Legal Parents Research Articles

Medically-assisted procreation and the rise of off-center, new types of "parenthood": it is incumbent upon lawmakers to intervene.

Medically-assisted procreation (MAP) has given rise to a crisis in the traditional family model, made up of a mother and a father, and led to the births of babies who are genetically and biologically unrelated to their legal parents. Italian legal statutes ban such practices, which are punishable by law; yet there is currently no legislation aimed at governing and regulating the legal registration of children born through such procedures abroad. Italian jurisprudence, on the other hand, has acknowledged the right to parenthood for homosexual couples, ruling that the children thus born be considered legally bound to their social parents, by virtue of the affection-based bond, rooted in harmony and listening, that has been formed within the family setting, however unconventional it may be. The paper's author feels that an intervention from lawmakers is urgent and inescapable, in order to provide targeted legislation in such a sensitive realm.

Genetic Bodily Fragments and Relational Embodiment: Judicial Rhetoric about ‘Biological Truth’ in Paternity Disputes in the Family Courts

In an era of quick, cheap and readily available genetic heredity testing, the Family Courts are increasingly asked to determine legal parentage in light of DNA evidence. For the children involved, that can mean that their genetic bodily fragments are used to retrospectively ‘correct’ their legal kinship relationships and legal identity. Where genetic paternity has been misattributed, judges have erased children’s legal connections with misattributed fathers (and their kin) from birth certificates irrespective of any social and relational meaning that these relationships and identities may have accumulated. This article critiques the genetic thinking apparent in family law judgments on legal parentage. It draws on theories of embodiment to argue that judges use a rhetoric of ‘biotruth’ to engage with the child’s body only as genetic fragments. In reconstructing children’s ‘true’ legal parentage and identity from their genetic fragments, law disembodies children themselves, relating to them as evidence of a reproductive transaction in which men who did not get the genetic child they bargained for may be able to obtain a refund of child support paid. In doing so, the current model of legal parentage fails to engage with the children involved in these disputes as embodied and relational legal persons.

Cross-border and domestic surrogacy in the UK context: an exploration of practical and legal decision-making

This study aimed to explore UK intending parent’s reasons for cross-border and domestic surrogacy, their preparations for the birth and the practical and legal challenges faced after the birth. An online survey was completed by 203 participants, of which 132 had a child born through surrogacy, 33 were in the process of surrogacy and 38 were planning a surrogacy arrangement. The most common reason for pursuing surrogacy in the UK was wanting a relationship with the surrogate (43%; n = 17) and for conducting surrogacy in the USA was because of a better legal framework (97%; n = 60). Parents returning to the UK from countries other than USA experienced greater delay and difficulties in obtaining the necessary documents for their return. This study highlights the disparities in parents’ experiences of undergoing surrogacy in different countries, the frustrations some face in obtaining legal parenthood and the feelings of stress and anxiety this may cause. Whilst this is the first study comparing the experiences of people from the UK having surrogacy in different countries, the representativeness of the sample is unknown. The findings are important in identifying future directions for research, including assessing the impact of these early decisions and experiences for later parental wellbeing and children’s welfare.

Naar een juridische verankering van meerouderschap en meeroudergezag?

Abstract Towards a legal framework of multiple parenthood? A case study of Belgium and the Netherlands A child can have a maximum of two legal parents in Belgium and the Netherlands. This is a challenge for plus-two-parent families in which a child is raised by multiple parental figures. This article gives an overview of the (potential) legal measures taken to better accommodate plus-two-parent families, in respect of the recommendations of the Dutch Government Committee on the Reassessment of Parenthood.

