Beyond conception: Legal determinations of filiation in the context of assisted reproductive technologies

Osgoode Hall Law Journal

Volumn 39, Issue 4, 2001, Pages 771-815

  Mykitiuk, Roxanne ^a  

^a YORK UNIVERSITY   (Canada)

Author keywords

Domestic relations; Paternity; Reproductive technology Law and legislation

Indexed keywords

ADOPTION; ARTICLE; CANADA; CHILD PARENT RELATION; FAMILY; FEMALE; GENETICS AND REPRODUCTION; HUMAN; IN RE MARRIAGE OF BUZZANCA; IN RE MARRIAGE OF MOSCHETTA; INFERTILITY THERAPY; JOHNSON V. CALVERT; LEGAL APPROACH; LEGAL ASPECT; MALE; MOTHER; PATERNITY; UNITED STATES;

GENETICS AND REPRODUCTION; IN RE MARRIAGE OF BUZZANCA; IN RE MARRIAGE OF MOSCHETTA; JOHNSON V. CALVERT; LEGAL APPROACH;

ADOPTION; CANADA; FAMILY; FEMALE; HUMANS; MALE; PARENT-CHILD RELATIONS; PATERNITY; REPRODUCTIVE TECHNIQUES, ASSISTED; SURROGATE MOTHERS; UNITED STATES;

EID: 33646834154     PISSN: None     EISSN: 28175069     Source Type: Journal    
DOI: 10.60082/2817-5069.1453     Document Type: Article

References (152)

