Family Law, Health Care / Medicine, Kids

New Year’s Resolution For The Courts: Step Up Your Game For Parents Of ART-Conceived Kids

Several recent court rulings have seen judges deny litigants their valid parental rights over children conceived through assisted reproductive technology.

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Baby BusinessmanAs 2017 approaches, we are all brainstorming about how we can do better in the new year. Even judges are thinking deep thoughts about what they can do better. Exercise. Check. Eat better. Sure. Protect the legal rights of parents of assisted reproductive technology-conceived children? … Needs improvement. Unfortunately, several recent court rulings have seen judges deny litigants their valid parental rights over children conceived through assisted reproductive technology (ART).

You Know What They Say About When You Assume. Most states have legal presumptions — which may or may not be rebuttable — as to whom is considered the legal parent of a child. One of the most basic presumptions is that the woman giving birth to a child is that child’s legal parent. (Or a transgender man giving birth to a child, or Arnold Schwarzenegger in Junior, who later had his own, um, conception issues). Of course, when the woman giving birth is a surrogate, the presumption works against the genetically-related intended parents. And so a court order generally must be obtained to override the presumption, and accord appropriate legal rights to the person or people who contracted with the surrogate.

Another common legal presumption has mixed consequences. Generally, the spouse of the person giving birth is also considered the second biological parent to the child. Of course, since Obergefell, same-sex couples have begun marrying in every state, and now the spouse of the woman giving birth can herself also be a woman. This should mean that the wife of the woman giving birth has automatic rights under a marital presumption. Consequently, the wife should be the second parent on the birth certificate, right? One would hope. But in terms of legal protections, nearly every attorney will advise the spouse — often called the non-“biological” parent — to consider taking additional steps to protect the legal recognition of her parent-child relationship.

Court Orders > Birth Certificates. You’d be forgiven if you thought, until now, that a birth certificate is determinative of the parental lineage of a child. But courts agree that the contrary position is true. For instance, an Arizona court held this month, in Castillo v. Lazo, that “identifying parentage based on the marital presumption provides prima facie evidence, but not conclusive proof, of parentage.”

Birth certificates — and who is named as a parent on them — are determined by state statutes and a state’s administrative process. Other states, as well as other countries, do not have to recognize, offer full faith and credit, or respect parental rights for the persons named on a birth certificate. This generally doesn’t raise any concerns for children born of classic heterosexual married couples. But it has become a concern for individuals and couples who are more likely to face discrimination, such as same-sex couples and transgender parents.

The solution is often to obtain a special court order recognizing parental rights over the child. A court order, unlike a birth certificate, enjoys full faith and credit in all states, and stands a higher chance of respect in other countries.

Unfortunately, judges in New York and Colorado have recently denied requests for an order (either under the Uniform Parentage Act or similar adoption statutes). These judges have held that since the parent already enjoys parental rights under the state’s relevant legal presumptions, and maybe they were even recognized on the child’s birth certificate, the cases were not sufficiently “ripe” for a court to rule. For con law nerds, imagine this as a rigorous injury-in-fact question that bars the doors to the courthouse for many plaintiffs.

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But without a court document, the non-biological parent must live in fear of her injury becoming ripe suddenly and without warning. This could mean chilling her ability to travel to another place, domestic or foreign, hostile to same-sex couples’ rights. Only once a nightmare scenario happens does the petition become “ripe.”

Respectfully, I’ll suggest that some judges are failing to recognize the distinction between the mere presumptions that result from the issuance of a birth certificate, and the full faith and credit effect of a court order. They are also failing to recognize the precarious world these “non-traditional” parents live in. No one wants to wait until there’s a crisis before vindicating their parental rights.

So for 2017, my advice to everyone is to make good choices. Take the stairs. Skip dessert. And for judges, grant orders confirming parental rights. Don’t ask a parent to have her rights to her child challenged before holding that the case has become “ripe.”

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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