Protecting children(?): Marriage, gender, and assisted reproductive technology

Southern California Law Review

Volumn 83, Issue 6, 2010, Pages 1177-1229

  Joslin, Courtney G ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 78249249579     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (475)

1. See, e.g., Jennifer Egan, Wanted: A Few Good Sperm, N. Y. TIMES MAG., Mar. 19, 2006, at 46
2. ("The California Cryobank, the largest sperm bank in the country, owed a third of its business to single women in 2005 . . . ."). See also Catherine DeLair, Ethical, Moral, Economic and Legal Barriers to Assisted Reproductive Technologies Employed by Gay Men and Lesbian Women, 4 DEPAUL J. HEALTH CARE L. 147, 147 (2000) (noting that increasing numbers of gay and lesbian couples are having children through ART);
3. Kyle C. Velte, Egging on Lesbian Maternity: The Legal Implications of Tri-Gametic In Vitro Fertilization, 7 AM. U. J. GENDER SOC. POL'Y & L. 431, 436 (1999) (noting that increasing numbers of unmarried couples, including lesbian and gay couples, have been using ART to create families).
4. Throughout this Article, I refer to these exclusionary parentage rules as "marriage-only ART rules."
5. Alternative insemination, also referred to as artificial insemination, is defined as "the introduction of semen into the vagina other than by coitus." STEDMAN'S MEDICAL DICTIONARY 906 (27th ed. 2000).
6. The analysis in this Article focuses on alternative insemination because the vast majority of state statutes and most of the published cases concern this form of ART. The theoretical model proffered in Part VI, however, would apply to all nonsurrogacy forms of ART. Although some of the analysis in this Article is relevant to children born through surrogacy, surrogacy is not addressed in this Article because the law regarding surrogacy is significantly more complex and varied, irrespective of the marital status of the intended parents. See, e.g., Courtney G. Joslin, Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond, 70 OHIO ST. L.J. 563, 607-09 (2009) (discussing the wide variation among state responses to surrogacy).
7. See infra notes 23-26 and accompanying text.
8. See infra notes 33-37 and accompanying text. See also COURTNEY G. JOSLIN & SHANNON P. MINTER, LESBIAN, GAY, BISEXUAL AND TRANSGENDER FAMILY LAW § 3:3, at 144-45 (2009 ed.) (noting that, as of early 2009, three states had adopted the 2002 assisted reproduction provisions of the Uniform Parentage Act that apply equally to married and unmarried couples).
9. See infra notes 39-40 and accompanying text.
10. No state has law holding to the contrary. There are, however, a number of states that do not specifically address this situation either through statute or case law. See infra notes 23-30 and accompanying text.
11. Throughout this Article, when a couple is described as being unmarried, I mean that the couple is not married or in some other comprehensive legal relationship, such as a civil union or registered domestic partnership.
12. See, e.g., John Lawrence Hill, What Does It Mean to Be a "Parent"? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353, 358 (1991) ("[T]he parental rights of the intended parents should be legally recognized from the time of conception.");
13. Anne Reichman Schiff, Frustrated Intentions and Binding Biology: Seeking AID in the Law, A4 DUKE L.J. 524, 527 (1994) (urging, in the context of alternative insemination, a parentage rule "predicated on enforcing the preconception intentions of the parties");
14. Marjorie Maguire Shultz, Reproductive Technology and IntentBased Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 398 (arguing that in the context of ART, parentage should be based on "intentional agreements").
15. But see JANET L. DOLGIN, DEFINING THE FAMILY: LAW, TECHNOLOGY, AND REPRODUCTION IN AN UNEASY AGE 178-81 (1997) (raising concerns about an intent-based model in the context of ART).
16. See supra note 1 and accompanying text.
17. For example, Lynn Wardle recently argued that "marital parenting by a child's mother and father . . . should be . . . specially protected because it provides children with optimal opportunities for healthy development and a happy childhood." Lynn D. Wardle, Form and Substance in Parentage Law, 15 WM. & MARY BILL RTS. J. 203, 222 (2006).
18. Perry v. Schwarzenegger, No. 3:09-CV-02292, 2010 U.S. Dist. LEXIS 78817 (N.D. Cal. Aug. 4, 2010).
19. Proposition 8 amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." CAL. CONST, art. I, § 7.5.
20. Defendant-Intervenors' Trial Memorandum at 9, Perry v. Schwarzenegger, No. 3:09-CV02292 (N.D. Cal. Dec. 7, 2009), available at http://www.scribd.com/ doc/23892014/Trial-Brief-of-Prop8-Proponents-Filed-12-07-09.
21. Vivian E. Hamilton, Family Structure, Children, and Law, 24 WASH. U. J.L. & POL'Y 9, 21 (2007).
22. See, e.g., Michael S. Wald, Adults' Sexual Orientation and State Determinations Regarding Placement of Children, 40 FAM. L.Q. 381, 400 (2006) (describing studies that found no "significant differences in children's development related to their parent's sexual orientation").
23. See, e.g., Cynthia Grant Bowman, Social Science and Legal Policy: The Case of Heterosexual Cohabitation, 9 J.L. & FAM. STUD. 1, 38 (2007).
24. Thus, the argument in this Article does not depend on who is correct with respect to the causal relationship between marriage and positive child welfare outcomes.
25. See, e.g., Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459, 573 (1990);
26. Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Nonbiological Lesbian Coparents, 50 BUFF. L. REV. 341, 345-46 (2002).
27. See infra Part IV.
28. This Article focuses on the rules that establish the parentage of persons who consented to alternative insemination with the intention of parenting the resulting child but who are not genetically related to the resulting child. In situations in which the unmarried male partner is a contributor of genetic material (semen), it would be more likely (although not necessarily certain) that he would be recognized as the legal parent of the resulting child. His legal status may not be certain because in many states, an unmarried man who provides sperm to a physician for use in the insemination of a woman not his wife is treated as a legal stranger to the resulting child.
29. See, e.g.. CAL. FAM. CODE § 7613(b) (West Supp. 2010) ("The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.").
30. As a matter of statutory construction, these marriage-only provisions should be applied equally to same-sex couples who are in a recognized comprehensive relationship, such as a marriage, civil union, or in California, Nevada, Oregon, or Washington, a domestic partnership.
31. See, e.g., CAL. FAM. CODE § 297.5(d) (West Supp. 2010) (providing that "[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses").
32. See also Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 970 (Vt. 2006)
33. ("If Janet had been Lisa's husband, these factors would make Janet the parent of the child born from the artificial insemination. Because of the equality of treatment of partners in civil unions, the same result applies to Lisa." (citation omitted));
34. Susan Frelich Appleton, Presuming Women: Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era, 86 B.U. L. REV. 227, 240 (2006) (noting that Vermont's civil union law "includes what amounts to a presumption of legitimacy, making both parties to a civil union the legal parents of the child that either one of them has during the union").
35. See Helene S. Shapo, Matters of Life and Death: Inheritance Consequences of Reproductive Technologies, 25 HOFSTRA L. REV. 1091, 1097 (1997)
36. (citing HARRY D. KRAUSE, FAMILY LAW 884 (3d ed. 1990)).
37. See, e.g., UNIF. PARENTAGE ACT § 5(a), 9B U.L.A. 407 (2001) [hereinafter 1973 UPA] (providing that a husband who consents to his wife's insemination "is treated in law as if he were the natural father of a child thereby conceived").
38. ALA. CODE § 26-17-703 (LexisNexis Supp. 2009);
39. ALASKA STAT. § 25.20.045 (2008);
40. ARIZ. REV. STAT. ANN. § 25-501(B) (2007);
41. ARK. CODE ANN. § 9-10-201(a) (Supp. 2005);
42. CAL. FAM. CODE § 7613(a) (West Supp. 2010);
43. COLO. REV. STAT. § 19-4-106(1) (2002);
44. CONN. GEN. STAT. ANN. § 45a774 (West 2005);
45. DEL. CODE ANN. tit. 13, § 8-703 (Supp. 2009);
46. D.C. CODE §16-909(a) (2010);
47. FLA. STAT. ANN. §741.11(1) (West 2005);
48. GA. CODE ANN. §19-7-21 (2004);
49. IDAHO CODE ANN. § 395405(3) (Supp. 2009);
50. 750 ILL. COMP. STAT. ANN. 40/3(a) (West 2009);
51. KAN. STAT. ANN. § 23-129 (2007);
52. LA. CIV. CODE ANN. art. 188 (Supp. 2010);
53. MASS. GEN. LAWS ANN. ch. 46, § 4B (West 2009);
54. MICH. COMP. LAWS ANN. § 333.2824(6) (West 2001);
55. MINN. STAT. § 257.56 (2000);
56. Mo. ANN. STAT. § 210.824 (West 2004);
57. MONT. CODE ANN. § 40-6-106 (2009);
58. NEV. REV. STAT. ANN. § 126.061 (LexisNexis 2004);
59. N.J. STAT. ANN. § 9:17-44 (West 2002);
60. N.M. STAT. ANN. § 40-11A-703 (Supp. 2009);
61. N.Y. DOM. REL. LAW § 73(1) (McKinney Supp. 2010);
62. N.C. GEN. STAT. § 49A-1 (2009);
63. N.D. CENT. CODE § 14-20-61 (Supp. 2009);
64. OHIO REV. CODE ANN. § 3111.95(A) (LexisNexis 2008);
65. OKLA. STAT. ANN. tit. 10, § 552 (West 2009);
66. OR. REV. STAT. § 109.243 (2009);
67. TENN. CODE ANN. § 68-3-306 (2001);
68. TEX. FAM. CODE ANN. § 160.703 (Vernon Supp. 2008);
69. UTAH CODE ANN. § 78B-15-703 (Supp. 2008);
70. WASH. REV. CODE ANN. § 26.26.710 (West 2005);
71. WIS. STAT. ANN. § 891.40 (West 1997);
72. WYO. STAT. ANN. § 14-2-903 (2009).
73. 750 ILL. COMP. STAT. ANN. 40/3(a).
