Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents

17 Pages Posted: 11 Oct 2005

See all articles by Melanie B. Jacobs

Melanie B. Jacobs

University of Louisville - Louis D. Brandeis School of Law

Abstract

I have previously advocated using the UPA as a preferred method by which nonlegal lesbian coparents may be adjudicated a legal parent. More specifically, I argued that applying the principles of functional parenthood, a nonlegal mother could be adjudicated a legal mother under the UPA, thus providing her with full parental status. I argue that such application is consistent with the policies of the UPA. For instance, under the UPA, the mother and child relationship is established either by the woman's having given birth to the child, adoption of the child by the woman, or an adjudication of the woman's maternity. By recognizing that maternity may be established other than by birth or adoption, the Act opens the door to other methods of maternity adjudication. One method may be proof of genetic motherhood; another may be proof of functional parenthood, specifically holding oneself out as the child's parent.

As courts attempt to recognize means of establishing parentage other than through biology and adoption, several have embraced the concept of intent-based parenthood, meaning that the party who intended to bring about the birth of the child should be declared the legal parent. However, parenthood by intention has been largely used to resolve parentage issues that arise in assisted reproduction cases involving married couples. To date, courts have demonstrated greater reluctance to use intention to establish legal parentage for nonlegal lesbian coparents. A second difficulty of the intent doctrine as currently applied is that it focuses purely on pre-birth parenting intention; it does not encompass the intent to parent that may accompany functional parenting that begins after the child's birth. Thus, when courts are required to make initial parentage determinations among multiple potential parents, intent is often useful to choose between them. When only two parties are involved, however, intent should be considered either to establish parentage in the first instance, or later, as a component of a functional parenthood analysis. Finally, while intention is a good alternative to parental determinations predicated on biology or the marital presumption, the intent principle should not preclude other methods of parental establishment. As discussed in this Article, some appellate courts concluded that if initial intent to parent is not present, functional parenthood is irrelevant.

I wrote this Article while three lesbian coparent cases were pending before the California Supreme Court. In each case, an appellate court was asked to determine whether a lesbian coparent could be declared a legal parent under the UPA. In two cases, the courts felt constrained by the intentional parent test, first articulated in Johnson v. Calvert, and did not use the UPA to determine legal parentage. Specifically, the two courts noted the Johnson intention test applied to married couples where only one legal mother would be established. I argue that reading of Johnson is too narrow and inconsistent with the court's opinion. The third appellate case correctly recognized (I argue) that the UPA embraces intentional and functional parentage and is not limited to a strict nuclear family application. In fact, the California Supreme Court has now heard the appeals of the three above-referenced cases and has ruled that the UPA can, indeed, be used to establish legal parentage for lesbian coparents.

Suggested Citation

Jacobs, Melanie B., Applying Intent-Based Parentage Principles to Nonlegal Lesbian Coparents. Northern Illinois University Law Review, Vol. 25, pp. 433-48, 2005, MSU Legal Studies Research Paper No. 03-14 , Available at SSRN: https://ssrn.com/abstract=824406

Melanie B. Jacobs (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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