First Love, Then Marriage, Then a Baby Carriage?

摘要

Above all else, this project is about parentage in the modern American legal system and culture. Advanced reproductive technologies require our courts to reconsider the long-standing presumption that a child has only one female mother and one male father. We now have children of choice, rather than chance. Assisted Reproductive Technology and its widespread availability and use and changed the landscape of parentage maybe forever. And the children of such efforts remain largely unprotected by our current legal system that favors reproduction by chance within a recognized marriage or at the least, a traditional two-parent paradigm. However, assisted reproduction calls into question the current legal framework for determinations of parentage based in marriage and/or biology.;Based on a long and convoluted history, our current legal system conflates marriage and parentage. Moreover, in many circumstances the law restricts both the number and gender of the parties to a marriage or possible parents. One of the more compelling historical and still salient justifications for doing so is to accord the "Best Interest of the Child" standard which purports to underpin all such determinations. Unfortunately, that standard cannot best be met when weighed in a balance against a constitutionally protected exclusive right to parent vested in an adult either by a determination of a genetic link to the child or marriage to another parent. Children of choice, who result from the affirmative and purposive engagement in assisted reproduction, should be entitled to the same protections as children of chance born to a man and woman who are married.;Once we look beyond marriage and biology as determiners of parentage, a better way for our legal system to serve the best interests of children, and their parents, is to identify and protect those adult relationships that are parental in nature and that benefit the child irrespective of a marriage between parents or genetic links to the child. Fortunately, the tools to accomplish this paradigm shift already are in existence.;The expansion of our commonly used definitions and broader view of our current statutes will allow the legal system to better protect both children of choice and children of chance by making better parentage determinations. To that end, this project also takes on the ambitious task of praxis; of applying the theories to the law as it stands and demonstrating how the new paradigm might look as it is implemented with all of its far-reaching tentacles.