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April 01, 2018

From the Editor in Chief

By: Kathleen A. Hogan

The question, “Where did I come from?” has longstanding philosophical, scientific, legal, political, and interpersonal implications, just to name a few. At one time, the “family tree” was the subject of oral history in some cultures. It may also have been recorded in family bibles, church records, or similar logs compiled over generations in other cultures. Searching for ancestors and relatives online or through DNA-testing companies such as is now a popular pastime  for some. The proliferation of relatively inexpensive commercial DNA testing has made it possible for those who have an interest in the subject to obtain fairly specific information about their ethnic, geographic, or cultural roots. Nevertheless, many people consider their father, mother, or sibling to be a person who is not genetically related to them. Those same individuals may or may not bear some legal relationship to one another.

In the legal and scientific communities, the concept of parentage has evolved over the years in ways few could have predicted. The last time the Family Advocate did an issue focused on the subject of parentage was in 2002. The Board of Editors reviewed that issue in planning this one. It was entertaining and eye-opening to be reminded of how far we have moved beyond the concepts that were cutting-edge at that time. In this issue, the Board has put together a fresh look at the concept of parentage as faced by families today.

Harry L. Tindall and Elizabeth H. Edwards illustrate how far we have come in their article titled “The Evolution of the Legal Ramifications of Parentage: An Overview.” The authors survey the legal implications of parentage as reflected in the common law duty to protect, child welfare and labor laws, the equal rights of nonmarital children, and the fundamental rights and duties of parents. In conclusion, the authors observe that the legal rights of parents today stand in sharp contrast to those under common law.

Meg Nemeth Ledebuhr traces the social and technological transformations that continue to challenge traditional notions of marriage and reproduction in her article, “Parentage and the Modern Family: The Only Constant Is Change.” Courts and legislatures have had to grapple with redefining parentage in light of the ever- evolving nature of the family unit. This article reviews some of the central issues   in parentage law, such as those created by the evolution of the UPA; ART laws; Obergefell; the “Craigslist case”; Pavan v. Smith; gender-neutrality efforts, generally; and tri-parenting arrangements.

Jamie D. Pedersen provides an article on “The New Uniform Parentage Act of 2017.” This article outlines five major changes to the UPA, which was first drafted in 1973, revised in 2000, and amended in 2002 and 2017. The 2017 changes are designed to account for Obergefell and its progeny, which likely render unconstitutional parentage laws treating same-sex couples differently from different-sex couples. First, the 2017 UPA seeks to ensure the equal treatment of children born to same- sex couples and to cure the constitutional infirmity in previous versions of the UPA. Second, UPA 2017 establishes a de facto parent as a legal parent of a child. Third, UPA 2017 precludes establishment of a parent-child relationship by the perpetrator of a sexual assault that resulted in the conception of the child. Fourth, UPA 2017 substantially rewrites the surrogacy provisions of UPA 2002. Finally, UPA 2017 includes a new article addressing the right of children conceived through assisted reproductive technology to access medical and identifying information regarding any gamete providers.

Parentage is one of the arenas in which legal principles and scientific advances coexist and sometime collide. George C. Maha discusses the intersection of law and science in “UPA 2017: The Science of It All.” The drafting committee faced    the challenge of not only understanding the law—it also had to understand very complex scientific issues. These scientific issues ranged from artificial reproduction to mitochondrial replacement therapy to genetic testing to determinations of parentage. The article describes the ways in which the UPA incorporates not just a legal but also a scientific framework for addressing disputed parentage. It discusses such matters as correction of evidentiary problems with genetic tests; techniques for resolving genetic testing difficulties posed by twins; and methods of testing other biological relatives of alleged parents who are unavailable. A requirement for accreditation of paternity-testing laboratories is also discussed to safeguard against the use of inappropriate science.

Long before technology evolved to its present state, in the context of family law, one of the most significant legal presumptions may have been the presumption    of parentage. James J. Vedder and Brittney M. Miller have provided the article “Presumptions in Paternity Cases: Who Is the Father in the Eyes of the Law?” For the most part, those presumptions still exist. The authors discuss ways to establish the three categories of paternity presumptions—those based on a marital relationship, biological and genetic connections, and the intent and actions of an individual seeking to establish parentage. The authors then discuss ways of rebutting the presumptions. Because such significant rights and obligations attach to parentage presumptions, parents and third parties may be highly motivated to establish parentage or to disestablish parentage. In such cases, courts may need to look beyond a child’s biological connections and consider the intended family structure and the child’s best interests.

Many children today are cared for and raised by people who share no biological connection but who are connected to them by strong bonds that are parental in nature. Just as would be true with those who share a biological connection, the termination of these parent-child relationships can be disruptive—even traumatic— for children. Courtney G. Joslin writes about “De Facto Parentage and the Modern Family.” In most states, the trend over time has been to extend greater recognition and protection to these psychological relationships. In the past, states were more likely to protect the relationships under equitable doctrines. More recently, states have concluded that such persons can be recognized as legal parents under statutory parentage provisions. The 2017 UPA revisions follow and further this trend.

Tiffany L. Palmer addresses the issue of multiparent families in her article, “How Many Parents? Multiparent Families Are Increasingly Recognized by Law and Society.” Divorce, cohabitation, remarriage, LGBT marriage equality, assisted reproduction options, and other social changes are producing scenarios in which a child is parented by more than two people. Sometimes this occurs by circumstances that arise after a child is born. A newer trend, however, can be discerned in the increasing number of people choosing to form families with three or more co-parents prior to conception. How the law recognizes multiparent families varies significantly across the country, but many legislatures and courts are responding to these social trends with legal and a third person who is legally recognized as having some parental rights and responsibilities. The majority of states, however, only recognize two individuals as legal parents, even though, in today’s modern families, it is quite common to have more than two people parenting a child. Proactive legal planning in the absence of full parental recognition is recommended.

Bruce L. Wilder has written “Test-Tube Parents: Cryopreservation and the Fertile Corpse—A Retrospective.” The legal analysis of posthumous reproduction requires consideration of not only the genetic pedigree of the child but also of who will fill the role of social and legal parent as the child grows up and of how legal parentage may affect other beneficiaries of an estate. The analysis requires the careful parsing of biological, legal, and social issues, and legal arguments and decisions should make clear which of these attributes are being discussed. Physicians and storage facilities should establish policies that spell out as clearly as possible the intentions, rights, and responsibilities of the individuals who provide gametes and embryos for future use under a range of contingencies. There also should be guidance as to how dispositional control is to be determined.

“What do we tell the kids?” has been an age-old dilemma for parents and caretakers in countless settings. Psychologist Robert A. Simon has written “On Talking with Young Children about Their Nontraditional Families.” While it is true that the definition of “family” is flexible and varies, it is also true that children, especially young children, gain a sense of well-being from seeing themselves as being like other people while, at the same time, feeling safe and secure with their differences and with who they are and where they belong. Age- and developmentally appropriate discussions about belonging to nontraditional families will help them achieve this sense of well-being. Such discussions will also help children exposed to questions or disapproval from others in the community regarding their family structures. Dr. Simon addresses questions about whether, when, and how to discuss with children how they came into being or how the family was formed. Dr. Simon suggests that embracing how we are alike and how we are different is a fundamental key to mental health,resilience, and self-esteem. fa

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Kathleen A. Hogan

Kathleen A. Hogan ([email protected]) is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and editor in chief of Family Advocate.