1. Filiation was traditionally defined as the relationship of a son to his father and omitted the relationship of father and daughter. I extend the use of this term to include the legal determination of any parent-child relationship
2. For a more extensive discussion of this point, see R. Mykitiuk, “Fragmenting the Body” (1994) 2 Austl. Feminist L.J. 63.
3. See D.J. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature (London; Free Association, 1991) and M.H. Shapiro, “Fragmenting and Reassembling the World; Of Flying Squirrels, Augmented Persons, and Other Monsters” (1990) 51 Ohio St. L.J. 331.
4. M. Strathern, Reproducing the Future: Essays on Anthropology, Kinship and the New Reproductive Technologies (New York: Routledge, 1992) at 17 [hereinafter Reproducing].
5. S. Franklin, “Postmodern Procreation: A Cultural Account of Assisted Reproduction,” in F.D. Ginsberg & R. Rapp, eds., Conceiving the New World Order: The Global Politics of Reproduction (Berkeley: University of California Press, 1995) 323 at 335.
6. J. Edwards et al.. Technologies of Procreation: Kinship in the Age of Assisted Conception (Manchester: Manchester University Press, 1993) [hereinafter Technologies of Procreation].
7. Ibid. at 14.
8. Ibid.
9. L. Stone, Kinship and Gender. An Introduction (Boulder, Colo; Westview Press, 1997) at 1.
10. Ibid.
11. S. Franklin & M. Strathern, “Kinship and the New Genetic Technologies: An Assessment of Existing Anthropological Research’’ in Ethical Social and Legal Aspects of Human Genome Analists: A Report Complied for the Commission of European Communities Medical Research Division (DG-XII) Human Genome Analysis Programme (January 1993) at para. 2.3.4.
12. See S. Boyd for a thorough discussion of the relationship between ideology and discourse. “Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law” (1991) 10 Can. J. Fam. L. 79.
13. Technologies of Procreation, supra note 6 at 22.
14. S.A.M. Gavigan, “A Parent(ly) Knot: Can Heather Have Two Mommies?” in U. Narayan & J.J. Bartkowiak, eds., Having and Raising Children: Unconventional Families, Hard Choices, and the Social Good (Pennsylvania: Pennsylvania State University Press, 1999) 87 at 88.
15. N. Rouland, “The Cultural Dimensions of Kinship” in J. Eekelaar & P. Sarcevic, eds., Parenthood in Modern Society (Boston: M. Nijhoff, 1993) at 6.
16. Franklin & Strathern, supra note 11 at para. 2.5.1.
17. Rouland, supra note 15 at 6.
18. M.L. Shanley, “Lesbian Families: Dilemmas in Grounding Legal Recognition of Parenthood” in J.E. Hanigsberg & S. Ruddick, eds., Mother Troubles: Rethinking Contemporary Maternal Dilemmas (Boston: Beacon, 1999) 178 at 178. As Shanley and others argue, family arrangements do not often conform to the normative ideal but involve a multiplicity of family forms and functions—a promise which obviously underpins this paper.
19. Recent same-sex challenges to family legislation include: Canada (A.-G.). v. Mossop. [1993] 1 S.C.R. 554; Egan v. Canada, [1995] 2 S.C.R. 513; Rosenberg v. Canada (1993), 38 O.R, (3d) 577 (C.A.); and M. v. H., [1999] 2 S.C.R. 3.
20. A.H. Young, “Reconceiving the Family: Challenging the Paradigm of the Exclusive Family" (1998) 6 Am. U.J. Gender & L. 505 at 506.
21. M. Strathern, “Displacing Knowledge: Technology and the Consequences for Kinship” in F.D. Ginsburg & R. Rapp, eds., Conceiving the New World Order: The Global Politics of Reproduction 346 at 359 [hereinafter Displacing Knowledge].
22. Stone, supra note 9 at 273.
23. For a detailed discussion of surrogacy in the context of kinship see H. Rogone, Surrogate Motherhood: Conception in the Heart (Boulder, Colo.: Westview Press, 1994).
24. Technologies of Procreation, supra note 6 at 14.
25. D. Farquhar, The Other Machine: Discourse and Reproductive Technologies (New York Routledge, 1996) at 35ff.
26. T. Caulfield, “Paternity Testing in the Genetic Era” (1996) 17 Health L. Can. 19 at 21 [hereinafter “Paternity Testing”].
27. R. Mykitiuk & E. Sloss, “The Challenge of the New Reproductive Technologies to Family Law” in Royal Commission on New Reproductive Technologies, Legal and Ethical Issues in Reproductive Technologies: Pregnancy and Parenthood (Ottawa: Supply & Services, 1993) 339 at 347.
28. Sir W. Blackstone, Commentaries on the Laws of England (New York: Wildly and Sons, 1967) at 457.
29. J. Teichman, The Meaning of Illegitimacy (Cambridge, U.K.: Englehardt Books, 1978) at 5.
30. However, in several cases in the United States, the marital presumption was discarded when a dark-skinned child was born to a white woman married to a white man. See D.E. Roberts, “The Genetic Tie” (1995) 62 U. Chi. L. Rev. 209 at 259ff.