The Quasi-Parent Conundrum

Although family law is very much concerned with legal parentage and its attendant rights, children are much more concerned with maintaining relationships with those who care for them, regardless of whether that person is a legal parent or merely someone functioning as one. What happens though if the child’s legal parent attempts to banish the quasi-parent from the child’s life? Doing so can be extremely damaging to the child. Nonetheless, parents do possess a constitutional right to make decisions about how to rear their children, including who may have access to the child. Trying to strike a balance between protecting the child yet also safeguarding the parent’s right is a daunting task. The Supreme Court has provided little guidance on this issue having issued only one opinion on the subject, Troxel v. Granville, and even it only obliquely deals with the subject of quasi-parenthood. Still, the states have relied on Troxel to craft a number of different approaches to the challenging question of quasi-parenthood. As Troxel nears its twentieth anniversary, however, a problem has emerged. Specifically, in implementing Troxel, the states have by and large treated the traditional nuclear family model as normative. This approach is problematic for two reasons. First, since Troxel was decided, the nuclear family has changed drastically. From the legalization of same-sex marriage, to the increase in divorce, cohabitation, and remarriage, fewer and fewer children are finding themselves raised by their two legal parents. Second, for a significant portion of the American population, including racial and ethnic minorities, the nuclear family model has never represented the way in which they typically structure their families, with children often being reared by members of the extended family. Thus, by premising the law of quasi-parenthood on the outdated and unrealistic nuclear family model, more and more children are unable to avail themselves to the protections the law of quasi-parenthood was intended to provide. This Article traces the history of quasi-parenthood, analyzing how the law has evolved into a current practice that is, much to the harm of American children, both short-sighted and under inclusive. The Article concludes with concrete suggestions for change—changes that will promote a legal standard that is less discriminatory and more reflective of the contemporary American family.

Transgender Family Law

Transgender people face unique issues in parentage, custody, and divorce cases. Many transgender people are raising children or wish to do so. This article examines the main legal issues facing transgender people who become parents by giving birth or impregnating a partner, through assisted reproduction, through marriage, by raising a child, or through adoption. In the past, some courts viewed a parent's gender transition as a sufficient reason to terminate parental rights. Today, the law has shifted to provide much more security for transgender parents, though significant bias still remains, particularly in divorce and child custody cases. In addition, many states have not yet fully addressed how to determine the legal parentage of children born through assisted reproduction. I analyze the legal landscape for transgender parents and spouses and offer critical suggestions to ensure that transgender people are able to protect their families and their parental rights.

Family Law Scholarship Goes to Court: Functional Parenthood and the Case of Debra H. v. Janice R.

Family law literature, while diverse in its exploration of contemporary families, also offers important threads of consensus. These strong points of coherence, when brought together with relevant case law, can be a useful means of advancing academic conversation as well as engaging directly with courts to shape law's development. In a field as complex as family law, myriad academic viewpoints on any given issue often make it difficult to imagine scholarly discussion having utility for courts. As we aim to show here, however, amicus briefs can be important vehicles for synthesizing literature, highlighting basic points of consensus and connecting family law scholarship to ongoing cases. (1) The Family Law Academics Amicus Brief The amicus brief reproduced here (the Brief') makes connection between family law theory and jurisprudence by synthesizing scholarly literature on and literally bringing it to court. The central issue addressed is how law should recognize parental rights of an individual who functions as a parent despite having neither biological nor adoptive ties to child. Legal recognition of functional parenthood, Brief argues, is intended both to counteract harm inflicted upon children by separating them from a loving parent (2) and to vindicate rights of functional parents. The Brief was submitted in 2010 New York Court of Appeals case, 14. v. Janice R., (3) in support of petitioner H. The petitioner had brought suit two years earlier in an effort to retain contact with child she had been raising with her former partner since child's birth. At that time, functional parents like did not have standing in New York to petition for visitation or custody as a result of 1991 high court ruling in Alison D. v. Virginia M., (4) in which court declared adults in Debra's position to be stranger[s] to their children. (5) Strikingly, forty-five family law professors from law schools across New York State came together to sign Brief. By collectively endorsing one set of principles for judicial recognition of functional parents, (6) they made a strong statement to court regarding importance of functional parent-child relationships and viability of according those relationships legal recognition. The amici presented this analysis in part to neutralize biological parent's attempt to exploit complex and sophisticated of family law literature. That parent, Janice R., had urged court not to wade into intricacies of adopting a functional approach to defining legal parenthood, (7) but rather to leave any change in law to legislature. Janice R. criticized what she perceived to be Debra H.'s inability to consistently propound one for granting standing to functional parents. (8) She emphasized divergent approaches of legislatures on a range of factors, including amount of time required before one can qualify as a functional parent, statutes of limitations for bringing a petition, and distinctions between petitions for visitation and custody. (9) She argued issue of functional parenthood was so complex--as evidenced by fact that the standards defining who can assert such standing varies widely from to state (10)--that any changes to New York's standard needed to be addressed by legislature. The family law academics countered those arguments by reinforcing that points of agreement exist in literature and case law upon which courts can and should rely in making functional parenthood determinations. The Key Features of Functional Parenthood To demonstrate consensus around functional parenthood, Brief draws on academic literature, American Law Institute's Principles of Family Dissolution, (II) and practices and jurisprudence in other states. …

