Intentional Parenthood’s Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy

21 Pages Posted: 6 Jul 2012

See all articles by Melanie B. Jacobs

Melanie B. Jacobs

Michigan State University College of Law

Date Written: July 5, 2012

Abstract

While biology, birth, and the marital presumption are still the traditional bases on which legal parentage is established, intent is playing an ever increasing role in parentage determinations. Intent has been used as a proxy for biology to establish legal parentage. Conversely, intent has also been critical in recognizing the right of a party not to procreate or have the responsibilities that come with it. The increased recognition of intent as part of the parentage puzzle creates a greater contrast with the use of biology alone as a means to establish paternity in paternity cases, especially those cases initiated by a state’s IV-D agency.

The relationship between intent, conception, and procreation has created inconsistency between how legal parentage is determined in the ART context compared with the traditional paternity establishment context. In the paternity establishment context, if an unmarried man and woman have sex and the woman becomes pregnant, the man will likely be adjudicated the child’s legal father regardless if he had any intent to conceive or procreate a child. I challenge why a man who has no intent or desire to be a father should be adjudicated a legal father — with subsequent legal responsibilities. I suggest that although equal protection claims have been historically unsuccessful for men – because they have used women as the basis of comparison – a more accurate and perhaps more successful equal protection argument would frame the issue as men who unintentionally impregnate a women compared with men who have “conceived” a child through ART but no longer wish to procreate.

Keywords: intent, conception, procreation, children, child rearing, presumption, marital

Suggested Citation

Jacobs, Melanie B., Intentional Parenthood’s Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy (July 5, 2012). American University Journal of Gender, Social Policy & the Law, Forthcoming, MSU Legal Studies Research Paper 10-16, Available at SSRN: https://ssrn.com/abstract=2101339

Melanie B. Jacobs (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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