31. Mykitiuk & Sloss, supra note 27 at 362.
32. S. Sevenhuijsen, “The Gendered Juridification of Parenthood’’ (1992) 1 Soc. & L. Stud 71 at 74.
33. M.M. Shultz, “Reproductive Technology and Intent-Based Parenthood. An Opportunity for Gender Neutrality” (1990) Wisconsin L. Rev. 297 at 317.
34. “Paternity Testing,” supra note 26 at 20.
35. Blackstone, supra note 28 at 454.
36. For a discussion of the status of illegitimacy in relation to maternity see below.
37. Teichman, supra note 29 at 36; and Blackstone, supra note 28 at 459.
38. Blackstone, supra note 28 at 459.
39. Ibid. at 455.
40. Ibid. at 446.
41. C. Mossman, “DNA and the Stakes in Embodying Paternity" in L Spaas, ed., Paternity and Fatherhood; Myths and Realities (London: MacMillan Press, 1993) 40.
42. The presumption of paternity is difficult to overturn. The onus rests on the man contesting paternity to provide proof that he is, or is not, the father of the child. Biological evidence obtained through a blood test or genetic fingerprinting is usually the most compelling form of proof but the court does not always order blood tests. See T. Caulfield, “Canadian Family Law and the Genetic Revolution: A Survey of Cases Involving Paternity Testing” (2000) 46 Queen’s L.J 67.
43. For details of particular provincial schemes, see Sloss & Mykntuk, supra note 27 at 352 and n. 56.
44. Ibid. at 352 and n. 59.
45. Ibid. at 352 and n.63.
46. Paternity Testing, supra note 26 at 20.
47. The increasing emphasis on this in Canada, the United States and the United Kingdom, masks a concern with the burdening of the public purse in the guise of concern with the welfare of children. For an analysis of this trend in the United States, see J.L. Dolgin, “Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family” (2000) 32 Conn. L. Rev. 523.
48. See e.g. the consent provisions and the meaning of the term “parent” in Ontario’s Child and Family Services Act, R.S.O. 1990, c. C.11, s. 137(1) [hereinafter CFSA]. For a detailed analysis of consent provisions within adoption statutes, see Mykitiuk & Sloss, supra note 27 at 356-57. See also S.(C.E.) v. Children's Aid Society of Metropolitan Toronto (1988), 64 O.R. (2d) 311 (Div. Ct.) [hereinafter S. (C.E.)].
49. Paternity Testing, supra note 27 at 20. Caulfield makes this assertion in light of the following cases: L.(T.D.) v. L.(L.R.) (1994), 114 D.L.R. (4th) 709 (Ont. Gen. Div.); and Zegota v. Zegota-Rzegocinski (1995), 10 R.F.L. (4th) 384 (Ont. Gen. Div.).
50. nd Supp,) c. 3, s. 2(2)(b) refers to this type of parental status as one who “stands in the place of a parent.”
51. 1 S.C.R. 242 [hereinafter Chattier], Although the principle use of the doctrine of in tazo parentis is meant for determinations of support obligations, the Court in Chattier discussed some of the relevant factors to be taken into account when assessing a parent-child relationship.
52. Ibid. at 261. Similar factors are considered in the contest of “settled intention,” Although the financial aspects of a settled intention parent-child relationship arc key considerations, courts also often consider the social, emotional, and psychological factors in the relationship.
53. M. Coleman, “Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted Human Reproduction” (1996) 17 Cardozo L. Rev. 497.
54. B.K. Rothman, “Motherhood Under Patriarchy,” in Recreating Motherhood: Ideology and Technology in a Patriarchal Society (New York & London: W.W. Norton, 1989) 29 at 29-30.
55. Ibid. at 29.
56. Ibid. at 29-37.
57. Teichman, supra note 29 at 83.
58. Ibid. at 41.
59. According to Drucilla Cornell, ‘[i]t is only in the contest of a system of duties that remain bound up with women’s legal identity in the heterosexual family that we can even begin to understand the unequal treatment of birth mothers and adopted children.” See D. Cornell, “Reimagimng Adoption and Family Law” in Hanigsberg & Ruddick, eds., supra note 18, 208 at 211.
60. Step-parent adoptions are an exception, as the biological connection to one of the child’s parents remains intact.
61. Shultz, supra note 33 at 320. As Shultz notes: “… intention, rather than biology, is the basis for giving up or adopting a child, but an imagery of biology locked into conventional family forms has shaped the transaction. Neither the surrendering biological parents nor adoptive legal parents have had more than one choice about how to structure their relationship to each other or to the child.” Ibid.
62. S. Fodden, Family Law (Toronto: Irwin Law, 1999) at 97. For example, see the consent provisions and the term “parent” in CFSA, supra note 53.