So not mothers: responsibility for surrogate orphans

The law ordinarily recognises the woman who gives birth as the mother of a child, but in certain jurisdictions, it will recognise the commissioning couple as the legal parents of...

Some Legal Issues and Solutions Around Surrogate Motherhood

There are various types of legislation about surrogacy according to the cultural background, family law tradition and reality of each country, especially about whether to allow a surrogate contract, if so, under what conditions and who is to be considered as legal parents of the child born from the surrogate mother. However there is no statute nor precedent handling the surrogate motherhood issues in South Korea, though a lot of previous studies has dealt with these problems. The purpose of this article is, based on the prior academic achievements and the research results of foreign legislation, to propose a bill draft on surrogate motherhood for not only solving the situation of interest-conflicts between surrogate mother and genetic mother but stabilizing the legal status of the child born from the surrogate mother. The conclusion is as follows: (1) the effect of gestational surrogate motherhood contract should be recognized under some strict conditions on the qualification of surrogate mother and infertility of intent parents, etc.; (2) the surrogate mother who has given birth has the status of legal mother by priority; (3) one of parties to the contract can file a complaint for granting the status of legal mother to the genetic mother; (4) the surrogate mother may withdraw the surrogate contract within a certain period after the birth, in which case judges cannot decide the genetic mother as a legal mother.

Biological Citizenship and the Children of Same-Sex Marriage

In 2015, the Supreme Court ruled that states could not, consistent with the Due Process Clause, deny same-sex couples the right to marry. To allow otherwise, said the Court, would “harm and humiliate the children of same sex marriage.” Thus, it was hoped that marriage equality would provide greater security for the children of same-sex couples. And the need for such protections are increasingly important given that, with advances in assisted reproduction techniques, it is easier than ever for same-sex couples to become parents. Indeed, when it comes to procreation, same-sex marriages and opposite-sex marriages are becoming much more alike. But there remains an obvious difference between the two. Namely, same-sex couples are unable to procreate without the assistance of a third-party, meaning that although both parents in a same-sex marriage may qualify as legal parents, only one (at most) will qualify as a biological parent. But from a constitutional perspective, should that distinction matter? The Supreme Court, in both Obergefell and its recent decision in Pavan v. Smith has indicated that, when it comes to the governmental benefits associated with marriage, the answer is “no.” Nonetheless, within the realm of immigration law, the State Department is using the absence of biological ties against the children of same-sex marriage, and on that basis, denying them United States citizenship. Although nothing in the Immigration and Naturalization Act requires that citizens, in order to transmit citizenship, possess a biological relationship with their children born abroad, the State Department has begun denying citizenship petitions on behalf of children from same-sex couples simply because the citizen parent, despite being the child’s legal parent, is not the biological parent. This Article argues that the State Department’s approach is not only unreasonable and, thus, not entitled to Chevron deference, but more importantly, is an unconstitutional infringement of both the right to marry and the right to parent, as those rights have developed by the Supreme Court. In sum, the State Department’s practice provides a poignant example of both the ongoing discrimination and the challenging questions that remain, post-Obergefell, in the quest for true marriage equality.

