The Interplay between Genetics, Procreative Intent, and Parental Conduct in Determining Legal Parentage

THE INTERPLAY BETWEEN GENETICS, PROCREATIVE INTENT, AND PARENTAL CONDUCT IN DETERMINING LEGAL PARENTAGE Deborah Wald, Esq., San Francisco, U.S.A. Our communities are increasingly populated with children for whom legal parentage is unclear. The three primary factors influencing legislative and judicial determinations of legal parentage tend to be: genetics, procreative intent, and parental conduct. In the "traditional" family, all three factors generally coincide in the same adults: the genetic parents have intentionally conceived their children (or at least that's the theory), and will be acting in the role of parents with regard to those same children. The interesting legal and social policy issues arise when these three factors don't point to the same people. This article will explore these issues with regard to two specific categories of children: (1) children conceived with the use of assisted reproductive technologies, including those born to same-sex couples; and (2) children born as a result of extra-marital affairs. With regard to these two groups of children, this article will examine how courts have determined who should be recognized as legal parents and will consider whether it is in the best interests of children to recognize more than two legal parents when the children are intentionally conceived and/or successfully parented by more than two people over a period of time such that full attachment occurs. I. Establishing Parentage in Families of Choice: A. Children Conceived Using Assisted Reproductive Technologies: In the last twenty years, advances in modern medicine have made it possible for many people previously considered infertile to conceive and bear children. In the simplest case, this involves in vitro fertilization of a wife's egg with her husband's sperm, with the resulting embryo transferred back into the wife's womb for gestation. In this scenario, the husband and wife intentionally are procreating children conceived of their own genetic material and -presumably