and so if you
reacted positively to stuff that was said today or negatively to stuff that
was said today, like, that doesn’t, we need to think about where we want to ally. And
like, I think if we listen to everybody, we can, there are so many points of
connection that we can make between our viewpoints and if we focus on [emphasis] those, we
can push forward. Um. But if we are not listening to each other, we’re not going
to find those points of connection and large parts of our community are gonna
be left behind. Like I have queer parents and I [emphasis] deeply
did not resonate with the things that were said this morning, and I felt very
unheard. So I just, you know, like, there are stark differences between what you
were saying about, you know, having polyamorous recognition of families or
not even polyamorous but just multi parented
versus concepts talked about earlier of having too few or too many parents and
the idea that, you know, pushing that… that two parented ideal. That’s not a ideal
that I hold. And I don’t think it’s necessarily something that is a super
strong point here for everybody that we need only two parents. I think we all can
agree that we all have multiple people in our lives that are important and, like,
that’s not something that needs to divide us but it will if we don’t
recognize that it’s a dividing point. [light audience applause] NeJaime: I mean, I’ll just say on that point, I
think that’s exactly right and I… I actually think that some of the things
that are said, um, people are saying them without understanding what the
consequences of them may be. Woman 5: Totally, that’s what I’m saying. NeJaime: And so think very carefully about what the
consequences of certain arguments are so that you see… like, I actually think, yes,
some of the consequences would be unintended and, so, how can you think
through that. Yeah. Man 4: Hi, so I actually wanna respond that I’m so glad,
thank you, I absolutely agree with the notion of breaking down these
heteronormative ideals of the two parents. I am fully in support. It’s
interesting to hear your perspective and your perspective as well because I am
LGBT, I’m raised by a single mom who’s LGBT and I was also additionally raised
by two women who are LGBT who were my godmothers. And I am fully against almost
every form of donor conception and I’m running into similar things for, now, I
feel like I’m being labeled homophobic when my views are already contradictory
and confusing enough, that being told, like, well how are you gonna work with us.
Like, how are you gonna work with me. How many people who are queer and donor
conceived are being asked their views in the first place and are they on these
panels that you’re working with. So I just want to echo, like, I’m sure there’s
more I can do to be aware and also, like, it feels hurtful to be told or subtextually told that I’m homophobic because it’s confusing enough. I also
am single mom so I also had a question around that, where: is there any chance
for the kids to be able to have a voice and what they want to choose in my case. Like, I also did not have a father on my birth certificate and I was also a
survivor of abuse and at no point did I have the ability to make a choice but
what was best for my own health. NeJaime: So I’ll just say something, now we’re like getting into… so I actually took a lot of what was said as, um, people not saying that someone was
being homophobic as much as saying that there are consequences of arguments that
get made that have implications in the lives of people who feel that their
equality comes with a certain set of entitlements that they’re arguing for.
And I, so I will say, that I think it’s going to be, to my mind, given the LGBT
advocacy world, impossible to take the view that all donor conception should be
prohibited and have support from LGBT family based organizations. And that
might just be a fad but it’s it’s worth, I think, talking about what the costs of
that are and why one might want to proceed in particular ways. And, yeah, I
mean, the other thing, I do think it’s powerful to frame… to frame the case in
terms of children’s rights or the rights of people who aren’t part of the process.
I mean, one thing that you see in American law is rights are framed in
very adult centered terms, so I wanna, I guess, the only thing I can say from my
perspective, is that it’s a powerful, um, it’s a powerful device to speak to people
about your experience and it resonates with people. It’s not a powerful legal
tool because our courts have been incredibly hostile to the idea that
children have rights that should be enforced and instead we have the strong
view that parents are trusted to act in the best interests of contemplated and
existing children. And so we defer in ways too great to the rights of parents. But that does, and this Supreme Court is not going to change that, but it doesn’t
change the it does not change the power of that
as a way to speak to people because that I think is deeply powerful. Velleman: One last
question and then we’ll take the coffee break. Woman 6: I’m totally changing the subject, um, so in regards to birth certificates just
being used as evidence in Australia, in Victoria, I believe the birth
certificates now indicate if someone is donor conceived, and you have to request
that birth certificate when you turn 18. So it’s still not a guarantee they’ll
learn that but do you see it as a possibility, probably on the state level
in the United States, that we could add an indication that does not afford any
legal rights to donors but does allow the children to find out that they have
a donor. [light audience applause] NeJaime: Yeah, so, I guess I’ll just go back to something I was saying yesterday,
which is that I think part of it is that the… the claims sort of land in a world in
which these things have meaning and so, um, like, the only Supreme Court case that
has been dealing with same-sex couples’ families as parents is this case Pavan
versus Smith from a couple years ago in which the US Supreme Court told the
state of Arkansas that it has to issue birth certificates to lesbian couples
that include both women because Arkansas law requires that when a married woman
gives birth to a child the husband be included regardless of whether he’s the
biological father. And so what that means is birth certificates have become an
issue for fights over the status of LGBT people. And the state of Arkansas
well understood that one way it could resist Obergefell and block LGBT rights
was to use the birth certificate. So long as that’s the case, birth certificates
have meaning that they otherwise might not have, right? And… and, also, donor
conception has meaning that otherwise might not have and so I think it’s
important, I think it’s entirely possible, but I think it involves less of the sort
of legal technical stuff and… and more about being able to speak about it in a
way that maintains respect for people’s various
forms of family formation and treat them as fully belonging and also centers the
rights of children to information. And I think, like, the open adoption movement is
probably a very good model for looking at how successful something like this
can be. [taking question] Yeah? Woman 7: Yeah, sorry, just a factual answer to the question is that starting in the 1990s… Birth certificates are by state. They vary by state and have different information on them depending on the state. And starting, sorry, starting in the 1990s
a new version of the birth certificate was rolled out that states had the
option to adopt that had a checkbox. Whether, first, whether you used assisted
reproduction for this this pregnancy and then if there was, there were, donor
gametes were used. So depending on where you were born and what year you were
born in, that may have been in place. Not for most of people who are over say age
25. New York City, for example, has its own birth certificates and they didn’t adopt
this until the 2000s, so you can check with your state and it’s on some births and
it is a self-reported thing. Woman 6: Is it a voluntary thing? Woman 7: It’s voluntary but they have they’ve found
that it’s it’s pretty valid. People have been pretty, I mean, as far as they are
able to validate this, it’s been validated pretty highly. Yeah, so the
sensitivities in the 90 something percent. So that’s a reform that was put
into place and I don’t know which states have adopted and which haven’t at this
point but I think it’s pretty commonplace. Velleman: Okay, we will reconvene at
3:30. Thank you very much guys. [audience applause]

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