A Study on the Role of Constitutional Court in Legal Parentage – Focused on Constitutionality of Article 844 Section 2 of the Civil Code from the View Point of Family Law –

A Study on the Role of Constitutional Court in Legal Parentage – Focused on Constitutionality of Article 844 Section 2 of the Civil Code from the View Point of Family Law –

Parenthood: Is the law in Nigeria fit for assisted reproductive technology?

This paper examines the legal aspects of parenthood and how it is, or could be, determined in Nigeria given the wide popularity and uptake of assisted reproductive technology (ART). It aims to establish whether the existing national laws can sufficiently protect the interests of the child who is born and of the consumers, with an emphasis on the determination of the status of the parents. It also identifies problems and proposes solutions with regard to the specific issue of establishing legal parenthood following the use of ART, either with or without state regulation. The paper concludes by recommending specific ART legislation that could help solve the problems, and advises Nigerian law-makers to pay attention to statutes from other jurisdictions as a guide.

Parental orders and the rights of surrogate mothers.

Obstetricians need to be aware of potential legal changes which may impact the doctor-patient relationship in surrogacy cases. Presently, English law recognises the surrogate as the mother. After giving birth, she may hand over the baby. The commissioning couple then apply for Parental Orders and become legal parents if the conditions in the Surrogacy Arrangements Act 1985 are met. This article is protected by copyright. All rights reserved.

Att göra det politiska personligt

This article analyses social worker’s assessments of appropriate same-sex parenthood in the case of second-parent adoption in Sweden, thereby investigating the governmentality directed towards same-sex parents and how this governing practise normalises certain discourses on parenthood. The material consists of interviews with social workers assessing second-parent adoptions, which have been analysed through a discourse analysis deploying theoretical frameworks on governmentality and heteronormativity. Great differences were found among which criteria were used to condition same-sex parenthood and the impact of social workers own perceptions of suitable parenthood and the purpose of the assessment process. Different standards for appropriate same-sex parenthood and heterosexual parenthood were apparent in the governmentality directed towards same-sex parents, where the legal parenthood of same-sex parents was conditioned by for example unemployment, overweight or a possible forthcoming divorce, conditions that clearly wouldn’t terminate heterosexual parents’ custody rights nor their legal parenthood. A juridical-biological hegemony was often dominating the social worker’s perception of “normal” legitimate parenthood rendering same-sex parent’s already existing social parenthood of little importance in the assessment process. Through the social worker’s assessments and the heteronormative discourses on suitable and desirable parenthood they imply, the state’s biopolitical strive were made visible. Same-sex parents were disciplined both in regard to their bodies, such as health and weight, as well as their way of life, such as their relations and economic resources. The governmentality directed towards same-sex parents thus demands self-governing practises and assimilation to the social worker’s both hetero- and homonormative standards in order to attain a legal affirmation of their parenthood.

„Macierzyństwo zastępcze” w aktualnym orzecznictwie Europejskiego Trybunału Praw Człowieka