74. See id.
75. See, e.g., LA. CIV. CODE ANN. art. 188 ("The husband of the mother may not disavow a child born to his wife as a result of an assisted conception to which he consented.");
76. MASS. GEN. LAWS ANN. ch. 46, § 4B ("Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.").
77. See, e.g., Brown v. Brown, 125 S.W.3d 840, 844 (Ark. Ct. App. 2003);
78. In re Marriage of Adams, 528 N.E.2d 1075 (Ill. App. Ct. 1988), rev y, 551 N.E.2d 635, 640 (Ill. 1990);
79. Levin v. Levin, 645 N.E.2d 601, 605 (Ind. 1994);
80. R.S. v. R.S., 670 P.2d 923 (Kan. Ct. App. 1983);
81. K.S. v. G.S., 440 A.2d 64, 68 (N.J. Super. Ct. Ch. Div. 1981);
82. Anonymous v. Anonymous, 246 N.Y.S.2d 835 (Sup. Ct. 1964);
83. Gursky v. Gursky, 242 N.Y.S.2d 406 (Sup. Ct. 1963);
84. Jackson v. Jackson, 739 N.E.2d 1203 (Ohio Ct. App. 2000);
85. In re Doe, 353 S.E.2d 877, 878 (S.C. 1987);
86. K.B. v. N.B., 811 S.W.2d 634, 649 (Tex. App. 1991).
87. For example, all of the cases cited supra note 29 involve heterosexual couples. By contrast, as noted infra note 31 and the accompanying text, only one final appellate decision has held that the consent = legal parent rule should be applied equally to a same-sex couple who were not in a comprehensive legal relationship.
88. Shineovich v. Kemp, 214 P.3d 29, 39-40 (Or. Ct. App. 2009) (holding that the Oregon Constitution requires marriage-based alternative insemination be applied equally to same-sex couples).
89. Cf. Dunkin v. Boskey, 98 Cal. Rptr. 2d 44, 54-55 (Ct. App. 2000) (noting in dicta that an unmarried man who had a child with his female partner through assisted reproduction should be considered the legal parent of the resulting child);
90. In re Parentage of M.J., 787 N.E.2d 144, 152 (Ill. 2003) (holding that the relevant state marriage-based statutory provision did not preclude the unmarried woman's claims for child support "based on common law theories of oral contract or promissory estoppel");
91. In re A.B., 818 N.E.2d 126, 131-32 (Ind. Ct. App. 2004)
92. (applying the consent = legal parent rule to an unmarried same-sex couple), vacated on procedural grounds sub nom. King v. S.B., 837 N.E.2d 965 (Ind. 2005).
93. See supra note 1.
94. DEL. CODE ANN. tit. 13, § 8-703 (Supp. 2009).
95. N.M. STAT. ANN. § 40-11A-703 (Supp. 2009).
96. N.D. CENT. CODE § 14-20-61 (Supp. 2009).
97. WYO. STAT. ANN. § 14-2-903 (2009).
98. D.C. CODE § 16-909(e)(1) (Supp. 2010).
99. While there are constitutional, statutory, and policy arguments that can be made as to why these marriage-based statutes should be applied equally to unmarried couples, at best it remains unclear whether a court would reach that conclusion in any particular case. Only one published decision has held that these marriage-based alternative insemination statutes must be applied equally to unmarried couples who have children through alternative insemination.
100. Shineovich v. Kemp, 214 P.3d 29, 39-40 (Or. Ct. App. 2009).
101. DEL. CODE ANN. tit. 13, § 8-703 (Supp. 2009) (emphasis added). Again, while there are strong statutory, constitutional, and public policy arguments as to why even this gendered provision, as well as similar provisions in other states, should be applied equally to same-sex couples,
102. see, e.g., JOSLIN & MlNTER, supra note 5, at 156-58, to date, there is no published case law addressing whether such provisions must be applied equally without regard to the sex or sexual orientation of the intended parents.
103. N.D. CENT. CODE § 14-20-61 ("A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in section 14-20-62 with the intent to be the parent of her child, is a parent of the resulting child. Parentage of a child born to a gestational carrier is governed by chapter 14-18.");
104. WYO. STAT. ANN. § 14-2-903 ("A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in W.S. 14-2-904, with the intent to be the parent of her child, is the parent of the resulting child.").
105. N.M. STAT. ANN. § 40-HA-703 (Supp. 2009)
106. ("A person who provides eggs, sperm or embryos for or consents to assisted reproduction as provided in Section 7-704 [40-11A-704 NMSA 1978] of the New Mexico Uniform Parentage Act with the intent to be the parent of a child is a parent of the resulting child." (emphasis added));
107. D.C. CODE § 16-909(e)(1) (Supp. 2010) ("A person who consents to the artificial insemination of a woman as provided in subparagraph (A) or (B) of this paragraph with the intent to be the parent of her child, is conclusively established as a parent of the resulting child." (emphasis added)).
108. This result is true despite the fact that there are very few states that expressly limit unmarried women's access to reproductive technologies. See Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 GEO. WASH. L. REV. 1457, 1457 (2008) (noting that there is virtually no regulation of ART in the United States);
109. Richard F. Storrow, Rescuing Children from the Marriage Movement: The Case Against Marital Status Discrimination in Adoption and Assisted Reproduction, 39 U.C. DAVIS L. REV. 305, 311 & n. 20 (2006)
110. ("Some states specifically ban the use of artificial insemination by all but married couples, a more restrictive position than even that taken by the 1973 UPA."). There may, however, be numerous practical barriers to single women's ability to access ART.
111. See, e.g., Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEY J. GENDER L. & JUST. 18, 43 (2008) ("[S]ingle women and same-sex couples face reduced access from at least two additional sources: provider discrimination against single and lesbian women, and legislative efforts to ban access to unmarried individuals.");
112. Andrea D. Gurmankin, Arthur L. Caplan & Andrea M. Braverman, Screening Practices and Beliefs of Assisted Reproductive Technology Programs, 83 FERTILITY & STERILITY 61, 66 (2005) (finding that 10 percent of alternative reproductive programs would be "very or extremely likely to tum away" single women). Thus, states generally permit these families to be formed, but then, for the most part, exclude children born into these families from the relevant parentage provisions.
113. See 1973 UPA, supra note 24, § 5 cmt., 9B U.L.A. 408 (2001) (explaining the use of the terms "husband" and "wife" in section 5 of the 1973 UPA as follows: "This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was though useful, however, to single out and cover in this Act at least one fact situation that occurs frequently").
114. Shultz, supra note 9, at 323. Since Shultz's groundbreaking article was published almost two decades ago, other scholars have made similar calls.
115. See, e.g., Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 HASTINGS L.J. 597, 602 (2002) (arguing that "the privilege of intentional parenthood should be extended, as a matter of sound family law policy, to the unmarried").
116. See supra note 1.
117. UNIF. PARENTAGE ACT § 703 cmt. (amended 2002),
118. 9B U.L.A. 70 (Supp. 2010)
119. [hereinafter 2002 UPA] (noting that the provision addressing assisted reproduction applies to marital and nonmarital children). Although they are marital-status neutral, the assisted reproduction provisions of the 2002 UPA continue to be written in gendered terms.
120. See, e.g., id. (referring to a "man" and a "woman").
121. As noted above, 2002 was the year that a marriage-neutral uniform law on the subject became available for adoption by the states.
122. For example, Alabama and Utah both adopted versions of the revised 2002 UPA after 2002, and both adopted exclusionary marriage-based ART rules, rather than the marriage-neutral versions of the 2002 UPA. H.B. 39, Art. 7, 2008 Leg., Reg. Sess. (Ala. 2008) (enacting a version of the UPA in which the assisted reproductive provisions apply only to children born to married couples);
123. S.B. 14, Part 7, 2005 Gen. Sess. (Utah 2005) (same).
124. In addition, two other states-Texas and Colorado-made amendments to their UPA provisions after 2002, but did not adopt the provisions of the 2002 UPA that make the assisted reproduction provisions applicable without regard to marital status. S.B. 1807, 2003 Leg., Reg. Sess. (Tex. 2003) (amending portions of the Texas Parentage Act);
125. S.B. 03-079, 2003 Gen. Assemb., Reg. Sess. (Colo. 2003) (amending portions of the Colorado Parentage Act).
126. Alternative insemination statutes that exclude children born to unmarried couples arguably impermissibly discriminate on the bases of marital status, sex, and sexual orientation, and raise due process concerns.
127. Cf. Rao, supra note 42, at 1475-76 (arguing that laws limiting ART to married persons discriminate on the bases of marital status and sexual orientation);
128. John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE W. RES. L. REV. 323, 330 (2004)
129. ("Once it is recognized that both married and unmarried persons have a liberty right to reproduce, including the right to use different ART combinations when infertile or when necessary to ensure a healthy offspring, there is no compelling reason for denying that right to persons because of their sexual orientation."). The goal of this Article, however, is not to assess the constitutionality of such statutory distinctions. Rather, the goal is to assess the practical impact of these exclusionary statutes on the financial wellbeing of nonmarital children born through assisted reproduction.
130. See, e.g., Hamilton, supra note 15, at 24 (noting that one justification for preferential treatment of marital families is the interest in "encouraging stable relationships"). Not all couples who are in committed, stable relationships are married, of course. Some stable couples-including most same-sex couples-are prohibited from marrying. Other couples in stable relationships may have other reasons for choosing not to marry.
131. Brief of Appellees, Lofton v. Kearney, No. 01-16723-DD (11th Cir. July 1, 2002), 2002 WL 32868748, at * 16.
132. Wardle, supra note 11, at 222.
133. Application for Permission to File Amici Curiae Brief and Amici Curiae Brief of the Church of Jesus Christ of Latter-Day Saints, California Catholic Conference, National Association of Evangelicals, and Union of Orthodox Jewish Congregations of America in Support of Respondent State of California at 37, In re Marriage Cases, No. S147999 (Cal. Sept. 26, 2007), available at htm://www.courtmfo.ca.gov/courts/supreme/highprofile/documents/ calcathconfamicus.pdf.