63. Cornell, supra note 59. See E.N. Glenn, “Social Constructions of Mothering: A Thematic Overview” in E.N. Glenn, G. Chang & L. Forcey, eds., Mothering: Ideology, Experience and Agency (New York: Routledge, 1994) 1 at 13. According to Glenn, the conflation of woman with mother appears an undifferentiated and unchanging monolith. This exists in sharp contrast to the historical specificity, and variance of roles and contexts, in which men are linked to parenthood. The conflation of “woman” and “mother” reflects a fusion of actor and activity and has historically been one in which only women, or birth-mothers, are recognized as nurturers and caregivers. Further, Slaughter illustrates how language is pivotal to this discussion. “Mother” is a term that refers to two functions: Childbearing and childrearing. Since women are usually both the primary childrearers and childbearers, the two functions are usually collapsed under this term. However, there is nothing in nature that requires women to “mother,” nor that which prevents men from doing so too. See M.M. Slaughter, "The Legal Construction of Mother” in M.A. Fineman & I. Karpin, eds., Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood (New York: Columbia University Press) at 73.
64. In Ontario, see K. (Re) (1995), 23 O.R. (3d) 679 and Amendments because of the Supreme Court of Canada decision in M. v. H., S.O. 1999, c. 6, Same-sex partners now fall within the scope of persons who may apply to adopt a child under s. 146(4) of the Child and Family Sennes Act, R.S.O. 1990, c. C.11., as am. by Consent and Capacity Statute Law Amendment Act, S.O. 1992, c. 32, s. 3; Revised Statutes Confirmation and Corrections Act, 1993, S.O. 1993, c. 27, Sch,; Statute Law.Amendment Act (Government Management and Services), 1994, S.O. 1994, c. 27, s.43(2); and Adversary, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, c.2,5.62 In British Colombia, those who are permitted to apply to adopt a child are not restricted on the basis of sexual orientation in either applications made alone, jointly as a couple, or in the case of step-parent adoption where one applicant is the birth parent of the child. See Adoption Act, R.S.B.C. 1996, c, 5, ss. 29(1), (2).
65. For statutory provisions, see Mykitiuk & Sloss, supra note 27 at 423, n. 44.
66. Ibid. at 350. For statutory provisions, see Alberta’s Domestic Relations Act, R.S.A. 1920, c. D-37, s. 64, which states that standing is limited to “a person claiming to be the father, mother or child of another person”; Manitoba’s Family Maintenance Act, R.S.M. 1937, c F-20, s. 19-20; Newfoundland’s Children’s Law Act, R.S.N 1990, c. C-13, s. 6; New Brunswick's Child and Family Services Act, R.S.N.B. 1980, c, C-2.1, s. 100; the Northwest Territories' Child Welfare Act, R.S.N.W.T 198S, c. C-6, s. 79; Ontario’s Children’s Law Reform Act, s. 4; Prince Edward Island's Chilld Status Act, R.S.P.E.I. 1988, c. C-6, s. 5; Saskatchewan’s Children’s Law Act, S.S. 1997, c, C-8.2, s. 43; Yukon's Children’s Act, R.S.Y. 1986, c, 22, ss. 8-10. For a more detailed analysis of the Ontario provision, see Fodden, supra note 69 at 71-72. In a recent Ontario case, a woman relied unsuccessfully upon such a provision to apply for a declaration that she, in addition to her lesbian partner who gave birth to the child, was also the mother of that child. See also, Buist v. Greaves, [I997] O J. No, 2646 (Gen, Div.) [hereinafter Buist] discussed below.
67. Reproducing, supra note 4.
68. By using the term “similar" here, I do not mean to suggest that I favour a similarly situated conception of formal equality. Quite the contrary. As one insightful external reviewer of this article noted, I want to argue that formal equality will get us nowhere because biology never has been and never will be the exclusively relevant factor in determinations of filiation. First, because biology has always had a significant ideological component in legal discourse and second, because formal equality assumes human relations can be reduced to a simplistic male/female dyadic equation. What ARTs do is to clarify that the male/female dyad no longer has a purchase as a “biological truth” about procreation and expose what has always been its ideological content. Thus, substantive equality in determinations of filiation will require an analysis more reflective of complex social and material relations and of the asymmetrical and diverse connections of multiple persons to a particular child.
69. Art 541 of the Quebec Civil Code renders surrogacy contracts void.
