Which Came First the Parent or the Child?

Abstract

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to legal parents at birth. This right derives from the Substantive Due Process privacy right to form intimate, familial relationships, as well as the right to intimate association and ensures that a child may develop the parent-child relationships necessary to preserve her liberty, protect her rights, and define her identity.

To guarantee children’s fundamental right to legal parents at birth, states must reform their current parentage statutes. This article argues that states must first replace all presumptions in parentage statutes with clear determinations of legal parentage at birth. Next, states must grant legal parentage of children conceived through sexual reproduction to the child’s genetic parents. For children conceived through assisted reproductive technology, states must grant legal parentage to the intended parents. By adopting statutes that assign children parents from these respective groups, states ensure that the persons who are most likely to act in the child’s best interest become the child’s legal parents. In so doing, the state fulfills its parens patriae obligation to guarantee every child’s fundamental right to legal parents at birth.

Keywords: Assisted reproductive technology, constitutional law, fundamental rights, substantive due process, right to intimate association, paternity, maternity, parentage, marital presumption, children’s rights