134. See Lynn D. Wardle, Children and the Future of Marriage, 17 REGENT U. L. REV. 279, 301 (2005) ("[M]any of this generation are more concerned with rejecting the institution of marriage than they are with establishing the strongest foundations for their own commitment to a companion and providing the best setting for raising their own children (which, ironically, is traditional marriage).").
135. Id. at 308.
136. Lynn D. Wardle, Global Perspective on Procreation and Parentage by Assisted Reproduction, 35 CAP. U. L. REV. 413, 453 (2006).
137. William C. Duncan, The Social Good of Marriage and Legal Responses to Non-Marital Cohabitation, 82 OR. L. REV. 1001, 1025 (2003). There may be others who support marriage-only parentage rules for different reasons. For example, some may support marriage-only assisted reproduction rules on the ground that they want to discourage people who are not in stable relationships from having children through ART.
138. See supra note 13.
139. Defendant-Intervenors' Trial Memorandum at 9, Perry v. Schwarzenegger, No. 3:09-CV02292 (N.D. Cal. Dec. 7, 2009), available at http://www.scribd.com/ doc/23892014/Trial-Brief-of-Prop8-Proponents-Filed-12-07-09.
140. Hamilton, supra note 15, at 21.
141. See also Sara McLanahan, Fragile Families and the Reproduction of Poverty (2008) (working paper), available at http://crcw.princeton.edu/workingpapers/ WP08-04-FF.pdf ("[C]hildren who live with parents who are stably cohabiting do not differ from children raised by married parents.").
142. Hamilton, supra note 15, at 12.
143. Id.
144. Id. at 19.
145. Cf. Storrow, supra note 42, at 309 (arguing that "favoritism toward marriage in adoption and assisted reproduction relates neither to the purposes of marriage nor to child welfare").
146. See, e.g., Wald, supra note 16, at 400.
147. Bowman, supra note 17, at 38 ("The argument that to give legal status to cohabitants will harm the ideal embodied in marriage assumes that refusal to recognize cohabitation will lead people to marry instead . . . . Arguments to this effect are seriously flawed . . . .").
148. In a second-parent or coparent adoption, the court permits a second person to become a child's second legal parent without terminating or affecting the rights of the existing legal parent. See, e.g., Jane S. Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoptions, 75 CHI.-KENT L. REV. 933, 934 (2000) ("In the last several years, courts in at least twentyone states have authorized [second-parent] adoption.").
149. See LISA BENNETT & GARY J. GATES, HUMAN RIGHTS CAMPAIGN FOUND., THE COST OF MARRIAGE INEQUALITY TO CHILDREN AND THEIR SAME-SEX PARENTS 7 (2004), http://www.hrc.org/documents/costkids.pdf.
150. In California, the home study alone for an independent adoption costs $4500. See CAL. FAM. CODE §8810 (West 2008);
151. Cal. Dep't of Soc. Servs., Adoption FAQs, http://www.childsworld.ca.gov/ PG1302.htm (last visited Aug. 20, 2010) (noting costs including fingerprinting, medical examinations, court filings, and investigations of independent adoption petitions). This figure does not include other expenditures, such as attorney's fees.
152. Polikoff, supra note 19, at 472.
153. Cf. Jacobs, supra note 19, at 346 ("[T]he consequences for a child who is separated from his lesbian coparent can be absolutely devastating.").
154. A few states have statutory provisions that permit someone who is not a legal parent to seek custody or visitation over the objection of the legal parent in certain delineated circumstances. See, e.g., COLO. REV. STAT. § 14-10123(c) (2002) (permitting a person who had physical care of a child for six months or more to commence an action for allocation of parental responsibilities);
155. D.C. CODE § § 16-831.01, 16-831.03 (2010) (permitting "de facto" parents, as defined by statute, to seek custody or visitation);
156. MINN. STAT. § 257C.08 subd. 4 (2006) (permitting a person who has lived with a child for two years or more to seek visitation rights);
157. TEX. FAM. CODE ANN. § 102.003(a)(9) (Vemon Supp. 2009) (giving a person who had "actual care, control, and possession of [a] child for at least six months ending not more than 90 days preceding the date of the filing to the petition" standing to file an original action).
158. See Polikoff, supra note 19, at 573.
159. See, e.g., Deborah L. Forman, Same-Sex Partners: Strangers, Third Parties, or Parents? The Changing Legal Landscape and the Struggle for Parental Equality, 40 FAM. L.Q. 23, 25-26 (2006) (noting that courts have exercised equitable discretion to grant custody and visitation rights to same-sex coparents as third parties "in approximately a dozen states").
160. Id. at 27-30 (discussing cases in which courts applied various equitable doctrines to permit a woman to seek custody or visitation with a child she previously coparented with her former same-sex partner).
161. See supra text accompanying notes 31-41.
162. See. e.g., Alison D. v. Virginia M., 77 N.Y.2d 651, 657 (NY. 1991) (declining "to read the term parent in [state law] to include categories of nonparents who have developed a relationship with a child or who have had prior relationships with a child's parents and who wish to continue visitation with the child");
163. Behrens v. Rimland, 822 N.Y.S.2d 285, 286 (App. Div. 2006) (affirming a family court finding that a former same-sex partner lacked standing to seek visitation with the child that she coparented for five years);
164. Janis C. v. Christine T., 742 N.Y.S.2d 381, 382-83 (App. Div. 2002) (holding that a former same-sex partner lacked standing under equitable estoppel to seek visitation with the child that she coparented with her former partner).
165. See, e.g., In re C.B.L., 723 N.E.2d 316, 317, 320-21 (Ill. Ct. App. 1999) (holding that a former same-sex partner lacked standing to seek visitation with the child that she had coparented with her former partner).
166. See, e.g., McGuffin v. Overton, 542 N.W.2d 288, 289, 292 (Mich. Ct. App. 1995) (holding that a former same-sex partner lacked standing to seek custody of the children she coparented with her former partner after her former partner's death).
167. See, e.g., Kazmierazak v. Query, 736 So.2d 106, 110 (Fla. Ct. App. 1999) (holding that a psychological but nonlegal parent lacks standing to seek custody or visitation rights);
168. Janice M. v. Margaret K., 948 A.2d 73, 74 (Md. 2008) ("We shall hold that de facto parenthood is not recognized in Maryland.");
169. Jones v. Barlow, 154 P.3d 808, 816 (Utah 2007) (declining to apply equitable parenting doctrines to a former same-sex partner).
170. See, e.g., Pamela J. Smock & Wendy D. Manning, Living Together Unmarried in the United States: Demographic Perspectives and Implications for Family Policy, 26 LAW & POL'Y 87, 94 (2004).
171. Jeanne Brooks-Gunn & Greg J. Duncan, The Effects of Poverty on Children, FUTURE OF CHILD., Summer-Fall 1997, at 55, 57.
172. See also Thomas L. Hanson, Sara McLanahan & Elizabeth Thomson, Economic Resources, Parental Practices, and Children's Well-Being, in CONSEQUENCES OF GROWING UP POOR 190, 190 (Greg J. Duncan & Jeanne Brooks-Gunn eds., 1997) (reviewing literature and concluding that "[cjhildren from economically disadvantaged families exhibit lower levels of physical development, cognitive functioning, academic achievement, self-esteem, social development, and self-control than do children from more advantaged families").
173. Brooks-Gunn & Duncan, supra note 79, at 61 ("The poorer children scored between 6 and 13 points lower on various standardized tests of IQ, verbal ability, and achievement.").
174. See Nazli Baydar & Jeanne Brooks-Gunn, The Dynamics of Child Support and its Consequences for Children, in CHILD SUPPORT AND CHILD WELL-BEING 257, 279 (Irwin Garfinkel, Sara S. McLanahan & Philip K. Robins eds., 1994) ("[P]er capita family income and changes in per capita family income have significant positive effects on reading achievement . . . .");
175. John W. Graham, Andrea H. Beller & Pedro M. Hernandez, The Effects of Child Support on Educational Attainment, in CHILD SUPPORT AND CHILD WELL-BEING,
176. supra, at 317, 328 ("As might be expected, total family income is also strongly related to child's education.").
177. Brooks-Gunn & Duncan, supra note 79, at 62 ("[P]oor children suffer from emotional and behavior problems more frequently than do nonpoor children.").
178. Virginia W. Knox, The Effects of Child Support Payments on Developmental Outcomes for Elementary School-Age Children, 31 J. HUM. RESOURCES 816, 833 (1996) ("[I]ncreases in overall family income appear to add to the level of cognitive stimulation available in children's homes . . . .");
179. H. Elizabeth Peters & Natalie C. Mullis, The Role of Family Income and Sources of Income in Adolescent Achievement, in CONSEQUENCES OF GROWING UP POOR,
180. supra note 79, at 340, 376 ("[I]ncreases in income at all levels of socioeconomic status will improve outcomes.").
181. See, e.g., Laura M. Argys et al., The Impact of Child Support on Cognitive Outcomes of Young Children, 35 DEMOGRAPHY 159, 159 (1998) ("Some recent empirical studies have found that child-support income is more beneficial to children than other sources of family income."); Graham, Beller & Hernandez, supra note 81, at 343 ("[W]e have found that increases in child support payments appear to have stronger effects than equal increases in other sources of income.");
182. Knox, supra note 83, at 833 ("While other types of family income may have positive effects as well [on achievement test scores of elementary school children], the effects of child support appear to be particularly positive, and remain statistically significant after using several methods to address the problem of unmeasured differences among families and among states.").
183. Virginia W. Knox & Mary Jo Bane, Child Support and Schooling, in CHILD SUPPORT AND CHILD WELL-BEING,
184. supra note 81, at 285, 308.
