The Progression of Legal Acknowledgement of Families Created by Assisted Reproductive Technologies

By Prof. Dara E. Purvis*

Earlier this year in Florida, baby Emma was born to her delighted parents: Cher, Maria … and Massimiliano.  Two of them, Cher Filippazzo and Maria Italiano, are a same-sex couple who married in Connecticut and live in Miami.  The two women had tried to start a family using fertility clinics, but only successfully conceived after asking Maria’s hairdresser, an Italian immigrant named Massimiliano Gerina, to donate sperm to be used in a private artificial insemination.  At the time, the three verbally agreed that Gerina was acting only as a sperm donor and had no parental status or rights to any resulting child.

I. Parental Rights Issues Created by Multiparent Families

Sperm donors are generally not viewed as parents, but with one crucial detail: most sperm donations take place with the intervention of a doctor in a fertility clinic.  This provides several procedural safeguards, most importantly that fertility clinics require all donors and intended parents to sign legal documents specifying their roles (or, in the case of donors, relinquishment of any parental roles).  Filippazzo, Italiano, and Gerina had not memorialized their agreement in writing before their daughter, Emma, was conceived.

Seven months into Italiano’s pregnancy, the women attempted to remedy the problem and presented Gerina with a contract waiving any parental rights or claim of parental status.  Gerina refused to sign, retained a lawyer, and filed a paternity claim shortly after Emma’s birth in March 2011.  The case was scheduled to go to trial at the end of January, but the three were able to come to a private settlement immediately beforehand, which Miami-Dade Circuit Judge Antonio Marin approved.  According to the agreement, Emma’s primary parents are Italiano, the biological mother, and Filippazzo, who legally adopted Emma.  Gerina, however, is also listed on the birth certificate, and will have regular visitation with Emma.[1]

This resolution is a noteworthy and welcome step forward for nontraditional families.  Statutes and family courts have begun to grapple with multiparent families, but placing three names on a birth certificate formalizes what has otherwise been largely pragmatic and piecemeal.  The settlement also recognizes that individual parents may be privately creating families, through assisted reproductive technologies (ART) and adoption, in ways that the law should formally support.

When considering broad questions about how the law recognizes different family structures, birth certificates seem to be a minor footnote to the important work of regulation.  Birth certificates identify parents, but only create a presumption (albeit one that is rarely rebutted) of parentage.  Counterintuitively, however, birth certificates are usually the only formal identification of legal parents.  As such, they become immensely significant when the status of legal parent is contested or transferred.  Modifying a birth certificate, moreover, is often part of modifying legal parentage: in the traditional version of adoption, when a child is efficiently transferred from birth parents to adoptive parents with finality and anonymity, a crucial step is issuing an amended birth certificate erasing the names of the birth parents and naming the adoptive parents instead.[2]

II. Judicial Interpretation of Parentage

A. Legal Rights for Two Parents Only

American courts have occasionally recognized more than two adults as having some legal relationship to a child.  Generally, however, a sharp distinction has been drawn between legal parents and the third person, who is labeled a de facto or psychological parent and does not possess all the legal rights and responsibilities of parenthood.[3]  The vast majority of the time, courts faced with a group of potential parents have consciously chosen a maximum of two from the crowd.  As the California Supreme Court put it in 1993, faced with a married couple and their gestational surrogate all claiming status as parent, recognizing one father and two mothers would “diminish” the role of the natural and legal mother, even as the court acknowledged that “advances in reproductive technology render[ed] a different outcome biologically possible.”[4]

One year later, a New York court was faced with a dilemma similar to that created by Italiano, Filippazzo, and Gerina.  The sperm donor in that case, named Thomas, was the biological father of a twelve-year-old girl named Ry, and after her birth sought an order of filiation.[5]  At the time of the lawsuit, Ry lived with her biological mother Robin and Robin’s same-sex partner Sandra, along with Sandra’s biological son.  Sandra, however, had not legally adopted Ry, so the question was whether to recognize a potential second parent, not a potential third parent.  Furthermore, the court noted that “the question of the respective rights of a gay life partner vis-a-vis a biological parent presents a timely issue for consideration by the legislative and judicial branches of government,” clearly indicating that if Sandra had sought to legally adopt Ry, only one of the two potential parents—Sandra or Thomas—could succeed in being recognized.[6]

Since the 1990s, as the use of ART has increased, some courts and legislatures have edged away from a two-parent rule.  Departures from the norm, however, have served specific policy goals such as providing financial support or protecting extant emotional relationships with the child.  Louisiana, like most states, presumes that the husband of a woman who gives birth is the baby’s legal father.  Despite the existence of such a presumption, state law allows a second man to be identified as father—“dual paternity”—for the purposes of imposing a support obligation.[7]  One California court came to a more attenuated resolution along the same lines by finding that a biological grandson born out of wedlock could inherit from a family trust notwithstanding the fact that under California’s marital presumption, the grandson’s legal father was not a member of the inheriting family.[8]

B. Legal Acknowledgement of Three Parents

Some courts have crafted compromises by which more than two adults are recognized as parental figures, but have been less explicit about identifying more than two adults as actual parents.  In 2007, for example, a Pennsylvania court was faced with two women who had been in a long-term co-parenting relationship, but who had since ended their romantic relationship, as well as the biological father of two of their children, who had been involved in the lives of the children (with both mothers’ consent) since their birth.  The court awarded partial physical custody and support obligations to both the non-biological mother and the biological father, but left the children’s birth certificates undisturbed.  Furthermore, the court paid significant attention to the biological father’s existing relationship with the children—he was present at the birth of one of the children, provided regular financial support, and was eager to continue regular visitation.[9]  The court found that this gave him the same role as the non-biological mother: someone who stood in loco parentis.  Persons standing in loco parentis share, under Pennsylvania law, the same “rights and liabilities” as do legal parent and child, but the court noted that the status “does not elevate a third party to parity with a natural parent” for the purposes of determining custody.[10]

C. Legal Acknowledgement of Three Parents on a Birth Certificate

With these precedents in mind, the recent Florida case might not seem particularly novel.  One reading of the co-parenting scheme including Filippazzo, Italiano, and Gerina is that it is not a significant departure from the norm.  As Gerina acknowledged to media, “[t]he mothers are in charge.  I’m just going to spend time with [Emma].  They are the parents.”[11]  The birth certificate did not, in other words, create three legal parents with equal rights.

