Spartan Lawyer Summer 2018
MELANIE B. JACOBS
Professor Melanie B. Jacobs is an expert on family law, advocating for the legal recognition of non-traditional families. She has presented on this topic at global conferences, and has a number of publications forthcoming in 2019.
She was recently honored for her excellence in the classroom with MSU Law’s 2018 Donald Campbell Teaching Award. She also serves as MSU Law’s Senior Associate Dean for Admissions and International Programs.
“Are you my mother?”
That was the question a baby bird asked a kitten, a hen, a dog, a cow, and a car in a children’s picture book in 1960. Of course, we, the readers, knew the answer. Back then, parenthood was fairly easy to define. In 2018, our answers aren’t always so clear.
The “Leave It to Beaver” ideal of the American family – a married father and mother, both of whom are biologically related to their children – doesn’t represent the reality of a growing number of American families. In the Cleaver household, it was clear that June and Ward were the parents, and they enjoyed all the standard legal parental rights. Then, parentage was easily determined through someone’s status: birth mother, genetic parent, or through marriage.
As more couples – straight and gay – use assisted reproductive technologies to have a child, defining who is mom and dad is not nearly as straightforward as it was for the Cleavers. Status based parentage does not make sense for many non-traditional or non-nuclear families.
Imagine a scenario where a married woman serves as a gestational surrogate for another couple, who created an embryo through in vitro fertilization. Status based parentage assumes the surrogate is the mother and her husband is the father. But that doesn’t make sense. Status based parentage does not consider intentional parentage.
In the gestational surrogate example, the couple who initiated the surrogacy are known as the intended parents. Intentional parenthood means that parental intent at birth determines all parent-child relationships: the person who intends to parent the child and engaged in actions that resulted in the child’s birth (such as hiring a surrogate) is the child’s legal parent. It’s possible that the intended parents are the genetic parents or that they have no genetic connection to the child: they may have used sperm and egg donors along with the gestational surrogate. Regardless of their genetic relationship, many scholars – including me – argue that intended parents should be recognized as the child’s legal parents at birth.
Many family law scholars support intentional parenthood as a way to determine legal parentage for children born through assisted reproductive technologies, and the 2017 Revised Uniform Parentage Act includes many provisions that recognize intentional parenthood as an alternative to status based parenthood. I have advocated for the use of intentional parenthood doctrine more broadly – for instance, if a woman has a baby with help from a sperm donor and her female partner plans to raise the child with her, intentional parenthood provides a legal basis for the partner to have legal parental status. In this way, intentional parenthood promises greater equality for all parents, regardless of class, gender, sexual orientation, or marital status.
Intentional parenthood also makes it possible to recognize more than two legal parents for a child. Several states, including California, have enacted legislation that permits a child to have more than two legal parents if it is in the child’s best interests. Suppose a lesbian couple wants to use a known sperm donor and wants him to play a parental role – intentional parenthood provides the means by which all three individuals can have their rights recognized, which, in turn, provides greater financial and emotional security to the child.
But intentional parenthood is imperfect. Circumstances change. People’s “intent” changes. It’s hard to find one rule that fits all family situations since families are so varied.
So, it’s complicated. And makes for great class discussion and scholarly inquiry.