70. Farquhar, supra note 25 at 35.
71. The process of ovum enucleation through which the nucleus of an ovum is replaced with the nucleus of another, expands the number of women who may be biologically related to a child.
72. See J.L. Hill, “What Does it Mean to be a ‘Parent’? The Claims of Biology as the Basis for Parental Rights” (1991) 66 N.Y.U.L. Rev. 353; and J.A. Robertson, “Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction” (1986) 59 S. Calif. L. Rev. 939.
73. Stone, supra note 9 at 80. Historically, paternity tests could only exclude individuals from a group of potential fathers but could not determine which particular individual was the actual father. DNA fingerprinting techniques have changed this situation and can now determine paternity with a very high degree of certainty—up to 99.99 per cent or better.
74. See S. v. M. (1994), 113 D.L.R. (4th) 443 (B.C.S.C.); D.H. v. D.W. [1992] O.J. No. 1737 (QL); Saul v. Himmel (1994), 120 D.L.R. (4th) 432; 5. (R.) v. H. (C.) (1989), 20 R.F.L. (3d) 456 (N.B.C.A.); and D.(J.S.) v. V. (W.L.) (1995), 11 R.F.L. (4th) 409.
75. See Zegota v. Zegota-Rzegocinski (1995), 10 R.F.L. (4th) 384 (Ont. Gen. Div.); L.(T.D.) v. L.(L.R.) (1994), 114 D.L.R. (4th) 709 (Ont. Gen. Div.); and King v. Low, [1985] 1 S.C.R. 87.
76. (1994) 4 R.F.L. 4th 103 (Ont Ct J.) [hereinafter Low].
77. O.J. No. 204, online: QL (OJ) [hereinafter Zegota].
78. R.S.O. 1990, c. C-12.
79. R.S.O. 1990, c. V-4.
80. Divorce Act, supra note 50. Under s. 16, an application (i.e., an application for custody or access in relation to a child of the marriage) can be made by either or both spouses or by any other person. Pursuant to ibid., s. 2(2)(b), a “child of the marriage” includes “any child of whom one is the parent and for whom the other stands in the place of a parent.” Therefore, one can acquire quasi-parental rights and obligations under the legislation without being the legal parent of a child.
81. CLRA, supra note 78. Pursuant to the CLRA, there are two means by which a declaration of paternity can be granted. Section 4(1) permits “any male person having an interest” to apply for a declaration that he is “recognized in law” to be a father. Section 4(2) links the presumption of paternity under s. 8 to the legal declaration of paternity in this section. Where the court finds that a presumption of paternity exists under s. 8, and this presumption is not rebutted on the balance of probabilities, a declaratory order of paternity pursuant to s. 4 in favour of the presumed father shall be granted. A declaration of paternity can also be granted when a presumption of paternity does not arise. Section 5 allows any male person to apply for a declaration that he is the father of a child. When the court finds, on the balance of probabilities, that the “relationship between father and child” has been established, the court can make a declaratory order of paternity.
82. Ibid. Section 1 establishes equal status for children by abolishing illegitimacy: Children born within and outside of marriage are considered the children of their “natural” parents
83. Low, supra note 76 at 113.
84. The court relied upon section 10 of the Interpretation Act, R.S.O. 1990, c. I-11, which authorizes the fair, large, and liberal interpretation of statutes for the public good.
85. She was also known by her former married name, Zegota.
86. Zegota, supra note 75 at 388.
87. A.J. No. 512, online: QL (AJ) [hereinafter Johnson-Steeves Trial]. The Alberta Court of Appeal upheld the decision of the trial court, making only limited comment on the issues raised at trial. See Johnson-Steeves v. Lee [1997] A.J. No. 1057 (Alta. C.A.), online: QL (AJ) [hereinafter Johnson-Steeves C.A.]. This case also raises an interesting contracts discussion around the nature of legally binding paternity agreements which is outside the scope of this paper.
88. Legally recognized relationships are marriage or cohabitation within a relationship of "some permanence.”
89. R.S.A. 2000, c. D-14.
90. R.S.A. 2000, a P-l.
91. Surprisingly, the trial court judgment did not discuss or analyze the relevant provisions of the DRA as applied to the facts of this case. The court of appeal only clarified this omission to the estent that it located the decision as resting upon Part 9 of the DRA, supra note 59, entitled “Establishing Parentage,” which sets out the circumstances in which declarations of parentage can be made. It is uncertain, however, whether the court actually declares Dr. Lee to be Nigel's legal father pursuant to what was then s. 64(1) (now s. 79(1)). Since the issue at hand was access, and not a determination of full legal paternity, both courts appear to have skirted the issue.