185. Knox, supra note 83, at 833 ("[T]he results from this study suggest that child support payments received in single-parent years improve the achievement test scores of elementary children.").
186. Argys et al., supra note 84, at 159.
187. Knox & Bane, supra note 85, at 303.
188. See also Graham, Beller & Hernandez, supra note 81, at 329 ("Among children eligible for child support, those who receive some support almost uniformly face a smaller overall disadvantage in their educational attainment compared to children in intact twoparent families than those who receive none.").
189. Graham, Beller & Hernandez, supra note 81, at 329.
190. Argys et al., supra note 84, at 171.
191. Marsha Garrison, Child Support Policy: Guidelines and Goals, 33 FAM. L.Q. 157, 158 (1999).
192. ADAM P. ROMERO et al, WILLIAMS INST., CENSUS SNAPSHOT: UNITED STATES 3 (2007), http://www.law.ucla.edu/williamsinstitute/publications/USCensusSnapshot. pdf [hereinafter WILLIAMS INST., CENSUS SNAPSHOT].
193. At the time the census was done in 2000, no state in the United States permitted same-sex couples to marry. While the legal landscape has changed somewhat in the last decade, even today, most same-sex couples with children cannot marry in their home states. Moreover, even those couples who are recognized as married by their home states are not considered married by the federal government or by the vast majority of other states.
194. See, e.g., 1 U.S.C. § 7 (2006);
195. HUMAN RIGHTS CAMPAIGN, STATEWIDE MARRIAGE PROHIBITIONS (2010), http://www.hrc.org/documents/ marriage-prohibitions-2009.pdf (noting that, as of January 13, 2010, forty-one states had statutory or constitutional provisions, or both, providing that the state would not recognize or enforce marriages between two people of the same sex).
196. While a number of recent decisions have held that 1 U.S.C. § 7 is unconstitutional, see, e.g., In re Levinson, 587, F.3d 925 (9th Cir. 2009);
197. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 396 (D. Mass. 2010) (holding section 3 of the Defense of Marriage Act unconstitutional as applied to the plaintiffs);
198. Massacussetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 248-49 (D. Mass. 2010) (holding section 3 of the Defense of Marriage Act unconstitutional), validly married same-sex couples continue to be denied federal marital rights and obligations.
199. WILLIAMS INST., CENSUS SNAPSHOT, supra note 92, at 3.
200. See, e.g., R. BRADLEY SEARS & M.V. LEE BADGETT, WILLIAMS INST., SAME-SEX COUPLES AND SAME-SEX COUPLES RAISING CHILDREN IN CALIFORNIA: DATA FROM CENSUS 2000, at 15 (2004), http://www.law.ucla.edu/williamsinstitute/ publications/CalifomiaCouplesReport.pdf [hereinafter WILLIAMS INST., SAME-SEX COUPLES IN CALIFORNIA] (finding that the homes that same-sex couples with children in California own tend to be less valuable than the homes owned by married heterosexual parents).
201. The Fragile Families and Child Wellbeing Study ("Fragile Families Study") is a longitudinal study following almost 5000 children in regular intervals after birth. For more information about the Fragile Families Study, see Fragile Families Home Page, http://www.fragilefamilies.princeton. edu/index.asp (last visited Sept. 6, 2010).
202. FRAGILE FAMILIES AND CHILD WELLBEING STUDY, FRAGILE FAMILIES RESEARCH BRIEF: MOTHERS' AND CHILDREN'S POVERTY AND MATERIAL HARDSHIP IN THE YEARS FOLLOWING A NONMARITAL BIRTH 2 (2008), http://www.fragilefamilies.princeton.edu/ briefs/ResearchBrief41.pdf.
203. Id.
204. McLanahan, supra note 60 (manuscript at 23).
205. The fact that most of the cases described in this section involve
206. See, e.g., Garrison, supra note 91, at 157 ("Close to 50 percent of families receiving federal welfare benefits become eligible for benefits as a result of marital separation or divorce.");
207. id. at 157 n.1 ("Researchers currently estimate that half to three-quarters of children born in the late 1970s or 1980s will spend some portion of their childhood years in a single-parent household.").
208. See supra notes 79-91 and accompanying text.
209. See Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 GA. L. REV. 649, 660 (2008) ("The 1984 Child Support Enforcement Amendments required all states to allow children to sue their biological father for paternity until the child's eighteenth birthday and to promulgate child support guidelines that imposed child support payments commensurate with a biological parent's income." (footnote omitted)). Historically, nonmarital parents' obligation to support their children varied greatly from state to state.
210. Id. at 659.
211. HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 4.4 (2d ed. 1988).
212. Polikoff, supra note 19 (advocating that courts must "develop a new definition of legal parent to solve [the] inconsistencies and uncertainties").
213. See, e.g., Deborah H. Wald, The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent, and Parental Conduct in Determining Legal Parentage, 15 AM. U. J. GENDER SOC. POL'Y & L. 379, 392 (2007)
214. (noting that of the twenty states that, at that time, had considered whether the same-sex partner of a lesbian mother can petition for custody or visitation rights, "[a]t least thirteen of those states have awarded some degree of parental rights to non-biological lesbian mothers, relying on a variety of theories including psychological parenthood, de facto parenthood, in loco parentis, and equitable parenthood").
215. See also Forman, supra note 71, at 25-26 ("Advocates made some headway through other theories or by convincing the court to move beyond the statutory framework to exercise its equitable powers. Courts in approximately a dozen states have allowed partners to seek custody or visitation as third parties.");
216. Jacobs, supra note 19, at 354 ("In the last decade, however, several state courts have permitted lesbian coparents ongoing visitation with their nonbiological children. . . . These cases have relied upon general third party equitable principles to provide standing for the petitioning lesbian coparent.").
217. See. e.g., C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004);
218. E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999);
219. In re Parentage of L.B., 122 P.3d 161 (Wash. 2005).
220. See, e.g., T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001);
221. Jones v. Jones, 884 A.2d 915 (Pa. Super. Ct. 2005).
222. See, e.g., V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000).
223. To be clear, in the states that recognize these doctrines, the relevant question is whether the functional parent formed a parent-child relationship with the child and whether, at the time the relationship was formed, it was consented to and encouraged by the genetic parent.
224. See, e.g., id. at 552.
225. The fact that the legal parent may no longer consent at some point in the future is irrelevant.
226. See id.
227. In re Custody of H.S.H.-K. (Holtzman), 533 N.W.2d 419, 435 (Wis. 1995).
228. Id. at 421.
229. See also L.M.S. v. C.M.G., No. CN04-08601, 2006 Del. Fam. Ct. LEXIS 298, at *60 (Fam. Ct. June 27, 2006) (agreeing with the reasoning of a case relying on the Holtzman test);
230. V.C., 748 A.2d at 551-52 (adopting the Holtzman test);
231. Marquez v. Caudill, 656 S.E.2d 737, 743-44 (S.C. 2008) (approving the court of appeal's reliance on the Holtzman test).
232. As others have noted, even where these doctrines are applied in the context of custody and visitation actions, these doctrines leave serious gaps in the level and scope of protection provided. For example, Melanie Jacobs has explained that in the context of custody and visitation actions, these doctrines generally do not "establish legal parity between the [nonbiological] coparent and her former partner."
233. Jacobs, supra note 19, at 366-67.
234. See also Forman, supra note 71, at 31 (noting that most states recognizing equitable parenting theories in the context of custody and visitation actions "treat[] same-sex coparents as third parties with limited rights and/or heavier burdens to establish those rights");
235. E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother's Consent to the Biological Father's Co-Parenting of Her Child, 48 ARIZ. L. REV. 97, 127-28 (2006) ("In most cases, the functional parent will be at a substantive legal disadvantage when competing with the former partner or other legal family members of the former partner for custody and visitation rights with respect to the functional child.").
236. See, e.g., Caroline P. Blair, Note, It's More than a One Night Stand: Why a Promise to Parent Should Obligate a Former Lesbian Partner to Pay Child Support in the Absence of a Statutory Requirement, 39 SUFFOLK U. L. REV. 465, 466 (2006) ("There are many cases involving non-biological gay litigants seeking custody and/or visitation of children to whom they consider themselves a parent, but few address the liability of a non-biological gay parent to pay child support.").
237. L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. Ct. 2002).
238. Id. at 874-75.
239. Id. at 875.
240. Id.
241. Id. at 878 ("[E]quity mandates that H.A.N, cannot maintain the status of in loco parentis to pursue an action as to the children, alleging she has acquired rights in relation to them, and at the same time deny any obligation for support merely because there was no agreement to do so.").
242. Id. at 877-78.
243. In re Parentage of M.J., 787 N.E.2d 144, 152 (Ill. 2003) (holding that the relevant state statutory provision did not preclude the unmarried woman's claims for child support "based on common law theories of oral contract or promissory estoppel" and remanding the claim for further proceedings). There are a few additional non-ART cases in which courts held that men were responsible to support children born to their nonmarital female partners despite the men's lack of genetic connection to the children.
244. See, e.g., Wright v. Newman, 467 S.E.2d 533, 535 (Ga. 1996)
245. (requiring an unmarried man to support a child born to his former nonmarital female partner where he had promised he would assume all of the rights and obligations of parenthood and, based on that promise, the mother had refrained from seeking support from the child's biological parent);
246. Shondel J. v. Mark D., 853 N.E.2d 610, 611 (N. Y. 2006)
247. (holding that "a man who has mistakenly represented himself as a child's father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man's representation of paternity, to the child's detriment"). Again, however, such holdings are rare.
248. A Delaware trial court reached a similar conclusion, although it did so in an unpublished decision. Chambers v. Chambers, No. CN99-09493, 00-09295, 2005 Del. Fam. Ct. LEXIS 1, at *22 (Fam. Ct. Jan. 12, 2005)
249. (holding that a woman was responsible to provide support for a child she had with her former same-sex partner through alternative insemination because she was a psychological parent and because her actions "both pre-conception and post-birth caused [her former partner] to form a reasonable expectation that [the child] would be supported by [her]").
