Intentional Parenthood’s Promise: Redefining Legal Parentage for the 21st Century

Who is a legal parent? The answer used to be fairly straightforward. For instance, a woman who gave birth to a child was presumed the legal and genetic mother of the child. The increased use of assisted reproductive technology (“ART”) means that a birth mother may not necessarily be the child’s legal or genetic mother. Rather, a gestational surrogate may have been implanted with an embryo created by the sperm and oocyte of donors for a couple who wishes to parent the child. Courts have slowly begun to embrace intentional parenthood doctrine; that is, 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. Most states have laws that provide that a sperm or oocyte donor is not a child’s legal parent, but application of those laws varies due to jurisdictional differences, complicated facts, or variance with other laws. Although intentional parentage has been used in some jurisdictions to determine legal parentage, its embrace is far from uniform. Should all jurisdictions employ intentional parenthood doctrine? If so, what impact will (should) intentional parenthood doctrine have for families that do not use ART?
Melanie B. Jacobs
Professor of Law, Associate Dean for Graduate and International Programs, College of Law, Michigan State University
Recorded February 18, 2015