A lesbian centered critique of "genetic parenthood".

I. INTRODUCTION

The recognition of parenthood matters. Parents possess rights that no one else can exercise, including both reasonably well-defined legal rights and more amorphous social rights. Both in law and in fact, parents have a special relationship with their children, one that is protected from interference by other individuals or by the state. In addition, parents bear special obligations towards their children--obligations that are not shared by the society at large.

Often the identification of a child's parents is simple, though on occasion it is not. It can be contested when there are either too many or too few individuals claiming parental rights. (1) Assisted reproductive technology (ART) has complicated the problems of determining parenthood even as it has increased the frequency with which the question arises. (2) As children are created in new ways, we are challenged to articulate tests for legal parenthood that are responsive to these circumstances.

In this Article, I am concerned with how we determine legal parenthood and with the role of one particular factor in that determination: the existence of genetic linkage between adult and child. Why should it matter that one person has provided one-half of the genetic material of another? Does it make that person a parent, or create a presumption in favor of his or her parenthood? Is it one factor among many to be considered? Or is it relevant at all? What should the law be?

I will conduct this inquiry within a very specific framework. This Article is an exercise in lesbian legal theory. (3) In seeking answers to my questions about what should be the law, I will conduct my exploration from a perspective that puts lesbians at the center. (4) I will therefore begin in Part I with a discussion of lesbian legal theory.

Part II will briefly review the existing critique, generated by lesbian legal theory, of genetics as a basis for parenthood. It will also examine the current state of the critique and explain why it is important to now revisit this topic. While the conversation began long ago, there has since been a period of relative silence. During that time the world has changed in two important ways. First, the need for a strong critique of the genetic identification of parents has become more apparent. Second, the high value continually placed on this link is problematic for lesbian survival.

Not only is it necessary to revisit this topic, it is also a particularly opportune moment to do so. This is the subject of Part III. ART has created new ways to become parents. New DNA testing technologies have enhanced our ability to determine genetic linkage. Both of these developments, as well as the proliferation of family forms, have brought with them social changes. The law has struggled, and continues to struggle, to cope with these changes. In short, this is a time of flux when the law is changing shape before our eyes.

Parenthood now exists in many different varieties, and it is therefore important to distinguish the different terms used in this paper. "Social parents" are those who act as parents in the real world in which a child lives, while "legal parents" are those whom the law recognizes as parents and accordingly vests with legal rights and responsibilities. It might be ideal (and certainly simpler) if being a social parent meant being a legal parent and vice versa. Unfortunately, this is not the case. Sometimes the law fails to acknowledge the parenthood of a child's social parent, while sometimes the legal parent of a child may not function as a social parent in the child's world.

Nonetheless, recognition as a child's legal parent carries great weight in society at large. The law plays a significant role in the social construction of parenthood. Exercising rights over and assuming obligations for a child are among the primary factors defining a person as a social parent. While a person may be able to exercise those rights and assume those obligations without legal recognition or formal legal authority, legal recognition obviously enhances her or his ability to do so. Indeed, the mere fact of legal recognition itself has social meaning, as it provides formal confirmation of a person's status. This is particularly true in the United States, where law is a social institution of primary importance in the lives and ideas of many people. In addition, recognition as a legal parent of a child brings with it the constitutional right to curtail the child's engagement with non-parents. (5) At the same time, recognition as a social parent is not always irrelevant in the eyes of the law. In an individual case, a person's status as a social parent may be influential. Where the social parent can be identified as a psychological parent, such identification can form the basis for a claim to legal parentage. (6)

More generally, the law is responsive to social changes and to shifts in the social definitions of parenthood. For instance, if one considers the evolving meanings of "parent" over time, the legal and social definitions are inextricably entwined. This Article, however, is primarily concerned with the identification of a child's legal parents.