250. See also Smith v. Smith, 893 A.2d 934, 935 (Del. 2006) (noting that the trial court had ordered the equitable parent to pay child support; this order was not appealed).
251. See infra notes 124-31 and accompanying text.
252. See supra notes 109-11 and accompanying text.
253. See also June Carbone, The Role of Adoption in Winning Public Recognition for Adult Partnerships, 35 CAP. U. L. REV. 341, 361 n.131 (2006)
254. ("[Categories such as 'psychological parent,' 'de facto parenthood,' 'in loco parentis,' parenthood by estoppel, and second-parent adoption generally depend on a relationship established over time and provide no security to partners who would like their status recognized at the child's birth.").
255. The other case is T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004).
256. On appeal, the Massachusetts high court held that even assuming a de facto parent has a responsibility to support the child she parented (an issue the court declined to decide),
257. id. at 1253 n.12,
258. the nonbirth partner could not be ordered to support the child born to her former partner through assisted reproduction because the nonbirth partner did not have a "long-term relationship with the child,"
259. id. at 1253.
260. State ex rel. D.R.M., 34 P.3d 887 (Wash. Ct. App. 2001).
261. Id. at 890.
262. Id.
263. Id.
264. Id. at 895 (noting that the biological parent "relied on [her former partner's] statements, acts, and financial support when making her decision to become pregnant").
265. Id. at 890.
266. Id. at 894.
267. See also id. at 897 ("The child did not reside with Wood and was not held out as her own . . . . [T]he facts before us do not support a conclusion that Wood is estopped from denying a promise to adopt or to support the child.").
268. Richard Storrow has noted the possibility that under equitable parentage theories, courts could look to parenting activities prior to the birth of the child, including the planning for and joint participation in conception, in assessing whether a particular person is an equitable parent.
269. See, e.g., Storrow, supra note 44, at 640 ("It would be reasonable . . . to read the doctrine of intentional parenthood as included within the scope of functional parenthood . . . . To effect this reading will require an understanding of the concept of functional parenthood as inclusive of expressions of intention made before the child's birth.").
270. While it is true that some courts have looked to prebirth conduct as additional support for the conclusion that the person is an equitable parent, the practical reality is that no court has found that a person was an equitable parent based solely on prebirth conduct, without the formation of a postbirth parent-child relationship.
271. As noted above, very few jurisdictions have addressed this issue and even fewer have reached this conclusion.
272. Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005).
273. Because the decision in Elisa B. was premised on a statutory parentage provision, it is not an "equitable parenting" decision. The case is discussed here, however, because the basis for the statutory parenting presumption is similar (though not identical) to the equitable in loco, de facto, and psychological parenting theories discussed above. The Elisa B. court declined the invitation of the parties to apply the consent = legal parent rule to children born to unmarried couples.
274. Elisa B., 117 P.3d at 670 ("We conclude, therefore, that [the same-sex partner] is a presumed mother of the twins under section 7611, subdivision (d), because she received the children into her home and openly held them out as her natural children."). The holding out presumption is found in CAL. FAM. CODE § 7611(d) (West Supp. 2010), which creates a presumption of parentage where a man "receives the child into his home and openly holds out the child as his natural child." Based on established California case law and consistent with the California parentage provisions, the court held that the holding out presumption must be applied equally to women. Elisa B., 117 P.3d at 667.
275. Charisma R. v. Kristina S., 96 Cal. Rptr. 3d 26, 39 (Ct. App. 2009). Thus, unlike the equitable doctrines described above, it may be possible for a person to establish a presumption of parentage under the holding out presumption even in cases in which the child is very, very young.
276. See, e.g., id. at 31 (holding that a woman was entitled to the presumption under the holding out provision even though she only lived with and parented the child for three months).
277. CAL. FAM. CODE § 7611(d).
278. Cf. Adoption of Michael H., 898 P.2d 891, 895 (Cal. 1995) ("[T]o become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home.").
279. Moreover, the 2002 UPA adds a new two-year requirement to the holding out provision.2002 UPA, supra note 46, § 204(a)(5), 9B U.L.A. 22 (Supp. 2010) (providing that a man is entitled to a presumption of paternity if he has lived with the child and openly held the child out as his own "for the first two years of the child's life"). Accordingly, the holding out provision of the 2002 UPA likely would not protect a child where the nongenetic, intended parent never lived with or established a relationship with the child.
280. Under the ALI Principles, a parent by estoppel is entitled to all of the "privileges of a legal parent" with respect to "allocation of decisionmaking responsibilities" and "custodial responsibility." AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 2.03 cmt. b, at 121 (2002) [hereinafter ALI PRINCIPLES].
281. Id. § 2.03(l)(b)(iii), at 117.
282. See also Storrow, supra note 44, at 674 ("[S]ince the Principles do not recognize non-biologically-linked parentage rights arising solely from events occurring before the birth of a child, they provide rather infertile ground upon which to extend the privilege of intentional parenthood to the unmarried." (emphasis omitted)).
283. Moreover, as discussed in more detail below, under the ALI Principles, while a parent by estoppel has all of the custodial rights of a legal parent, a parent by estoppel is not necessarily responsible for supporting the child. See, e.g., Katharine K. Baker, Asymmetric Parenthood, in RECONCEIVTNG THE FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTE'S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 121, 126-27 (Robin Fretwell Wilson ed., 2006) ("A person who has a right to estop a legal parent from contesting his parental status receives custodial rights under the Principles equal to a legal parent, but that same person is not necessarily himself stopped from denying a support obligation in chapter 3." (footnote omitted)).
284. The District of Columbia has a statutory provision that is very similar to the ALI parent-byestoppel principle. D.C. CODE § 16-831.01(1)(A) (2009). Like the ALI Principles, the D.C. provision requires the person to have lived with the child at some point after birth.
285. See supra text accompanying notes 125-31. This was also the situation faced by the biological parent in Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005). Because one of the women earned substantially more than the other, the couple-Emily and Elisa-decided that the lower wage earner-Emily-'"would be the stay-at-home mother' and Elisa[-the higher wage earner-J'would be the primary breadwinner for the family.'" Id. at 663. After the birth of the couple's three children, Elisa did provide the primary financial support for the family for a time. Id. When this support ended, however, Emily was forced to seek support from the state. Id.
286. In 2000, no U.S. state permitted same-sex couples to marry. Cf. HUMAN RIGHTS CAMPAIGN, MARRIAGE EQUALITY & OTHER RELATIONSHIP RECOGNITION LAWS (2010), http://www.hrc.org/ documents/Relationship-Recognition-Laws-Map.pdf (listing states that permit same-sex couples to marry or to enter into some other type of comprehensive legal relationship).
287. Todd Brower, It's Not Just Shopping, Urban Lofts, and the Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts, 17 AM. U. J. GENDER Soc. POL'Y & L. 1, 30 (2009). The percent was slightly higher-34 percent-for different-sex married couples.
288. Id.
289. See also WILLIAMS INST., SAME-SEX COUPLES IN CALIFORNIA,
290. supra note 94, at 9.
291. Brower, supra note 144, at 30. The income disparity was slightly higher-$42,497-for different-sex married couples.
292. Id.
293. See, e.g., Storrow, supra note 44, at 640 ("The [equitable parentage] concept focuses on the actions taken by the functional parent after the child is born. By contrast, the doctrine of intentional parenthood allows married couples to be declared parents at the moment of their child's birth though absent any evidence that they have 'functioned' as parents through genetic or gestational contributions to the child.").
294. Laura WW v. Peter WW, 856 N.Y.S.2d 258, 260 (App. Div. 2008).
295. Id.
296. Id. at 264
297. ("This evidence fully supports Supreme Court's conclusion that the husband consented to his wife's decision to create the child and that he is, therefore, the child's legal father.").
298. See. e.g., K.S. v. G.S., 440 A.2d 64, 66, 68 (N.J. Super. Ct. Ch. Div. 1981)
299. (holding that the husband was the legal parent of a child born to his wife through alternative insemination, even though the parties separated two months after conception and even though the husband had never seen the child and had not contributed to the child's support in any way);
300. Jackson v. Jackson, 739 N.E.2d 1203, 1209, 1214 (Ohio Ct. App. 2000) (holding that the husband was the legal father of twin children born to his wife through alternative insemination even though the parties separated approximately three months before the children were born);
301. In re Baby Doe, 353 S.E.2d 877, 878 (S.C. 1987) (holding that the husband was a legal father of and obligated to support the child born to his wife through alternative insemination even though the parties separated shortly after conception).
302. See supra text accompanying notes 23-28. In the few cases in which courts held that unmarried same-sex partners were responsible for supporting children born to their former partners through alternative insemination, there was extensive evidence of an actual parent-child relationship.
303. See, e.g., Elisa B. v. Superior Court, 117 P.3d 660, 662-63 (Cal. 2005) (ordering child support after almost two years of coparenting);
304. Chambers v. Chambers, No. CN99-09493, 00-09295, 2005 Del. Fam. Ct. LEXIS 1, at * 18, *24 (Fam. Ct. Jan. 12, 2005) (ordering a former same-sex partner to pay child support in a case in which the parties had coparented the child for almost two years );
305. L.S.K. v. H.A.N., 813 A.2d 872, 874-75 (Pa. Super. Ct. 2002) (ordering a former same-sex partner to pay child support in a case in which the parties ended their relationship when their five children were between the ages of four and seven).
306. As noted above, one could urge a court to disregard this requirement and to instead place exclusive weight on facts demonstrating prebirth intent to coparent the child. To date, however, no court has held that a person was an equitable parent with respect to a child with whom the person had no actual parent-child relationship.