Surrogate motherhood, known also as surrogacy, is a kind of civil law contract according to which one party – surrogate mother is obliged to bear a pregnancy and after giving a birth transfer all rights concerning a child to commissioning party. There are two basic types of surrogacy, of which gestational surrogacy has recently become more popular. By concluding gestational surrogacy agreement commissioning party oblige itself to provide an embryo no matter of its source, while surrogate mother is bonded only to bear pregnancy. The second type of surrogacy agreement, often called traditional, encompasses also surrogates obligation to provide an egg, due to this fact, as the egg donor, surrogate mother becomes also a genetic mother. Surrogacy is connected to a variety of serious legal problems among others: deciding whether this kind of contract should be legal or banned and resolving an issue of a legal status of a new born child, by answering the question who is its legal parent. The paper comments a number of recent judgements given by European Court of Human Rights in the field of surrogacy. All the cases concerned question of international surrogacy, so the particular problems that were adjudicated regard the problem of recognising a foreign act of birth (Menneson v. France), giving permission to a child arrival to the intended parents country (D. and others v. Belgium) or factual separation of the child and the intended parents (Paradiso and Campanelli v. Italy). Applicants in the aforementioned cases claimed that states actions regarding surrogacy were opposite to the article 8 of European Convention on Human Rights, especially the right to respect private and family life. European Court of Human Rights has not been settling a dispute in which intended parents refused to take care of the child, what could be a real test to Strasbourg`s view on the commented problem.

A White Paper on America's Family Values: The Facts About Child Maltreatment and the Child Welfare Financing System

This White Paper identifies shortcomings in the current federal child welfare financing system, and recommends changes for improvement. It calls for a funding system that allows effective implementation of child welfare laws by government at the state and federal levels. It also recommends required longitudinal independent studies of each major program receiving federal funds and a specified appropriation for that purpose. Such empirical testing would include sunset dates terminating each program where data fails to warrant continuation. Such sunset proceedings are commonly used in evaluating regulatory agencies in many states. Based on the studies they compel, programs that do not perform will be discontinued and those that do may be continued, expanded and replicated in analogous settings. The understandable reticence to expend monies on social welfare among many in Congress should be assuaged by that assured accountability. Nelson Mandela was famously quoted as observing, “There can be no keener revelation of a society’s soul than the way in which it treats its children.” But federal child welfare spending is a step above such general humanitarian sentiments. This is not funding for children in general. Rather, it is funding to protect and promote the well-being of those who are more than our children in a metaphorical sense. These children have been removed from their homes and their parents and are in state custody. We delegate their care to our publicly appointed and paid judges who serve as their legal parents. And their seizure by the state and their subsequent fate is largely determined by laws enacted by our elected officials and funded by us through mandatory taxation. For those who politically cite “family values” as a basic moral tenet, the status that these children hold as a direct legal part of our “family” makes their treatment a basic test of the bona fides of that stated value.

The Bun's in the Oven, Now What?: How Pre-Birth Orders Promote Clarity in Surrogacy Law

Confounding legal scholars and practitioners alike, surrogacy law represents a disorganized patchwork of ideals that offers no clear answer in parentage disputes. While some states convey their approval by statute or case law, many states convey their distaste for the practice of surrogacy in the same manner. Then again, a handful of states remain silent about whether surrogacy is considered lawful or patently illegal. By surveying surrogacy laws, and the lack thereof, from the fifty states and the District of Columbia, this article formulates a solution to determine legal parentage in surrogacy arrangements — pre-birth orders. Per the Full Faith and Credit Clause of the U.S. Constitution, pre-birth orders provide a legitimate, enforceable judgment that declares the intended parents in a surrogacy arrangement as a child’s legal parents. Since courts are constitutionally required to honor orders made in other states, pre-birth orders provide family law practitioners and prospective parents with a method to navigate conflict of laws when prospective parents cross state borders. Without advocating that all states should permit surrogacy to take place, this article suggests a requirement for the states legalizing surrogacy to issue pre-birth orders and for all states to recognize pre-birth orders.

