The child welfare system often wreaks havoc on families. A family hits a difficult time—a struggle with substance use disorder, an accident involving a child with a disability, a mental health issue for a parent—and, in an instant, a child can be gone, removed from the family, and put into foster care with strangers. Once a child is removed, it can take months, if not years, for the family to be reunited. Child welfare involvement, whether it involves an investigation or foster care, is incredibly stressful for families, and no family is immune. Child welfare system involvement can be particularly stressful for families formed through assisted reproduction because one parent may lack a genetic connection with a child and, as a result, are even more vulnerable when the state intervenes.
Families form in many different ways. As outlined in the model national parentage act—the Uniform Parentage Act of 2017—state law ideally protects children in all of those myriad ways because a secure parent-child relationship is foundational to a child’s well-being and ability to thrive. One of the ways family form is through assisted reproduction. Assisted reproduction is an umbrella term to address any conception that is not through sexual intercourse. Assisted reproduction can be facilitated by a medical professional, e.g., in vitro fertilization, or it can be performed more simply at home, e.g., at-home insemination. Some families formed through assisted reproduction, including LGBTQ+ families, also use gamete donation. As the model law provides, a person who consents to assisted reproduction with the intent to be a parent is a parent of the child. Assisted reproduction, with or without gamete donation, is a well-worn path to parenthood across the United States.
Unfortunately, the law in many states has not caught up to the reality of family’s lives. For example, there is a patchwork of state laws protecting the parent-child relationship. Some states comprehensively protect children, no matter the circumstances of their birth, including assisted reproduction and surrogacy. Others lack statutory provisions to protect all children equally. A lack of clarity on protections for children born through assisted reproduction can lead to tragic consequences.
Kam’s story provides an example. Kam and her partner planned to have a child through assisted reproduction, and they successfully became pregnant at home, using known donor sperm. Unfortunately, their son was born prematurely while Kam’s partner was traveling out of state and before their planned marriage. Kam immediately traveled to be with her family, and she and her partner married less than a week after their son’s birth.
Because Kam’s son was born out of state and just before their marriage, Kam was not listed as a parent on his birth certificate. Her son required treatment in a neonatal intensive care unit, and the family lived out of state for four months until he was strong enough to come home. As soon as he was healthy enough, they returned home and lived together as a family. Kam was her son’s primary caregiver and a parent to him in every way.
Fast forward three years. Kam and her partner began to experience difficulties in their relationship. During these challenges, child welfare officials removed their son from their care. Child welfare officials recognized Kam’s partner—his birth mother—as his legal parent but not Kam, who had planned for his birth and was his primary parental caregiver for three years, because state statutes were outdated. Kam was not appointed counsel for the child welfare proceedings, and she was not allowed to participate in his removal hearing. This was devastating and heartbreaking for Kam and her son.
Kam later learned through pro bono legal help that the child welfare officials’ refusal to recognize her as a parent was wrong. Under case law, Kam was a presumed parent. And thanks to that pro bono legal help, her parentage was clarified and secured. The impact of the outdated parentage laws was most damaging for Kam’s son. He was placed in foster care, separated from his parents and family, for 18 months. During the legal marathon to get him returned home, Kam faced continual humiliation and a devaluation of her role as his parent simply because she was a non-biological mother. Their separation was long, painful, and unnecessary.
No child should experience the trauma of separation from his family due to out-of-date state statutes. Kam and her son are not alone. In my practice, I have represented many loving families impacted by the child welfare system. Families built through assisted reproduction often have a harder road because of the dangers of out-of-date statutes that do not recognize and respect these families. Oftentimes, families impacted by child welfare proceedings are hidden because these proceedings are closed to the public and because of the fear and shame these families carry.
ART practitioners have a key role to play in supporting families—including low-income families—to protect their parent-child relationships and to lead law reform efforts in their states. For example, state statutes, as recommended by the Uniform Parentage Act and codified in many states, most recently Michigan, should (1) protect children born through assisted reproduction to marital and non-marital parents; (2) ensure that consent can be demonstrated through a writing, an oral agreement, or evidence of parenting a child; and (3) include assisted reproduction with medical providers and at home. See 2024 Mich. Pub. Acts 24 § 103. State statutes should also provide greater access to justice by having clear paths to legal security, including (1) the ability of children born through assisted reproduction to have legal parentage secured through acknowledgments of parentage, and (2) a clear path to a judgement of parentage before or after birth. See 2024 Mich. Pub. Acts 24 § 202–203. Ensuring that every child can be legally secured to their parents as close to birth as possible is key to strengthening families and communities across the country and reducing the harms of child welfare system involvement.
