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Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S

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Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S University of Minnesota Law School Scholarship Repository Minnesota Law Review 2015 Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S. Deprince Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Deprince, Michael S., "Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy" (2015). Minnesota Law Review. 194. https://scholarship.law.umn.edu/mlr/194 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. DEPRINCE_6fmt 1/3/2016 1:01 PM Note Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S. DePrince* Recently married, Anne and Andrew decide they want to have their first child. After multiple failed attempts, the couple learns that Andrew has a low sperm count, rendering him func- tionally infertile. Desiring a child that is genetically related to at least one of them, Anne and Andrew pursue alternative bio- logical reproduction in lieu of adoption. They obtain sperm from an anonymous donor and Anne undergoes artificial insemina- tion, resulting in a viable pregnancy. Shortly before the child‘s birth, however, the couple files for divorce. At this time, An- drew maintains that he is not the child‘s genetic father and, consequently, should not be responsible for the child upon the dissolution of the marriage. To the contrary, Anne indicates that notwithstanding biology, Andrew is equally the child‘s le- gal parent. Can Andrew successfully disestablish his parenthood? Now, entertain instead an alternative iteration of the above factual scenario: Anne and Andrew are Bill and Andrew. Bill and Andrew, a married couple, decide to have a child. Be- cause the couple is structurally infertile, they obtain an egg from an anonymous donor. The couple uses Bill‘s sperm to cre- ate a viable embryo and subsequently implants the embryo into the womb of a third-party gestational carrier. Shortly before the child‘s birth, however, the couple files for divorce. Can An- * J.D. Candidate 2016, University of Minnesota Law School; B.S./B.A. 2013, West Chester University. Thank you to Professor June Carbone for her invaluable guidance and for allowing me to challenge my own perspectives through hours of profound conversation. Thank you to the board and staff of the Minnesota Law Review for their helpful feedback and for providing a meaningful outlet to discuss issues impacting the LGBT community. Thank you to my numerous mentors who have guided me through my academic jour- ney. And most importantly, thank you to my family for years of boundless love, support, and encouragement, without which nothing would be possible. Copyright © 2015 by Michael S. DePrince. 797 DEPRINCE_6fmt 1/3/2016 1:01 PM 798 MINNESOTA LAW REVIEW [100:797 drew, being genetically unrelated to the child, disestablish his legal fatherhood? Does the answer differ because Bill and An- drew are not Anne and Andrew? What if they were Anne and Barbara instead? Parenthood is quite easily determined when a married couple conceives a child through sexual reproduction. ―The bio- logical mother and father are the child‘s legal parents, and marriage unites them in an enterprise of lifelong duration.‖1 However, family law has undergone dramatic changes in recent decades,2 and the deviation from this historic unification of sex, reproduction, and marriage yields inherent uncertainty under- lying the above scenarios. Today, the definition of parentage, and in turn ―the determination of which adults receive legal recognition in children‘s lives,‖ represents one of modern family law‘s most contentious issues: ―Not only are jurisdictions irrec- oncilably divided in their approach to parentage, decisions un- der settled law in a given county may not necessarily come out the same way.‖3 Same-sex couples are uniquely situated in this family law transformation—not only through the advent of same-sex mar- riage, but also because they cannot procreate through sexual intercourse. Unprecedented advances in technology have in- creased the frequency of conception through assisted reproduc- tive techniques4—and more specifically, surrogacy: when a woman carries and births a child for its intended parents.5 In turn, surrogacy has increased the complexity of determining parenthood, and parentage laws have not kept pace with this technology.6 Much akin to the fractured same-sex marriage 1. June Carbone & Naomi Cahn, Which Ties Bind? Redefining the Par- ent-Child Relationship in an Age of Genetic Certainty, 11 WM. & MARY BILL RTS. J. 1011, 1017 (2003) [hereinafter Which Ties Bind?]. 