(2001) nummer 1 januari/februari - Nemesis

I TAKING
parentage, once parentage is established, the child's
parent or parents have exclusive rights to exercise their
authority over the child. As a general rule, if a child is
born during a heterosexual marriage, then parentage
laws create a presumption that the husband and wife
are the child's legal parents and the couple shares
parental authority. When the child is not born to a heterosexual
marriage, however, under the common law
the parentage rights of a biological father were unrecognized
or severely limited. This changed, though,
when unmarried fathers began to challenge the constitutionality
of statutes that had prevented them from asserting
parental rights conceming their biological children.
State statutes that ignored unmarried fathers in
custody or adoption actions were struck down as unconstitutional
because the statutes violated the due
process clause of the United States Constitution in certain
situations. The United States Supreme Court held
that, 'When an unwed father demonstrates a full commitment
to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,
(...) his interest in personal contact with this child acquires
substantial protection under the Due Process
Clause (...). If he grasps that opportunity and accepts
some measure of responsibility for the child's future' 6
then the unwed father's constitutional due process
rights must be protected.
By recognizing the sperm donor as a
parent, he can prevent the child 's social
parent from adopting the child
Based on this analysis, in the United States a father of
a non-marital child must be given an opportunity to assert
his parental rights and, if he has attempted to assume
parental obligations, he cannot be excluded from
the protections granted other legal parent-child relationships.
These rights include the ability to petition a
court for a custody/residency order or a visitation/contact
order and, more importantly, the possibility of preventing
the adoption of the child by withholding his
parental consent to the adoption. As a general rule under
U.S. parentage law, if a person is a legal parent,
then that person has the right to exercise all the rights
of a parent; if a person is not a legal parent, he or she
has no parental rights conceming the child, even
though that person may be acting as the child's co-parent.
In addition, legal parenthood is established
through proof of biological parentage; only a court-ordered
termination of parental rights can cut off the biological
parent's status as a legal parent. This means
THE SIDE EXIT IN THE UNITED STATES NANCY G. MAXWELL
that if a visitation or custody dispute arises between a
child's biological parent and a person who has been
raising the child but who is not the child biological parent,
the biological parent's right of custody and visitation
always is superior to any claims by this 'non-parent.
' Therefore, the question of whether a sperm donor
in an AID birth is the child's legal parent becomes extremely
important because conferring legal parenthood
to a sperm donor may prevent another person, who is
the child's social parent, from asserting any legal rights
of custody or visitation conceming the child, even
though this social parent has raised the child since
birth.
Early Case Law
In 1977 a New Jersey court 7 decided the first reported
case dealing with the parental rights of a man who provided
his sperm to an unmarried woman. 8 As with the
cases that were to follow, the testimony of the sperm
donor and the mother were conflicting and contradictory.
For example, in the majority of these cases, the
mother asserts that she did not intend for the sperm
donor to have a parental relationship with the child.
The sperm donor, on the other hand, claims that he assumed,
or the parties agreed, that he would be the
child' s father and have certain parental rights conceming
any child bom of the AID.
In the 1977 case, when the mother and the sperm donor
discovered their differing views conceming the role of
the sperm donor in the life of the child conceived by
AID, the sperm donor brought an action seeking a
court determination that he was the legal parent of the
child. Because there was no applicable AID statute in
New Jersey in 1977, the court relied on common law
principles that had developed in case law. The court
framed the issue as one involving the definition of a
'natural' father. Consequently the court determined the
sperm donor was the legal parent of the child and
granted the sperm donor visitation rights against the
wishes of the mother, who the court characterized as
'thwarting' the sperm donor's attempts to establish a
relationship with the child.
The 1980s Cases-Interpreting Statutes that
Regulate the Parental Rights in AID Births
As mentioned previously, each state in the United
States has the authority to determine the laws conceming
a child's parentage. However, the desirability of interstate
uniformity and predictability conceming a
child's parentage resulted in the National Conference
of Commissioners on Uniform State Laws proposing
the Uniform Parentage Act in 1973. 9 Although a state' s
6. Lehr v. Richardson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. riage, 2d similar to the Dutch registered partnership. Under the civil
614(1983).
union legislation, 'The rights of parties to a civil union, with respect
7. C.M. v. CC, mi A.2d 821 (NJ. Juv. & Dom. Rel. Ct. 1977). to a child of whom either becomes the natural parent during the term
8. In the United States civil marriage is not available to same-gender of the civil union, shall be the same as those of a married couple, with
couples, see Nancy G. Maxwell, 'Opening Civil Marriage to Same- respect to a child of whom either spouse becomes the natural parent
gender Couples: a Netherlands-United States Comparison', vol. 4.3 during the marriage.' 2000 Vt. Acts & Resolves 91, par. 1204f.
Electronic Journal of Comparative Law, November 2000, Same-gender couples have been allo wed to adopt in Vermont since
Consequently all the cases 1993, under the case of Adoptions of B.L.V.B. and E.L.V.B., 628
here involve 'unmarried' women, even if the mother is in a domes- A.2d 1271 (Vt. 1993). In 1995 the Vermont legislature enacted spetic
partnership with another woman. In May 2000, the Vermont legcific legislation to allow same-gender co-parent adoptions, see Vt.
islature created 'civil unions' which is a parallel institution to mar- Stat. Ann. tit. 15A par. l-102(b), 1999. Although Vermont is the
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NEMESIS 2001 nr. 1