Intended Parents and the Problem of Perspective

01 Jan 2012

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, but generally cannot contract into genetic surrogacy, becoming pregnant with her own biological child with the intent of giving the child to intended parents after birth. In such a case, she must renew her intent to give up the child after birth. Intent shown by different groups is also given different weight through time: it is easier for women to opt into parenthood in advance than it is for men. Although the Supreme Court has held that different treatment of unwed mothers and fathers at birth does not violate the Equal Protection Clause, the reasons behind differential treatment by gender are not equally applicable through time. This paper argues that the ideal regime of identifying parentage allows entry of pre-birth parentage orders and creates a hierarchy of rules placing intent at the top. This regime would mandate, for example, enforcement of surrogacy agreements even where the surrogate mother bore her own biological child.