307. See supra note 132 and accompanying text.
308. This requirement is an element of the de facto parent test of the ALI Principles. See ALI PRINCIPLES, supra note 140, § 2.03(1)(c), at 118 (providing that to be a de facto parent, a person must have, among other things, "regularly performed a majority of the caretaking functions for the child, or . . . a share of caretaking functions at least as great as that of the parent with whom the child primarily lived").
309. A decade ago, Julie Shapiro correctly predicted that this requirement could prove to be a problem for same-sex parent families. Julie Shapiro, Essay, De Facto Parents and the Unfulfilled Promise of the New ALI Principles, 35 WILLAMETTE L. REV. 769, 779 (1999) ("This requirement will systematically and dramatically disadvantage many nonlegal parents.").
310. See also id. at 781 ("[I]n families where the homemaker is the legal parent, the breadwinner will be left without legal recognition by virtue of the majority share requirement.").
311. A.H. v. M.P., 857 N.E.2d 1061, 1065 (Mass. 2006).
312. Id.
313. Id.
314. Id.
315. Id. at 1067.
316. Id. at 1067-68.
317. Id. at 1071-72.
318. Specifically, the trial judge found that while the nonbiological parent's "financial contributions benefited the child," the child's "primary bond" was to the biological parent, and that the relationship between the nonbiological parent and the child, "however salutary to the child, did not rise[] to that of a parental relationship."
319. Id. at 1072 (alteration in original) (internal quotation marks omitted). The A.H. court specifically declined to accept the nonbiological parent's argument that a nonmarital partner who consents to be a parent of a child born through alternative insemination should be held to be a legal parent of the resulting child.
320. Id. at 1074
321. ("[E]vidence of an agreement [to have a child] is not and cannot be dispositive on the issue whether the plaintiff is the child's legal parent.").
322. B.F. v. T.D., 194 S.W.3d 310, 311 (Ky. 2006) (affirming the trial court's ruling that the nonadoptive parent was not a de facto parent despite evidence indicating that she had been the primary financial provider for the child because she had not been the child's primary caregiver).
323. See also Susan Freiich Appleton, Parents by the Numbers, 37 HOFSTRA L. REV. 11, 28 (2008)
324. (discussing the A.H. v. M.P. and B.F. v. TD. cases and noting that in these cases the courts limited what constituted cognizable caretaking functions for purposes of conferring de facto parent status).
325. Gaia Bernstein & Zvi Triger, Over-Parenting, U.C. DAVIS L. REV. (forthcoming 2011) (manuscript at 26), available at http://ssrn.com/abstract=l 588246 ("[T]he general principle is that the more time a parent spends with a child the less he or she will be required to pay in child support.").
326. See also id. (manuscript at 26 n.114) (listing citations to statutes and cases supporting the proposition that the more time a parent spends with a child, the less that parent will have to pay in child support).
327. Mary Ann Mason & David W. Simon, The Ambiguous Stepparent: Federal Legislation in Search of a Model, 29 FAM. L.Q. 445, 457 (1995).
328. SOCIAL SECURITY LAW AND PRACTICE § 1:36 (Colleen R. Courtade & Michael Flaherty eds., perm, ed., rev. vol. 2000) ("The dependent children of a deceased, retired, or disabled worker are entitled to receive benefits.").
329. Soc. SEC. ADMIN., SURVIVORS BENEFITS 4 (2009), available at http://www.ssa.gov/pubs/ 10084.pdf.
330. Soc. SEC. ADMIN., DISABILITY BENEFITS 13 (2009), available at http://www.ssa.gov/pubs/ 10029.pdf.
331. Soc. SEC. ADMIN., UNDERSTANDING THE BENEFITS 13 (2010), available at http://www.socialsecurity.gov/pubs/10024.pdf.
332. Social Security Online Benefit Calculators, http://www.ssa.gov/OACT/ quickcalc (last visited Aug. 22, 2010).
333. Soc. SEC. ADMIN., BENEFITS FOR CHILDREN (2004), available at http://www.socialsecurity. gov/pubs/10085.pdf.
334. 42 U.S.C. § 416(e) (2006) (defining "child" to mean, among other things, "the child or legally adopted child of an individual").
335. See also SOCIAL SECURITY LAW AND PRACTICE § 16:10 (Michael Flaherty & Wendy S. Sigillo eds., perm, ed., rev. vol. 2004)
336. ("In order to be entitled to child's insurance benefits, an individual must be the insured person's child. Depending upon the circumstances, the term 'child' can include (1) the natural child or legally adopted child of an individual, (2) a stepchild, and (3) a grandchild or stepgrandchild." (footnote omitted)).
337. See, e.g., 20 C.F.R. § 404.355(a) (2009) (describing numerous ways in which a child can be recognized as a natural child of the insured and be eligible for benefits).
338. See, e.g., UNIF. PROBATE CODE § 2-114(a) (9th ed. 1990) (providing that "[t]he parent and child relationship may be established under" the applicable state parentage law);
339. Susan N. Gary, The Parent-Child Relationship Under Intestacy Statutes, 32 U. MEM. L. REV. 643, 654 (2002)
340. ("Intestacy statutes typically define the parent-child relationship by reference to the state's parentage statute."). There is a revised version of the Uniform Probate Code that has its own independent provisions governing the intestacy rights of children born through ART. These provisions are similar, although not identical, to the provisions of the 2002 UPA. Susan N. Gary, We Are Family: The Definition of Parent and Child for Succession Purposes, 34 ACTEC J. 171, 177 (2008).
341. This doctrine is also sometimes referred to as "virtual adoption" or "adoption by estoppel. Jan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why (The Impact of Adoptions, Adult Adoptions, and Equitable Adoptions on Intestate Succession and Class Gifts), 37 VAND. L. REV. 711, 767 (1984).
342. R. Brent Drake, Note, Status or Contract? A Comparative Analysis of Inheritance Rights Under Equitable Adoption and Domestic Partnership Doctrines, 39 GA. L. REV. 675, 681 (2005) (noting that, as of 1997, "twenty-seven jurisdictions have clearly recognized the doctrine").
343. Gardner v. Hancock, 924 S.W.2d 857, 859 (Mo. Ct. App. 1996).
344. It is important to note that while the doctrine of equitable adoption may entitle the child to a number of important financial benefits-including, possibly, the right to intestate succession and the right to children's Social Security benefits-it does not "create the legal relationship of parent and child, with all of the legal consequences of such a relationship."
345. Lankford v. Wright, 489 S.E.2d 604, 606 (N.C. 1997). Thus, even a child who has been "equitably adopted" may be denied other crucial protections, such as worker's compensation or the right to sue for the wrongful death of the functional parent.
346. 20 C.F.R. § 404.359 (providing that if the relevant state permits an equitably adopted child to inherit intestate, the child "may be eligible for benefits as an equitably adopted child if the insured had agreed to adopt [the child] as his or her child but the adoption did not occur").
347. Kristine S. Knaplund, Grandparents Raising Grandchildren and the Implications for Inheritance. 48 ARIZ. L. REV. 1, 6 (2006).
348. See also Lankford, 489 S.E.2d at 606 ("Thirty-eight jurisdictions have considered equitable adoption; at least twenty-seven have recognized and applied the doctrine.");
349. RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 2.5 cmt. k (Tentative Draft No. 2, 1998) ("Courts in over half the states have recognized such a doctrine . . . . ").
350. RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 2.5 cmt. k (noting that courts in at least eight states had rejected application of the equitable adoption doctrine). See also Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 WAKE FOREST L. REV. 223, 261 (2008) ("[T]he doctrine has been explicitly rejected by almost a third of the courts who have even considered it.").
351. See, e.g., Higdon, supra note 178, at 264 ("Furthermore, the courts have also held that proof of a family relationship alone is insufficient to prove an equitable adoption . . . .");
352. Knaplund, supra note 177, at 8 ("Thus, equitable adoption is frequently denied due to lack of proof of a contract to adopt, even though the child took the parents' last name, called the parents 'mom' and 'dad,' and undertook many of the responsibilities of the traditional parent-child relationship.").
353. The one exception is West Virginia. See Knaplund, supra note 177, at 6.
354. See also Wheeling Dollar Savs. & Trust, Co. v. Singer, 250 S.E.2d 369, 374 (W. Va. 1979) (holding that equitable adoption can be established even "without proof of an adoption contract" (emphasis added)).
355. See Higdon, supra note 178, at 225;
356. Knaplund, supra note 177, at 6.
357. See also, e.g., Coon v. Am. Compressed Steel, Inc., 207 S.W.3d 629, 634 (Mo. Ct. App. 2006) (holding, in a wrongful death action, that "[t]o prove an equitable adoption, the plaintiff must show that a promise to adopt was made, but the adoption had not occurred prior to the promisor's death").
358. Higdon, supra note 178, at 261.
359. Rein, supra note 173, at 767.
360. Chambers v. Chambers, 398 S.E.2d 200 (Ga. 1990).
361. Id. at 201.
362. Id.
363. Id.
364. Id.
365. See also In re Estate of Fox, 328 N.E.2d 224, 225 (Ind. Ct. App. 1975) (holding that, despite the "ample proof that the "Foxes treated and reared Louise as they would have their own daughter, and that Louise treated them as a daughter should treat her parents," there was no evidence of "an intent of the Foxes to adopt Louise").
366. For example, in Shaffer ex rel. Shaffer v. Apfel, No. 99-1732, 2000 U.S. App. LEXIS 21046, at *2 (6th Cir. Aug. 11, 2000),
367. Social Security benefits were sought on behalf of a twelve-year-old child after the disability of her functional parent, her biological grandfather. The child had lived with Carolyn and George Shaffer, her grandparents, most of her life but continued to have some contact with her birth mother.
368. Id.
369. The court denied benefits, finding no equitable adoption. Id. at *5.
370. The court explained that "[t]here was no indication that [the functional parent] discussed adoption or attempted adoption during the twelve years that he cared for and supported [the child]."
