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St. Thomas Law Review

First Page

293

Document Type

Comment

Abstract

Evolutions in societal norms have redefined what it means to be a family in today's society. Due to the widespread shift in those who seek the aid of reproductive technologies, the number of would-be parents has greatly expanded. This great range of parenting possibilities presents novel and complicated issues in terms of legal parentage of children. In an attempt to address these novel issues, the Uniform Parentage Act was adopted in 2000, but has changed little since. Much inconsistency exists among and within the several states in determinations of legal parentage, largely in the area of same-sex couples. Adhering strictly to a definition of "parent" that does not reflect realities of families as they exist within society has the effect of violating those families who fall outside its scope. Remedies such as adoptions and co-parenting agreements afford nonbiological same-sex parents a remedy at law in some instances, but loopholes still create obstacles. This presents an issue as to the traditional understanding of a "parent" and calls for a broader interpretation of the term to encompass parents as they exist among non-traditional family units today, so as to afford them and their children proper and predictable protection under the law. In particular, a "parent" should include the same-sex non-biological parent of a child conceived via reproductive technology. Such a change is consistent with the underlying policies and rationales involved in legal parentage, and can, in effect, serve to further them while ensuring the child is afforded a legally recognized relationship with his or her second parent. This Comment does not propose that all third parties should be afforded the opportunity to co-parent a child, but focuses only on the necessitated, yet limited, expansion of this fundamental right. As the Vermont Supreme Court noted, "the term 'parent' is specific to the context of the family involved." We have seen evolutions of society and of our fundamental rights as its members in the past, but is the time right for another forward leap? Part II of this Comment addresses the effect that assisted reproductive technology has had on same-sex parentage. Part III addresses the Uniform Parentage Act and its failure to adequately address same-sex couples as legal "parents," therefore, creating the great inconsistencies among and within the several states. Part IV addresses the fundamental right of a natural parent over his or her child and the possibility for the right's modem evolution. Part V addresses a woman's fundamental right to procreate, the policies underlying parentage laws, and current adoption laws, all of which are demonstrative of the need for an evolved understanding and application of what it means to be a "parent" in today's society in order to afford same-sex parents adequate legal rights under the same legal presumptions as other "parents." Part VI explains how that presumption should be, and in some cases is, extended to same-sex couples, and also proposes the best means by which to do so. Ultimately, patterns of constitutional evolution, growing nationwide acceptance of same-sex adoption, and the policies underlying parentage law are in accord with evolving the legal definition of a "parent" to encompass same-sex non-biological parents and afford them predictable and consistent constitutional protections.

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