Taking Account of Arts in Determining Parenthood: A Troubling Dispute in California

Abstract

Although small in number, ARTs cases force us to think about what makes a family. In debating them, we reveal our attitudes about the body, biology and genetics, about psychology and environment, about human connection and responsibility, about the role of intentions and plans in our lives and in our law.

To resolve ARTs disputes, some courts adopt intent-based approaches. Others continue to rely on family law statutes and judicial precedents that were written before new procreative techniques developed. For example, courts resolve ARTs cases based on analogies to unwed parents' rights, adoption or "baby-selling". Differences between traditional routes to parenthood and ARTs render these analogies inapposite. Situations giving rise to ARTs disputes have not, would not, and indeed sometimes could not have arisen before. Poor choices by courts can thrust individuals who have no previous sexual or social relationship, and no mutually bargained-for expectations, into decades of conflict over parental status and child-rearing.

A recent California case, Robert B. v. Susan B., provides a heart-wrenching example of such a dispute. Both the trial and appellate courts in Susan's case claimed that they were following the plain meaning of statutes, simply declining to fill gaps left by the legislature. Certainly, legislatures should address these new types of disputes, but courts should understand that applying literal readings of outdated statutes, and relying on unpersuasive analogies to coital reproduction, are de facto exercises of judicial discretion that often create tragic results.