The New York Times published an Op-Ed piece near the end of January that's been sitting in my to-do pile. The issue raised is whether a baby can have three (or more) biological parents. Non-traditional families are more prevalent today than ever before. Parenthood may occur in a Lesbian relationship with one partner being the "host" parent (the biological parent who conceives using sperm of a third party). Gay men have also used surrogacy or adoption to form family units with children. The other partner then is the supportive second parent. If a "second parent adoption" is legal, the second parent's parental rights can be protected. Otherwise, there have been serious risks when the parents' relationship sours.
A few recent high profile cases point out the legal pitfalls for the adults involved. More often than not, there is a destruction of the parent-child relationship for the non-biological parent. Imagine the social, emotional and psychological issues created when a child or children are separated from a parent when the biological parent decides that she's going to exclude the non-biological parent. In some courts, biology has controlled. But we are seeing some willingness by courts to protect the parent-child relationship with the second parent.
Recently, in The Law & Living Together, an article published in Winter 2010 ABA Section of Law publication Family Advocate, I set out practice pointers on drafting cohabitation agreements. One issue I addressed was whether partners could make contractual agreements regarding the custody and parenting time issues if their relationship failed. Normally, courts do not allow parents (same sex or otherwise) to contractually bind themselves in a prenuptial or cohabitation agreement to such weighty issues as custody and parenting time. Courts are required to make detailed findings of fact and conclusions of law before accepting parents' agreements about these issues. I opined that ensuring that the child or children were "designer babies" is not outside the realm of possibility and represents a viable solution to protect the parental rights of both partners.
In the NY Times piece, Adam Cohen discusses exactly that concept. He writes:
* Researchers at the Oregon National Primate Research Center were
looking for ways to eliminate diseases that can be inherited through maternal DNA. They developed, as the magazine Nature reported last summer, a kind of swap in which defective DNA from the egg is removed and replaced with genetic material from another female's egg. The researchers say the procedure is also likely to work on humans.
The result would be a baby with three biological parents - or "fractional parents," as Adam Kolber, a professor at the University of San Diego School of Law, calls them.
He mentioned the idea over lunch at The Times, and it provided plenty of grist for debate among law junkies: Could a baby one day have 100 parents?
Could anyone who contributes DNA claim visitation rights? How much DNA is enough? Can a child born outside the United States to foreigners who have DNA from an American citizen claim U.S. citizenship?
Several recent cases illustrate the complex legal issue and painful family issues:
A.G.R. v. D.R.H. & S.H. is a significant recent surrogacy case in New Jersey. A woman served as a surrogate for her brother and his male spouse, giving birth to twins conceived with the spouse's sperm and donor eggs. She signed a contract agreeing that her brother would adopt the children, but the trial court, saying it was following the Baby M decision, ruled that the spouse and the surrogate mother are the legal parents. The surrogate's brother was given no parental rights.
Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents - especially if the day comes when three or more people want to combine their DNA to create a baby.
Another sad case involves Janet Jenkins and Lisa Miller who planned and conceived a child who is now seven. They lived in Vermont, but when their relationship went south, Miller, the biological parent absconded with the child. Last May, the Vermont Court awarded custody to Miller who is now a fugitive from the law. charged with parental kidnapping. Glenn Sacks has written an excellent summary of this case with links to news reports, including television coverage, found here.
Cohen's Op-Ed piece is found here. A Legal Puzzle: Can a Baby Have Three Biological Parents?