92. The court of appeal declined to consider whether such a distinction should be adopted in Alberta. Johnsan-Steeves CA., supra note 87 at para. 20.
93. Johnson-Steeves Trial, supra note 87 at para. 48 (emphasis added).
94. Johnson-Steeves C.A..t supra note 87 at para. 16.
95. Johnson-Steeves Trial, supra note 87 at para. 53.
96. See Goudie v. Goudie, [1993] B.C.J. No. 1049. See also, Keeping v. Pacey. [1936] O.J. No, 2274 (C.A.). Both cases demonstrate that a biological tie is not required for a man to acquire certain parental rights to, and responsibilities for a child such as maintenance and access. In these cases, actual paternity was not at issue, rather the courts had to determine whether the men had a sufficient caaal relationship with the children to establish legal rights and duties.
97. This assertion has to be made in light of the understanding that the financial support obligations for children do not establish the type of relationship that should fall upon individual men in the absence of a relationship with the child; this should be a responsibility of the state. Where a man is compelled to pay maintenance, in order for him to as:crt a right of access (or another parental right), he must ha\e asocial relationship with the child. This view conforms with the ruling in S.(C.E.), supra note 48, and several American cases. See e.g. Lehr v. Robertson, 463 U.S. 243(1933); and Matter of Robert O. v. Russell K., 604 N.E. 2d 99 (N.Y. 1992).
98. Buist v. Greaves [1997] O.J. No. 2646 (Gen Div.), online: QL (OJ)[hereinaftcr Buist].
99. Ibid. at para. 34. For a discussion of the legal recognition of same sex step-parent adoption see below. Note the court does not explicitly state that the children in question in Re K have two legally recognized mothers. Whether intentionally or not, they state only that the definition of spouse in the Human Rights Code, which is incorporated into the Child and Family Services Act, violates s. 15(1) of the Charter of Rights and Freedoms by denying to gay or lesbian people the right to apply for adoption as a couple. The legal concept under dispute in the step-parent cases and legislation is that of spouse, not maternity, paternity or filiation. Technically, there is no jurisprudence which states that a child has two legal mothers. Of course, the effect of an adoption order (including an adoption order in the context of a step-parent adoption) is to confer all of the rights and responsibilities of legal parenthood on the individual adopting the child(ren), and the birth of certificate of the child is altered to reflect this but courts and legislatures have avoided express alternation of the underlying basis of the construction of maternity and filiation.
100. Ibid. at para. 35. This provision states that "[w]here the court finds on the balance of probabilities that the relationship of mother and child has been established, the court may make a declaratory order to that effect” Section 4(2) provides that “[w]here the court finds that a presumption of paternity exists under section 8 and unless it is established, on the balance of probabilities, that the presumed father is not the father of the child, the court shall make a declaratory order confirming that the paternity is recognized in law,”
101. Ibid.
102. Johnson v. Calvert, 19 Cal Rptr. 2d. 494 (Sup. Ct.) [hereinafter.Johnson Sup, Ct.]; and Johnson v. Calvert, 286 Cal. Rptr. 369 (C.A.) [hereinafter Johnson C.4.]. For another view on this case, see J.L. Dolgin, supra, note 47 at 637.
103. Anna J. v. Mark C. No. X-633190, slip op. (Cal. App. Dep’t Super. Ct. Oct. 22,1990).
104. In other cases in which the custody of children was contested in the context of a surrogacy arrangement, the principle that the woman who gives birth is the natural mother of the child was not questioned. See e.g. Matter of Baby M., 537 A.2d 1227 (1988); and Adoption of Matthew B.-M.,232 Cal. App. 3d 1239 (1991).
105. Johnson, C.A., supra note 102 at 376 [emphasis added].
106. Cal. Civ. Code, Part 7, Division 4, (§§ 7000-7021), online: WL (CA CIVIL). The UPA bases parent and child rights on the existence of a parent and child relationship rather than on the marital status of the parents.” See Johnson C.A., supra note 102 at 374, n. 14. According to § 7015: "any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part applicable to the father and child relationship apply.”