371. Id.
372. See also Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 952 (8th Cir. 2004)
373. (denying a child Social Security benefits where, despite the existence of a loving parent-child relationship, "[n]o formal adoption proceedings were ever initiated for [the child], and no steps were taken to terminate the parental rights of [the child's] birth mother").
374. See, e.g., D'Accardi v. Chater, 96 F.3d 97, 98 (4th Cir. 1996) (awarding benefits where the deceased husband initiated but did not complete adoption proceedings prior to his death).
375. See also Press Release, ACLU Urges Social Security Administration to Grant Survivor Benefits to Son of Lesbian (Oct. 15, 2003), http://www.aclu.org/ lgbt/relationships/12362prs20031015.html [hereinafter "ACLU Press Release"].
376. In re Caracappa decision, supra note 191 ;
377. ACLU Press Release, supra note 191.
378. In re Caracappa decision, supra note 191;
379. ACLU Press Release, supra note 191.
380. In re Caracappa decision, supra note 191 ;
381. ACLU Press Release, supra note 191.
382. In re Caracappa decision, supra note 191.
383. See, e.g., D'Accardi v. Chater, 96 F.3d 97, 100 (4th Cir. 1996) (applying New Jersey law and noting that "New Jersey recognizes the doctrine of equitable adoption as a theory of inheritance under intestacy").
384. Under New Jersey law, "Proof of the existence of an agreement to adopt and accompanying consideration is sufficient to support a finding of equitable adoption."
385. Id.
386. In re Caracappa decision, supra note 191.
387. See supra note 67 and accompanying text.
388. See, e.g., Soc. Sec. Admin., Program Operations Manual System § GN 00306.525 (2001),
389. 2001 WL 1926947 (providing that under Michigan law a "child is considered the child of the husband" if the child was "conceived following artificial insemination of a married woman with the consent of her husband").
390. See, e.g., id. (stating that the only requirement is the husband's consent and not proof of a relationship or agreement to adopt).
391. Soc. Sec. Admin., Program Operations Manual Systems § PR 01105.006 (2004), 2004 WL 700709.
392. Id.
393. ("A wage earner who consents to have a child conceived through artificial insemination of his wife will be considered the father of the child thus conceived unless clear and convincing evidence shows that the initial consent had been withdrawn prior to conception. Since the current record does not contain clear and convincing evidence of withdrawn consent, the wage earner would be treated as the legal father under California law.").
394. See also Soc. Sec. Admin., Program Operations Manual System § PR 01115.047 (2002),
395. 2002 WL 1879413 (holding that the resulting child was entitled to Social Security benefits through the husband even though the couple were no longer married at the time of the birth of the child, and despite the fact that the child "never lived with [the husband]").
396. See, e.g., JACOB A. STEIN, STEIN ON PERSONAL INJURY DAMAGES § 3:48 (3d ed. 2008) ("The parent of a legally adopted child is entitled to recover for the wrongful death of a child, but not one who merely stands in the position of a parent of a child who has been 'equitably adopted.'"). A small number of courts have held that the equitable doctrines can be applied in the context of wrongful death.
397. See, e.g., Coon v. Am. Compressed Steel, Inc., 207 S.W.3d 629, 636 (Mo. Ct. App. 2006) (finding that an equitably adopted child could prosecute a wrongful death claim on behalf of the deceased adoptive parent);
398. Holt v. Burlington N. R.R., 685 S.W.2d 851, 859 (Mo. Ct. App. 1984) (holding that an equitably adopted child was entitled to sue for the wrongful death of his adoptive parent). Most courts, however, have held to the contrary.
399. See, e.g., Herrera v. Glau, 772 P.2d 682, 684(Colo. App. 1989) ("[A]n equitably adopted child, while an heir for purposes of intestate succession, is not an heir for wrongful death Act purposes . . . .");
400. Jolley v. Seamco Laboratories, Inc., 828 So. 2d 1050, 1051 (Fla. Dist. Ct. App. 2002) ("An equitably adopted child does not have all of the legal rights of a legally adopted child and this court will not create such rights within the context of the Florida Wrongful Death Act.").
401. See, e.g., Talcott J. Franklin, Note, Calculating Damages for Loss of Parental Nurture Through Multiple Regression Analysis, 52 WASH. & LEE L. REV. 271, 271-72 (1995).
402. For example, beneficiaries of lump-sum benefits only include "natural" and adopted children of the federal employee. 5 U.S.C. § 8424(d) (2006).
403. See, e.g., BENNETT & GATES, supra note 67, at 9;
404. Univ. of Wash., Dependent Insurance Coverage: Adding a Dependent/Child, http://www.washington.edu/admin/hr/roles/ee/lifeevents/insure/add-child.html (last visited Sept. 6, 2010) (providing that dependent children can be added and defining "dependent children" to include children through the age of 19 "[w]ho are naturally born, legally adopted, or a stepchild; or, [f]or whom you have legal responsibility for supporting in anticipation of adoption; or, [w]hom you support under a court order or divorce decree").
405. See JOHN E. SANCHEZ & ROBERT D. KLAUSNER, STATE & LOCAL GOVERNMENT EMPLOYMENT LIABILITY § 10:12 (2007) ("The class of individuals entitled to [workers' compensation] death benefits is commonly spelled out in state law with surviving spouses and dependent children presumptively deemed dependents.").
406. See supra text accompanying notes 142-45.
407. In re Parentage of L.B., 122 P.3d 161, 177 (Wash. 2005) ("We thus hold that henceforth in Washington, a defacto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise.").
408. ALI PRINCIPLES, supra note 140, § 2.0 cmt. b, at 121 ("A parent by estoppel is afforded all of the privileges of a legal parent under this Chapter . . . .").
409. Id. § 2.03(1)(b)(iii)
410. (providing that one way a person can establish she is a parent by estoppel is by demonstrating that she "lived with the child since the child's birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the child's legal parent (or, if there are two legal parents, both parents) to raise a child together each with full parental rights and responsibilities, when the court finds that recognition of the individual as a parent is in the child's best interests").
411. Id. (providing that the person must "have lived with the child").
412. The ALI Principles address only the allocation of parental rights and the obligation to provide support; they do not purport to establish rules governing the child's entitlement to government or private benefits.
413. Baker, supra note 141, at 124.
414. Sally F. Goldfarb, Disasters, Families, and the Law, 28 WOMEN'S RTS. L. REP. 35, 42 (2007) ("The functional approach also interjects a great deal of discretion and unpredictability into the process of identifying families.");
415. Martha L. Minow, Redefining Families: Who's in and Who's Out?, 62 U. COLO. L. REV. 269, 276 (1991) ("[A] functional approach can be messy. That's law talk for unpredictable.");
416. Nancy D. Polikoff, A Mother Should Not Have to Adopt Her Own Child: Parentage Laws for Lesbian Couples in the Twenty-First Century, 5 STAN. J. CIV. RTS. & Civ. LIBERTIES 201, 226 (2009) ("All of these states seem to require case-by-case determinations. None provides the clear and simple establishment of parenthood-without court intervention-that constitutes the norm for heterosexual couples.").
417. Other commentators have proffered such a solution. See, e.g., Benjamin G. Ledsham, Note, Means to Legitimate Ends: Same-Sex Marriage Through the Lens of Illegitimacy-Based Discrimination, 28 CARDOZO L. REV. 2372, 2375 (2007) ("Although certain legal devices such as wills, medical proxies, and second-parent adoptions can help fill some of the vacuum left by the unavailability of marriage to same-sex couples and their children, these remedies cannot provide the security that only marriage can deliver." (footnote omitted)).
418. For further discussion of issues related to interstate recognition of parentage, see, for example, Joslin, supra note 3.
419. See, e.g., Michele Granda & Jennifer L. Levi, Will Marriage Be an Option?, in REPRESENTING NONTRADITIONAL FAMILIES § 8.3.6(b) (Katherine Triantafillou ed., 2006) ("In Massachusetts, a child born . . . to a married woman with the use of donor sperm . . . [is] presumed to be the child of the 'husband,' and therefore of the female spouse in the case of a lesbian couple.");
420. supra note 22.
421. See, e.g., HUMAN RIGHTS CAMPAIGN, supra note 143.
422. See Nancy D. Polikoff, For the Sake of All Children: Opponents and Supporters of Same-Sex Marriage Both Miss the Mark, 8 N.Y. CITY L. REV. 573, 588-89 (2005) ("Like children of heterosexual parents, children of gay and lesbian couples should not need their parents' marriage to access [important protections].").
423. See supra note 67 and accompanying text.
424. For further discussion of the inadequacy of second-parent adoptions, see Julie Shapiro, A Lesbian-Centered Critique of Second-Parent Adoptions, 14 BERKELEY WOMEN'S L.J. 17, 30 (1999) ("I have two major concerns about second-parent adoptions. First, I believe they divide our community. Second, I believe that the uncritical acceptance of second-parent adoptions contributes to our domestication.").
425. See, e.g., Suzanne B. Goldberg, Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. v. Virginia M., 17 COLUM. J. GENDER & L. 307, 340 (2008) (noting that because of the expense of adoptions "[s]ome couples who plan to have more than one child simply find it more efficient and economical to wait to do all of the adoptions together").
426. See, e.g., Harvey L. Fiser & Paula K. Garrett, It Takes Three, Baby: The Lack of Standard, Legal Definitions of "Best Interest of the Child" and the Right to Contract for Lesbian Potential Parents, 15 CARDOZO J.L. & GENDER 1, 20 (2008) (identifying ways that contracts can "mitigat[e] judicial bias");
427. Katherine M. Swift, Parenting Agreements, the Potential Power of Contract, and the Limits of Family Law, 34 FLA. ST. U. L. REV. 913, 913 (2007) (arguing "that properly drafted parenting agreements should be enforced by family courts").