The birth certificate, however, has important conceptual consequences.  First, recognizing both biological and functional parents on a birth certificate diminishes the primacy of genetic relationships.  This is especially important as same-sex marriage complicates parentage rules: biological relationships indicate one male and one female parent, but the marital presumption would indicate two female parents.  Most states that legally recognize same-sex relationships, either through marriage or civil unions, apply marital presumption rules regardless of gender and would place a same-sex spouse’s name on the birth certificate.  But Iowa does not, and Iowa’s Department of Public Health has resisted arguments for doing so all the way to the state supreme court.[12]  As campaigns for marriage equality progress across the country, questions of presumptions of parentage will arise again and again—but adding lines on the birth certificate provide an easy answer.

More importantly, the judge’s approval of Emma’s birth certificate endorsed an unconventional but more realistic assessment of her day-to-day life.  Filippazzo explained, “[w]e’re trying to do the right thing for Emma[.]  We want Emma to have it all, and we believe by doing it this way, including him in a birthday or Thanksgiving, it’ll be a nice addition for her.”[13]  In spite of the disagreement and litigation, Gerina reports that he and Emma’s mothers put their acrimony in the past and are once again good friends working collaboratively for Emma’s benefit.[14]

A pragmatic endorsement of unorthodox family structures may be increasingly necessary in the future.  Recent figures indicate that four percent of births were conceived using ART, and that proportion will likely go up.[15]  Some scientists predict that children who have three biological parents are only a few years away.[16]  Strains on the law’s limit of two legal parents will only increase, and listing three names on a birth certificate is one more step towards conforming legality to reality.

 


* Visiting Assistant Professor, University of Illinois College of Law. Yale Law School, J.D. 2008; University of Cambridge, M.Phil. 2005; University of Southern California, B.A. 2003.   Thanks to Angelica Nizio and the rest of the editors of the the Journal of Law, Technology & Policy.

[1] Steve Rothaus, Miami-Dade Circuit Judge OK’s Plan for Gay Man, Lesbian Couple to Be on Daughter’s Birth Certificate, Miami Herald: Gay S. Fla., http://miamiherald.typepad.com/gaysouthflorida/2013/02/miami-dade-circuit-judge-oks-plan-for-gay-man-lesbian-couple-to-be-legal-parents-of-young-daughter.html (last visited Apr. 9, 2013).

[2] Carol Sanger, Separating From Children, 96 Colum. L. Rev. 375, 444–45 (1996).

[3] Canada, however, identified three legal parents in 2007, when an Ontario court approved of a joint petition by a child’s two mothers (the biological mother and her partner) and the biological father to recognize all three as legal parents.  A.A. v. B.B. (2007), 83 O.R. 3d 561, para. 37 (Can. Ont. C.A.).

[4] Johnson v. Calvert, 851 P.2d 776, 781, 781 n.8 (Cal. 1993).

[5] In re Thomas S. v. Robin Y., 618 N.Y.S.2d 356, 357 (App. Div. 1994).

[6] Id. at 361.

[7] La. Rev. Stat. Ann. § 46:236.1.2.D (2012); Melanie B. Jacobs, More Parents, More Money: Reflections on the Financial Implications of Multiple Parentage, 16 Cardozo J.L. & Gender 217, 218 (2010).

[8] Citizens Bus. Bank v. Carrano, 117 Cal. Rptr. 3d 119, 124–25 (Ct. App. 2010).

[9] Jacob v. Shultz-Jacob, 923 A.2d 473, 481 (Pa. Super. Ct. 2007).

[10] Id. at 477.

[11] Rothaus, supra note 1.

[12] Nova Safo, Gay Parents Battle “the Iowa Anomaly, CNN Radio (Mar. 4, 2013, 7:00 AM), http://cnnradio.cnn.com/2013/03/04/gay-parents-battle-the-iowa-anomaly/.

[13] Kevin Gray, Florida Judge Approves Birth Certificate Listing Three Parents, Yahoo! Can. News (Feb. 7, 2013), http://ca.news.yahoo.com/florida-judge-approves-birth-certificate-listing-three-parents-233555185.html.

[14] Rachel Katz, Miami Judge Allows 3 Names on Birth Certificate, ABC News (Feb. 8, 2013, 2:03 PM), http://abcnews.go.com/blogs/headlines/2013/02/miami-judge-allows-3-names-on-birth-certificate/.

[15] Dara E. Purvis, Intended Parents and the Problem of Perspective, 24 Yale J.L. & Feminism 210, 231 (2012).

[16] Nick Collins, Babies With Three Parents Possible Within Three Years, Telegraph (Jan. 19, 2012, 6:40 PM), http://www.telegraph.co.uk/science/science-news/9025121/Babies-with-three-parents-possible-within-three-years.html.