107. Ibid., § 7003 suggests that “[b]etween a child and the natural mother it may be established by proof of her giving birth to the child, or under this part” (emphasis added)
108. Johnson CA., supra note 102 at 377.
109. Ibid. at 377.
110. Ibid, at 380-81.
111. The amicus curiae brief from the American Civil Liberties Union Foundation of Southern California argued that the “fundamental rights of intimate association and procreative choice… exercised by all of the parties” require that genetics alone not be the “exclusive factor in determining parental rights.” Ibid at 378. As well, the court brusquely dismissed the opinion of the Committee on Ethics of the American College of Obstetricians and Gynecologists who argued that “the genetic link between the commissioning parent(s) and the resulting infant, while important, [are] less weighty than the link between surrogate mother and fetus….” Statutory interpretation, according to the court, did not encompass “what a group of doctors, however distinguished and learned in their field, think the law ought to be.” Ibid.
112. Johnson, Sup. Ct., supra note 102.
113. Ibid. at 499.
114. Ibid. (emphasis added).
115. Justice Kennard, fn dissent, presented an excellent critique of an “intent-based” test and argued instead for a “best-interests" test for these kinds of cases. See ibid. at 506-519. One of the perverse results of the intention rule would be that in situations v. ere the intended mother "withdraws" her intention to have or raise the child, the gestational mother might be viewed as a legal stranger to that child who would then be left without a legally recognized mother.
116. Ibid. at 500.
117. Ibid. (emphasis added).
118. Ibid. at 504.
119. 25 Cal. App. 4th 1218 [hereinafterMoschetta).
120. Ibid. at 1223.
121. Johnson, Sup Ct., supra note 102 at 498.
122. Moschetta, supra note 119 at 1224.
123. 12 Cal. Fam. Code § 7540, online: WL (CA FAM). The provision states that “the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”
124. Moschetta, supra note 119 at 1222-26. The court also read in the exception to the presumption contained within 12 Cal Fam. Code § 7541, online: \VL (CA FAM) concerning the primacy of blood-test evidence in defeating a finding of paternity.
125. Moschetta, ibid. at 1225. It is essential to note that the courts do not always order blood tests, especially in light of the existence of a marriage or marriage-like relationship between the parties who hold themselves out to be the parents of a child.
126. Cal. Fam. Code § 7611(d), online: WL (CA FAM) states that “a man is aka presumed to be the natural father of a child if he ‘receives the child into his home and openly holds out the child as his natural child.’”
127. Moschetta, supra note 119 at 1226. In this brief, disturbing and close to tragic conclusion, the court failed to understand the nature of the presumption which is that it is not essential that the parent actually have a biological or genetic tie to the child; rather, the question is whether that parent has behaved in such a manner as to recognize the child as his or her own.
128. Ibid.
129. Ibid. at 1226 [emphasis added].
130. Ibid. at 1234-35.
131. 196 A.D. 2d 7., online WL (AD) [hereinafter McDonald].
132. Ibid. at para. 7.
133. Ibid. at para. 6.
134. Ibid.
135. th 718 (1996)[hereinafter Jacycee B).
136. After a complicated determination regarding jurisdictional competency. the court of appeal felt that its job was not to decide the actual paternity of Jaycee and it made a temporary order against Mr. Buzzanca for child support. A writ was then requested, directing the family law court to determine an appropriate child support order.
137. Jaycee B., supra note 135 at 721.
138. Ibid. at 701.
139. Ibid. at 701 referring to Johnson.
140. Jaycee B, supra note 135 at 702.
141. 61 Cal. App. 4th 1410 (1998) [hereinafter Buzzanca].
142. Ibid. at 1411.
143. Ibid. at 1412.
144. Note that the court states that it made sense not to apply the provisions containing paternity presumptions in Moschetta because they were only presumptions, thereby showing that they completely overlook the implications of the social and relational aspects of the maternity argument.
145. Buzzanca, supra note 141 at 1415.
146. Ibid. at 1419.
147. Ibid. at 1420.
148. Ibid.
149. “Displacing Knowledge,” supra note 21 at 351.
150. This notion, referred to as, “dispersed kinship,’' includes those who “produce" the child with assistance as well as those who assist. Ibid. at 352.
151. C. Calhoun, “Family’s Outlaws: Rethinking the Connections Between Feminism, Lesbianism and the Family” in H.L. Nelson, ed., Feminism and Families (New York: Routledge, 1997) 131 at 143