University of Southern California

Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans

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Postscript (Response) by Dara E. Purvis
November, 2010

Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010).

In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART financially as well as emotionally and developmentally. Joslin’s solution is to propose extending to such children what she terms the “consent = legal parent” rule, meaning that “any individual, regardless of gender, sexual orientation, or marital status, who consents to a woman’s insemination with the intent to be a parent is a legal parent of the resulting child.” Such a rule removes a period of time during which a child is unprotected by the lack of legal recognition of a parent. This response identifies an ambiguity in and proposes a clarification of Joslin’s consent = legal parent rule with regard to conception, and with regard to consent during the period after conception and before birth.

In her article, Joslin discusses a New Jersey case in which a lesbian couple had a child together, but before the adoption of the child by the nonbirth mother was complete, the birth mother suddenly died. Because the adoption had not been finalized, the child was found to be ineligible to receive Social Security survivor benefits. Joslin thus identifies an important gap in the protection of a child’s financial well-being that is given less attention when the focus is on the child’s emotional health. Doctrines such as de facto or psychological parenthood focus on the relationships that develop in a child’s early years and seek to give legal standing—even to the level of parenthood—to those individuals who are constant, supportive presences in a child’s life serving in the role of parent, even if they are not biologically or otherwise legally related to the child. The problem solved by de facto parenthood is, therefore, that a person functioning as a parent, with attendant psychological and emotional importance to the child, might not have any protected rights vis-à-vis the child. If the boyfriend of the biological mother has raised a child from birth, it is not necessarily in the best interests of the child to treat the boyfriend as a legal stranger and allow the mother to terminate all visitation rights if she and the boyfriend break up. The solution is thus to grant the boyfriend rights as though he were the biological parent of the child in order to give legal protection to a relationship that benefits the child.

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