Regaining Childcare Liberties for Natural Parents

Abstract

Until recently, it was easy to identify at birth those beyond gestating mothers who had legally protected parental liberties involving the "care, custody and control" of newborns. There was little or no prebirth legal parentage. At birth legal parentage beyond birth mothers was mostly established by heterosexual marriages to the birthgivers. Natural ties between husbands and children were presumed.

With increases in nonmarital births, paternity suits became more widely used. Genetically-tied unwed men could, however, inadvertently lose childcare liberties by not pursuing paternity judgments. From the mid-1990s voluntary paternity acknowledgments (VPAs) also became available to unwed genetic fathers to establish nonjudicial judgments on childcare parentage in nonmarital, and in some marital, birth settings. VPAs were usually executed shortly after birth, required no positive genetic testing, and had the force and effect of judgments.

More recently, new legal avenues to at birth and early postbirth childcare parenthood have emerged. These avenues were prompted by both social and scientific changes, including same sex marriages; increased assisted reproduction births, including in both nonsurrogacy and surrogacy settings; more widely available genetic testing; and, voluntary parentage (beyond paternity) acknowledgments.

The new avenues to childcare parentage at birth embody expanded chances for intended parentage for those with no genetic ties. Contractual parenthood and contractual  nonparenthood at birth, generally recognized, often arise in assisted reproduction birth settings. Exemplary are genetic and gestational surrogacy pacts that recognize childcare interests for some and waive childcare interests for others. As well, nonpaternity parentage acknowledgments exemplify intended parentage pacts.

Further, new avenues to childcare parentage have opened for parental-like actions solely taken after birth. These avenues differ markedly from those guiding formal adoptions. Exemplary of such acts are some marriages; residency/hold out parenting; and, de facto parenting. Some of these avenues allow postbirth acts to prompt parentage retroactive to the time of birth.

The new avenues for after birth, nonadaptive childcare parentage prompt greater chances for natural parents to lose childcare liberties without forfeiture due to fault or waiver. Such losses are sanctioned, for example, under residency/hold out parentage and de facto parentage laws.

When lost, however, the childcare liberties of natural parents might be regained. The paper urges there be greater opportunities under law for regained natural parent childcare liberties. Reforms are particularly appropriate when earlier losses occurred under new nonadaptive parentage laws with no fault or waiver. It argues that some opportunities for regaining lost childcare liberties are constitutionally compelled. Revivals of the lost childcare liberties of natural parents could entail either the reestablishment of childcare parenthood earlier secured but then ended, or the opportunity to establish in the first instance a child-parent relationship.

Upon reviewing the federal constitutional childcare liberties of natural parents, the laws on lost natural parent childcare liberties, and the current laws on regaining such liberties, the paper reviews possible new laws on regaining natural parent childcare. New laws would better follow current constitutional precedents and better promote important nonconstitutional public policies.

Keywords: natural parents, genetic parents, childcare parents, child support parents, Lehr, Troxel, adoptive parents, spousal parents, de facto parents, kinship, parent-child reunification, regained parenthood, biological parenthood, gestating parent, non-gestating parent, natural parent, blood parent, DNA parent