Volume 101

Jeffrey A. Parness

Assisted reproduction births in the United States are on the rise. These births can prompt parentage rights at birth in the “care, custody, and control” of children. Here, more than with children born of sex, parentage need not depend upon marriage or genetic ties. Rather, at-birth parentage often depends on consent, parental-like acts, or intentions. Congress has not spoken much on childcare parents at birth. The U.S. Supreme Court has generally yielded to state lawmakers, be they legislators or judges, on determining at-birth parentage.

State lawmaking has prompted significant interstate variations in and outside of artificial insemination. State laws differ on the import of marriage and genetic ties. Laws differ further on parentage arising from insemination into the vagina, insemination into the uterus, or implantation of fertilized eggs. As written, laws now also differ on parentage arising in same sex couples, opposite sex couples, and single intended parent settings. Further, laws differ on the nature of any necessary parental-like acts and on the proper forms of consent (including on the “record,” express, and implied). Finally, current laws distinguish between surrogacy and non- surrogacy births, as well as between genetic and gestational surrogates.

There are a few limits on at-birth childcare parentage laws arising from U.S. Supreme Court precedents. Additional limits arise in some states under state court precedents founded on independent constitutional interpretations. Separation of powers principles have prompted broad state general assembly discretion, with little room for state non-constitutional common law developments. Upon reviewing the limits on state lawmaking, this Article surveys current laws on at-birth childcare parentage in artificial insemination births. It demonstrates state usages of the three different Uniform Parentage Acts and the significant interstate variations. This Article concludes with suggested law reforms including changes in the laws on genetic, voluntary acknowledgment, spousal, non-marital, non-surrogacy, and surrogacy parentage.

Full article available here.