Baseline, Bright-Line, Best Interests: A Pragmatic Approach for California to Provide Certainty in Determining Parentage

Abstract

Miller argues that the presumptions regarding parentage established by California law have not kept pace with science. The reliability of paternity tests; the growing use of artificial insemination, in vitro fertilization and surrogacy; and the likelihood of additional breakthroughs regarding reproduction have made the California system of presumptions outmoded. This system does not protect the intact family, does not protect the child's relationship with a psychological parent and does not protect the best interests of the family. In this article, Miller explores California statutes and cases regarding parentage. He offers a detailed discussion of the law regarding paternity; maternity; and assisted conception including artificial insemination, ovum donation, in vitro fertilization, surrogacy and new reproductive technologies. Miller then proposes a new legal model that takes advantage of modern genetic testing but is not a slave to it. The proposed model has three parts. The first part makes the genetic parent the parent for all purposes unless another person has been designated as the child's parent by operation of law. The second part requires that, except for cases of artificial insemination, in all instances of assisted conception in which someone other than the genetic parent is the intended parent of the child, there be a judicially pre-validated contract. The third part requires that, in all instances of assisted conception where there is either no contract or an unenforceable contract due to lack of judicial pre-validation, the best interest of the child standard be used to determine parentage.

Keywords: california, parentage, paternity, maternity, assisted conception

JEL Classification: K39