2. See infra Part I.A.2. See generally Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. VA. L. REV. 547, 548–50 (2000) (discussing the rise in children born to unmar- ried mothers, the dissolution of marriages with children, and the weakening of the martial presumption of paternity). 3. June Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV. 1295, 1295 (2005). 4. E.g., Anne R. Dana, Note, The State of Surrogacy Laws: Determining Legal Parentage for Gay Fathers, 18 DUKE J. GENDER L. & POL‘Y 353, 353–54 (2011). 5. A surrogate may or may not have a genetic relation to the child she carried based on the type of surrogacy undertaken: traditional or gestational. ―What sets gestational surrogacy apart from traditional surrogacy is that the woman who bears the child is not genetically related to the child.‖ Id. at 362. 6. See id. DEPRINCE_6fmt 1/3/2016 1:01 PM 2015] RECONCEPTUALIZING PARENTHOOD 799 landscape prior to Obergefell v. Hodges,7 ―[n]o uniformity exists among states concerning the legal relationships established through collaborative reproduction.‖8 This uncertainty stems from the dissociation of sex and reproduction, which represents a paradigmatic shift in society‘s understanding of parentage. Same-sex assisted reproduction erodes the traditional mother- father framework, as well as mother-father duality, by requir- ing a third individual—not party to the marriage—to play an integral biological role in conception (albeit oftentimes with no intent to play a functional role as a parent). With more children conceived through alternative reproductive means and born in- to same-sex marriages, determining parentage proves ―increas- ingly problematic and ripe for growing caseloads.‖9 Moreover, same-sex marriage yields same-sex divorce, a concept and practice still evolving in the United States.10 Tra- ditional parentage frameworks were largely contested when di- vorce rates spiked amongst the heterosexual population during the latter-twentieth century. Previously, husbands would not have inquired into their paternity at divorce, as no confirmato- ry means then existed. Because the upsurge in divorce occurred at the same time as the advent of near-certain paternity test- ing, however, an unprecedented wave of presumed fathers— who thought (and held out) a child born during the marriage to be their own—sought to disestablish their parenthood by prov- ing non-biological paternity at divorce.11 Thus, while advocates and academics stress the importance of clear legal frameworks 7. The Supreme Court decided the landmark marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), during this Note‘s publication. Nonetheless, jurisdictional discord persists around collaborative reproduction and legal parentage. 8. June Carbone & Naomi Cahn, The Past, Present and Future of the Marital Presumption, in THE INTERNATIONAL SURVEY OF FAMILY LAW 387, 394 (Bill Atkin & Fareda Banda eds., 2013) [hereinafter The Past, Present and Future]. 9. Dana, supra note 4, at 357. 10. See generally Courtney G. Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. REV. 1669, 1679 (2011) (outlining the challenge same-sex couples faced in meeting jurisdictional- based divorce residency requirements); Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. C.R. & C.L. 1, 13–14 (2005) (identifying the geographic limitations of same-sex divorce pre-Obergefell). 11. See infra Part I.A.2; see, e.g., Jana Singer, Marriage, Biology, and Pa- ternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246, 261 (2006). DEPRINCE_6fmt 1/3/2016 1:01 PM 800 MINNESOTA LAW REVIEW [100:797 to establish same-sex parentage,12 its discussion within the context of a same-sex partner‘s attempt to disestablish parenthood proves equally pressing. As all states begin to rec- ognize same-sex marriages, a subset of these marriages will not only inevitably result in same-sex divorce, but also the birth of children that will only be biologically related to, at most, one of their parents.13 This Note explores the currently indeterminate legal status of intended same-sex parents who are party to a surrogacy ar- rangement, with express concern regarding same-sex marriag- es that dissolve while a child is still in the womb. Same-sex couples, like infertile heterosexual couples, are different from fertile heterosexual couples in that they must intend a preg- nancy for it to occur. Same-sex couples must therefore arrange for the conception of a child with the involvement of a third- party sperm donor, egg donor, and/or surrogate. This need for third-party involvement offers the opportunity to establish in- tended parentage in writing, and same-sex couples can also ar- range for the severance of the parental status of third-party participants. State law ultimately determines the timing of such severance, with some doing so at the time of conception and others after a child‘s birth.
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