The term "parent" has also been paired with other modifiers. So in addition to "legal parents" and "social parents" there are "natural parents," and "adoptive parents," as well as "surrogate mothers" and "unmarried fathers," to name but a few. In a similar vein, as recent scholarship has struggled with the issues discussed above, reference to "genetic parents" has become common. (7) All humans can, at least in theory, trace their genetic material to two immediate forebears--one male and one female. We often assume that these are the people we refer to as the parents of the child. Clearly, however, there is not a perfect overlap between the people who are the sources of the genetic material and the people who actually function as the child's social and/or legal parents. Adoption and fostering of children are well-known practices throughout the ancient myths and legends of many people. Similarly, the husband who raises a child born to his wife but genetically unrelated to him is a stock figure of history, fiction and drama. (8)

As it is typically used, the term "genetic parents" refers to the individuals who provided genetic material necessary for the creation of a child. The term is not without utility. Discussing the meaning of the genetic tie between those who create children and the children they create without a simple term to refer to the people involved is difficult. (9) Unfortunately, the label "genetic parent" is also obscure and confusing. It prematurely concludes that the person concerned is in fact a parent of some sort. This confuses analysis when the very question posed is whether the person should be considered a parent, for it seems impossible to conclude that a genetic parent is not a parent at all. This confusion complicates the discourse in recent case law and scholarship. (10)

Because the ultimate conclusion of this Article is that claims of parenthood should not turn on genetic linkage, (11) the Article will not employ the term "genetic parent." At the same time, I do need a term to designate those who provide the genetic material for a child. (12) The very need for such a new formulation reveals the contested status of the genetic link. The presence of such a link is simply no longer sufficient to ensure that one is a parent. This Article will use the term "progenitors." (13) The idea that the progenitors of a child may in fact not be those who we would recognize as a child's parents (or conversely, that the parents of a child might not be her or his progenitors) is hardly new. Referring to the progenitors of a child may assist in clarifying the questions presented. (14)

Finally, it is important to note at the outset that the ongoing struggle over the definition of parenthood is highly politicized. Parents have a privileged status under U.S. law. While parents are not immune from state or third-party intervention in the decisions they make regarding their children, they possess a high degree of autonomy. (15) The well-entrenched doctrine of "family privacy" protects most parental decision-making from outside review. Additionally, parenthood has become one of the pivots around which the debate about access to marriage for lesbian and gay couples now turns. (16) Thus, it is hardly surprising that the U.S. "culture wars" over lesbian and gay rights, the definition of family and the promotion of "family values," include in part the struggle to define who is (and who can be) a parent. (17)

II. LESBIAN LEGAL THEORY

As I have done before, (18) I take Ruthann Robson's call to develop a lesbian legal theory as my starting point. (19) Lesbian legal theory places lesbians at the center of legal analysis, rather than at the margin, (20) demanding consistent focus on the single question of what will enhance lesbian survival. (21) Put differently, the theory focuses on the question of what the law should be if our goal is to enhance lesbian survival.

That lesbian legal theory can be summed up with a simple question does not mean that it is a simple theory or that its application to any particular topic is plain. To begin with, there is a significant debate over the meaning of the word "lesbian," including whether it is a noun or an adjective. (22) This Article will do little beyond acknowledging this foundational question; it will not attempt to answer it or add to the debate, though I recognize that the term is subject to multiple interpretations. Furthermore, whatever lesbians are, they are clearly neither a monolithic nor a one-dimensional group. (23) Lesbians are of all races, ages, cultures, income brackets, physical abilities, and so on. Thus, one cannot simply imagine "a lesbian" in one's mind and build the theory from there. There is no essential lesbian. (24) Nor is there an essential lesbian identity. (25)

These two difficulties--the inability to define "lesbian" and the absence of any essentially lesbian perspective--might seem to be insurmountable. Acknowledging the difficulties of my project, the centering of lesbians is in my view nevertheless a valuable, if imperfect, thought experiment. Lesbian legal theory does not result in a proscription telling lesbians (whoever we are) what to do or …