428. For further consideration of whether nonparental caregivers should be extended some parental rights or obligations, see, for example, Laura T. Kessler, Community Parenting, 24 WASH. U. J.L. & POL'Y 47, 49 (2007) (seeking to "understand why . . . the 'more-than-two' parent family is so widely agreed to be undesirable, even while so many people practice alternatives to the two-parent nuclear family norm");
429. and Melissa Murray, the Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 VA. L. REV. 385, 388 (2008) ("[B]ecause family law understands caregiving as parenting, it precludes recognition of the way in which parents and nonparents work together to discharge caregiving responsibilities.").
430. Thus, at least in this particular context, I part company with those who have advocated for the unbundling of parental rights and responsibilities. See, e.g., Nancy E. Dowd, Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909, 913 (2006) ("I would separate economic responsibility from the privileges and rights of social fatherhood.");
431. Kessler, supra note 225, at 74 ("[W]e may need to further disaggregate the bundle of parental rights. Currently, it is all or nothing.").
432. But see Emily Buss, Essay, "Parental" Rights, 88 VA. L. REV. 635, 636 (2002) ("[A] state [should have] broad authority to identify nontraditional caregivers as parents, and, if it does so, it must afford their child-rearing decisions the same strong protection afforded more traditional parental figures.");
433. Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents' Rights, 14 CARDOZO L. REV. 1747, 1818-19 (1993) ("A child-centered perspective would distinguish the two. It would view obligation as a corollary of procreation-responsibility assigned to the creator for the consequence of creation. It would view authority as a corollary of stewardship-and earned during gestation and childhood and exercised in service to the child's emerging capacity.").
434. June Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV. 1295, 1334 (2005) (footnote omitted).
435. See also Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879, 944 (1984) ("Because exclusivity in parental rights strengthens the nuclear family to the benefit of children, traditional doctrine should remain society's first choice.").
436. As noted above, this model is not limited to alternative insemination. Rather, it applies to all nonsurrogacy forms of assisted reproduction.
437. To be clear, the relevant point of inquiry is whether the parties consented at the time of conception.
438. The American Bar Association Family Law Section recently included a gender-neutral, marital status-neutral assisted reproduction provision in its Model Act Governing Assisted Reproductive Technology ("ABA Model Act"). AMERICAN BAR ASSOCIATION MODEL ACT GOVERNING ASSISTED REPRODUCTIVE TECHNOLOGY § 603 (2008), available at http://www.abanet.org/family/ committees/artmodelact.pdf ("An individual who provides gametes for, or consents to, assisted reproduction by a woman as provided in Section 604 with the intent to be a parent of her child is a parent of the resulting child.").
439. See, e.g., Karen Syma Czapanskiy, To Protect and Defend: Assigning Parental Rights When Parents Are Living in Poverty, 14 WM. & MARY BILL RTS. J. 943, 946 (2006) ("If the birth mother designates a parental partner early in the child's life and changes her mind within the first month of the child's life, she may revoke the designation. After that time, she may not revoke her designation.");
440. Spitko, supra note 112, at 138 ("As argued above, in only the most extraordinary circumstances could a biological father perform sufficient parental labor by the time of the birth of his child to qualify him as a constitutional parent.").
441. See also Nancy E. Dowd, From Genes, Marriage and Money to Nurture: Redefining Fatherhood, 10 CARDOZO WOMEN'S L.J. 132, 134 (2003) ("Specifically, I argue that fatherhood should be defined by doing (action) instead of being (status), with the critical component being acts of nurturing."). It is important to note that, generally speaking, these articles are not focused on children born through ART. Therefore, the comments cited above may not reflect the authors' opinions about the rules that should apply in that context.
442. Schiff, supra note 9, at 550.
443. Shultz, supra note 9, at 324.
444. While Janet Dolgin is certainly correct that "intentions change," Janet L. Dolgin, Response to Professor Woodhouse, 28 CONN. L. REV. 107, 110 (1995),
445. it is my position that legal consequences should flow from intentional procreative activity, even if one later regrets this decision. Dolgin is also correct that there will be cases in which it is difficult to determine the parties' intentions at the time of conception.
446. See id. at 111 ("Moreover, reliance on intent is unworkable in practice because no clear measure exists by which conflicting intentions can be delineated, identified and weighed."). I believe, however, that courts are capable of sorting out this type of factual dispute.
447. See, e.g., Hill, supra note 9, at 358 (arguing that in the context of ART, "the parental rights of the intended parents should be legally recognized from the time of conception");
448. Polikoff, supra note 215, at 234 (arguing in favor of "enactment of a gender-neutral and marital status-neutral statute assigning parentage based on consent to the insemination with the intent to parent");
449. Shultz, supra note 9, at 323 (arguing that in the context of reproductive technologies, "bargained-for intentions [should be] determinative of legal parenthood");
450. Storrow, supra note 44, at 678-79 ("I have argued that parental intent is in essence an aspect of parental function supporting recognition of parentage wholly apart from genetic or gestational contributions or marital presumptions.").
451. This requirement is consistent with the 2002 UPA. The 2002 UPA implicitly requires the consent to the procreative endeavor to be mutual. For example, the Act clarifies that the consent of both the man and the woman must be in a written record signed by both parties.
452. 2002 UPA, supra note 46, § 704(a), 9B U.L.A. 70 (Supp. 2010).
453. At this point, I part company with Richard Storrow. Storrow takes the position that a person can become a legal parent through intent even over the objection of the intended/gestational parent.
454. See Storrow, supra note 44, at 677 ("[I]ntentional parenthood, unlike functional parenthood, is a type of parenthood that does not depend on the permission of a legally recognized parent.").
455. This position is also consistent with the 2002 UPA and the ABA Model Act. For example, in section 603 of the ABA Model Act, there is no limiting language describing the second intended parent. AMERICAN BAR ASSOCIATION MODEL ACT GOVERNING ASSISTED REPRODUCTIVE TECHNOLOGY § 603 ("An individual who provides gametes for, or consents to, assisted reproduction by a woman as provided in Section 604 with the intent to be a parent of her child is a parent of the resulting child.").
456. The language of section 703 of the 2002 UPA is similar, although the terms of the UPA provision are gendered. 2002 UPA, supra note 46, § 703, 9B U.L.A. 70 (Supp. 2010) ("A man who provides sperm for, or consents to, assisted reproduction by a woman as provided in Section 704 with the intent to be the parent of her child, is a parent of the resulting child.").
457. A requirement of intimate conduct would itself require a court to engage in a complicated factual inquiry that could result in seemingly odd results. For example, under a rule that applied only to intimate partners, the rule would apply to couples who engage in intimate sexual conduct, but would not apply to other people who consider themselves to be a couple but who, for whatever reason, do not engage in intimate sexual conduct.
458. See JOSLIN & MINTER, supra note 5, § 3:9, at 179 ("Many, but not all, statutes addressing the legal parentage of children born through alternative insemination require that the man's consent be in writing.").
459. Under the 2002 UPA, a man is considered the legal parent of a child born through assisted reproduction in the absence of written consent "if the woman and the man, during the first two years of the child's life resided together in the same household with the child and openly held out the child as their own."
460. 2002 UPA, supra note 46, § 704(b), 9B U.L.A. 70 (Supp. 2010).
461. Lane v. Lane, 912 P.2d 290, 295 (N.M. Ct. App. 1996) (noting that written consent "serves an evidentiary function" and "a cautionary purpose").
462. See, e.g., Brown v. Brown, 125 S.W.3d 840, 841 (Ark. Ct. App. 2003) (affirming the trial court's finding that the father was "barred by the doctrine of estoppel from denying the children are his" even though he did not consent in writing to the insemination (internal quotation marks omitted));
463. Laura G. v. Peter G., 830 N.Y.S.2d 496, 504 (Sup. Ct. 2007) (finding on the facts that the former husband was the father of a child conceived by alternative insemination in the absence of written consent).
464. Lane, 912 P.2d at 292.
465. Id. at 294.
466. Id. at 292.
467. See In re Parentage of M.J.,787 N.E.2d 144, 152 (111. 2003) (stating that "Raymond's alleged conduct evinces a powerful case of actual consent" to the insemination of his nonmarital female partner);
468. In re A.B., 818 N.E.2d 126, 132 (Ind. Ct. App. 2004) ("Assuming the facts alleged in the complaint to be true, as we must at this stage, it is apparent that A.B. would not have been born if Dawn and Stephanie had not agreed to be co-parents to the resulting child."), vacated on procedural grounds sub nom. King v. S.B., 837 N.E.2d 965 (Ind. 2005).
469. UNIF. PROBATE CODE § 2-120(f)(2) (2008).
470. Specifically, the 2008 amendments to the UPC provide that where there was no written consent, a person can be held to be a parent of a child born through assisted reproduction where the person "functioned as a parent of the child no later than two years after the child's birth" or "intended to function as a parent of the child no later than two years after the child's birth but was prevented from carrying out that intent by death, incapacity, or other circumstances."
471. Id.
472. The UPC test is slightly too limited, however, because it would exclude a person who consented in fact to the insemination but who was not "prevented" from carrying out his or her intent. In another respect, however, my proposed framework is more limited than the relevant UPC provisions: the inquiry with regard to consent under my proposed framework is whether the person consented with the intent to parent at the time of the conception.
473. The scheme could list a number of nonexhaustive factors that a court could consider when determining whether the parties were living an interdependent life. The ALI Principles include a list of factors that could serve as a model.
474. See ALI PRINCIPLES, supra note 140, § 6.03(7), at 1021-22 (listing, in the chapter addressing domestic partners, factors to be considered when determining whether a couple "share[] a life together").
475. As noted above, the inquiry here should be focused on whether the person intended to parent the resulting child. Therefore, if the person indicated that he or she would parent the child, but that he or she did not want to be financially responsible to support the child, that intent would be sufficient to establish parentage. It does not matter what legal rights and obligations the person thought he or she was acquiring. The question is simply whether the person intended to function as a parent to the child.