It was not that long ago that sexual intercourse and adoption were the sole methods of family formation. Indeed, the definition of parent was previously limited to those biologically related to their offspring or individuals who were declared legally to be the parent of a child by a Court. Great strides in science now permit individuals, heterosexual couples and, more importantly for this article, the LGBTQ+ community with the tools to form their families in their own way. As a result, the law has had to play catch up acknowledging the different pathways to parentage.
In some jurisdictions, a state’s legislature enacted laws defining who is a parent; in other jurisdictions, the definition is left to the courts to craft. Regardless of how the definition is formulated, most jurisdictions converge on similar pathways to parentage. There are, though, generally six pathways to establishing legal parentage of a child (and the order below in which they are described is not meant to suggest their relative value or importance vis-à-vis each other:
6 Pathways to Establishing Legal Parentage:
In the absence of an agreement waiving parental rights, a sperm donor and/or an egg donor is automatically (with very few exceptions) the parent of child. In some jurisdictions (foreign and domestic), a surrogate may be deemed a parent to the child she births; this is especially true in the United Kingdom.
This is a legal process by which a biologically unrelated adult files an application with a state’s court system to be declared the legal parent of a child; the party proceeds through the adoption process to be judicially declared a parent. An order/judgment of adoption from one state must be recognized by every other state in the US; many foreign jurisdictions recognize a US order of adoption as conferring parental rights (with some exceptions with respect to surrogates).
#3. Presumption of Legitimacy Through Marriage
A child born of a married couple is presume to be their child, and this is a rebuttable presumption. i.e., genetic testing provides certainty of who is a child’s biological parents. In many jurisdictions, the presumption of legitimacy is recognized as a viable path to parentage notwithstanding that one spouse may not be biologically related to the child born during their marriage.
#4. Assertion of equitable estoppel
A person who is not biologically or legally related to a child but has nonetheless acted like a parent in the child’s life can use this remedy to assert their parentage; this person is sometimes referred to as the putative parent. This legal remedy is recognized in many jurisdictions and requires the putative parent prove: 1) the legal parent allowed them regular access with the child; 2) the child and putative parent resided in a residence together; 3) the putative parent provided emotional and financial support to the child; and, 4) the child and putative parent have a parental bond. These situations typically involve unmarried couples who have lived together for a time and then broken up or separated (but have continued to co-parent the child.
#5. Assertion of Judicial Estoppel
These situations usually involve the legal or biological parent filing a petition in court asserting that another person is a parent for child support purposes. If the parent is awarded child support from the other person, the Court has essentially declared the other party a parent. At this point, the newly declared parent may now seek access with the child and the parent receiving the child support cannot claim the other individual is not a parent for custody purposes.
#6. Pre-Conception Agreement
This pathway can take many forms. This could simply be an agreement between two adults prior to the conception of a child to conceive and raise a child together. The agreement can be an oral agreement or acknowledged through various contracts, i.e., a compensated gestational surrogacy agreement between intended parents and a surrogate; an embryo disposition agreement signed at an IVF clinic; or, an agreement with a surrogacy agency to find a surrogate.
Several states permit intended parents to obtain a pre-birth order, which identifies the intended parents as the legal parents of the child to be born. The pre-birth order is a legal document, which puts the world on notice who the child’s parents will be. This is especially important in the hospital where the child is born so that there is no confusion who may make medical decisions for the child.
Many times, a parent may erroneously rely on a birth certificate to prove their parentage. A birth certificate is filled out in the hospital, post birth, by a nurse or hospital staff. The information collected is then sent to whichever state agency maintains birth records. A child’s birth certificate is merely a ministerial document, but it is not proof of parentage sufficient to confer custodial rights on an individual.
It remains unclear whether a preconception agreement (other than a pre-birth order) can end and, if so, under what circumstances. Does the dissolution of an unmarried couple’s relationship terminate the agreement? Can either party declare the agreement terminated? Does the agreement expire by itself if there is a term when the couple halts the treatments? Parentage created through equitable estoppel or acknowledgment of a preconception agreement to conceive and raise a child together – which is essentially dependent upon judicial recognition – could be terminated at some point by one parent or a court.
In the end, proceeding with a second parent adoption if one is not biologically related to their child is the best way to securing their parentage. Notwithstanding the advances in science and the law providing LGBTQ+ individuals multiple paths to create their families, second parent adoption remains the holy grail in protecting the parental-child relationship.