Parent–Child Contact for Youth in Foster Care: Research to Inform Practice

ObjectiveThe purpose of this study was to document how often youth in foster care have contact with their legal parents, test factors associated with the amount of contact, and determine if contact was associated with relationships with caregivers and youth mental health symptoms.BackgroundBecause parental reunification is the case plan goal for most youth in foster care, it is important to maintain contact with parents. Federal policy emphasizes the importance of parent–child contact for youth in foster care; however, little is known about how often visitation actually occurs.MethodThis study involved a nationally representative study of youth aged 6 to 17 years in the child welfare system (N = 452). Youth reported their amount of contact with parents, and levels of emotional security and involvement with current caregivers. Caregivers completed the Child Behavior Checklist. Multinomial logistic regression and analyses of covariance were conducted to determine linkages associated with parental contact, relationships with caregivers, and youth mental health.ResultsMost youth had at least weekly contact with mothers; however, more than half reported never having contact with fathers. Youths' age, race, type of maltreatment, and placement were associated with how often contact occurred. Findings also revealed statistically lower internalizing, externalizing, and total behavior problems of youth who had daily contact with mothers compared with youth with no contact.ConclusionWhen parent–child contact is safely possible, more frequent contact with mothers is associated with beneficial youth outcomes.ImplicationsApplying a translational family science approach, implications for engaging mothers and fathers in visitation are discussed.

“We Are Citizens”—Vulnerability and Privilege in the Experiences of Israeli Gay Men with Surrogacy in India

In the spring of 2013, I had the opportunity to accompany a group of Israeli gay couples to Mumbai to conduct ethnographic research on their experiences with transnational surrogacy. Based on this study, the article discusses their encounters with the Indian and Israeli bureaucracy establishing legal parenthood and citizenship to their children. The involved procedures seldom worked out smoothly, and brought about many moments of standstill. I suggest that these moments constituted crises of citizenship, in which the intended parents’ experiences clashed with their expectations towards the state and their place in the world. As both countries had no written policies with regards to transnational surrogacy, the protocols and requirements were in flux and left them with constant anxiety from the unknown and with the feeling that many of the requirements were arbitrary, even exploitative or spiteful. The very same moments also unveiled my interlocutors’ power, as agents and brokers—and at times even their social network back home—assisted them in the maze of bureaucracy and intervened on their behalf. Yet, their reliance on intermediators turned out to be a double-edged sword: The intended parents often felt that the middle men themselves were not engaged enough, overcharged them, or tricked them into additional payments. Vulnerability and privilege go here hand in hand, thus allowing for an understanding of intended parents that does not view them as either successful neoliberal citizens or vulnerable victims of the state.

The Constitutionality of a Biological Father's Recognition as a Parent

Despite the increased recognition afforded to biological fathers as legal parents, the Children's Act[1] still does not treat fathers on the same basis as mothers as far as the automatic allocation of parental responsibilities and rights is concerned. This article investigates the constitutionality of the differential treatment of fathers in this respect, given South Africa's international obligations, especially in terms of the United Nations Convention on the Rights of the Child, to ensure that both parents have common responsibilities for the upbringing of their child. After a brief consideration of the constitutionality of the mother's position as parent, the constitutionality of the father's position is investigated, firstly, with reference to Section 9 of the Constitution and the question of whether the differentiation between mothers and fathers as far as the allocation of parental responsibilities and rights is concerned, amounts to unfair discrimination. The inquiry also considers whether the differentiation between committed fathers (that is, those who have shown the necessary commitment in terms of Sections 20 and 21 of the Children's Act to acquire parental responsibilities and rights) and uncommitted fathers may amount to discrimination on an unspecified ground. Since the limitation of the father's rights to equality may be justifiable, the outcomes of both inquiries are shown to be inconclusive. Finally, the legal position of the father is considered in relation to the child's constitutional rights – the rights to parental care and the right of the child to the paramountcy of its interests embodied in Section 28 of the Constitution. While there appears to be some justification for the limitation of the child's right to committed paternal care, it is submitted that an equalisation of the legal position of mothers and fathers as far as the automatic acquisition of parental responsibilities and rights is concerned, is not only justified but imperative if the constitutional rights of children are to be advanced and protected.