After several years of advocacy, the Connecticut Legislature recently passed the Connecticut Parentage Act, a comprehensive bill designed to modernize the rules regarding the creation of legal parent-child ties. The state’s governor, Ned Lamont, in the news this week for signing a bill to make Connecticut the first state to provide incarcerated people with free phone calls, approved this important parentage bill at the end of May.
The law represents the best aspect of modern era of family law—the effort to design rules that reflect the wide-range of family forms and which help individual families, regardless of form, create secure and stable ties. Parentage law in many states has been modernized in a piecemeal fashion, often through litigation in individual cases and without the ability to attend to the broader range of issues and policies affecting modern families. Connecticut’s approach, in which the legislature settled on a set of principles governing family formation and then changed all the relevant laws at the same time, is a sensible one.
The legislature was aided by expert advocacy of Professor Doug NeJaime, a professor at Yale Law School who worked with his students over the course of three years on everything from drafting to stakeholder coordination to legislative advocacy. NeJaime partnered with Polly Crozier, a lawyer at GLBTQ Legal Advocates and Defenders (GLAD), who has been reforming parentage law in other New England states.
From the Beginning: Parentage Law’s Origins
It is helpful to understand parentage law’s simple origins to appreciate both the need to modernize it and some of the challenges in doing so.
“Parentage law” is the set of statutes and judicial doctrines that determine who qualifies as a legal parent of a child. In our system, parentage is a precursor to both rights and obligations.
Under the earliest principles, which were borrowed from English law at the time of the United States’s founding, parentage flowed from the marital status of a child’s parents. A child born to a married woman had two legal parents. The woman who gave birth was the child’s legal mother; her husband was deemed the legal father under the “marital presumption,” which conclusively presumed to be the father unless it could be proven he was “out of the kingdom” at the time of conception. As a practical matter, this meant that a child born to a married woman always had two legal parents, a mother and a father.
A child born to an unmarried woman faced quite a different plight. English law treated that child as “filius nullius” or “the child of no one.” Neither the biological mother nor biological father were legally tied to an illegitimate child. As developed in American law, this principle softened with respect to unwed mothers, whose ties to their children began to be recognized in the nineteenth century. But for unwed fathers, the shift was much slower. By the early twentieth century, states imposed a duty of support on unwed fathers, enforceable through “bastardy” proceedings in civil or criminal court, but the men did not have parental rights.
The traditional system was dismantled in significant part by the Supreme Court in the 1960s and 1970s, when it recognized that unwed fathers had a constitutional right not to be categorically disregarded by state parentage laws and that “illegitimate” children had the right not to be discriminated against based on the circumstances of their births. Together, these rulings meant that the traditional system of parentage rules could not stand as a constitutional matter.
Along with these important legal changes, significant social and demographic changes also made the traditional system unworkable. Non-marital births went from rare to commonplace. Gay-parent families became both more open and more common. Reproductive technology untethered parenthood from sex and increased the range and complexity of adult involvement in conception, pregnancy, and childrearing.
The Shift Away from Tradition
Catalyzed by the Supreme Court’s rulings on illegitimacy discrimination and the rights of unwed fathers, states began the process of modernizing parentage laws in the 1970s. The key first step was to provide mechanisms to establish father-child ties even if the biological father was not married to a child’s mother. Most states did this by providing a list of ways for paternity to be established, which typically included a court’s adjudication of paternity, an acknowledgment of paternity by both parents, or “open and notorious” holding out of the child as the father’s own. They also amended their parentage laws to provide that a child’s tie to parents did not turn on their marital status. These laws also evolved to reflect the greater scientific certainty made possible by the development of DNA paternity testing. But dealing with the rights and status of unwed fathers was only the tip of the iceberg. Courts, legislators, and policymakers have had to confront a wide range of other parentage issues over the last several decades. Some of the most vexing questions relate to the treatment of egg and sperm donors, the enforceability of surrogacy agreements, the status of lesbian co-parents, and the application of parentage rules to married, same-sex couples. In the new law, Connecticut has tackled them all.
The Connecticut Parentage Act: Path to the Future
This new law, Public Act No. 21-15, addresses parentage in virtually every possible situation. I will discuss here the most important provisions.
The law includes several provisions related to surrogacy, where a woman agrees to become pregnant and carry a child with the intent that someone else will be the child’s parents. If the woman who carries the child provides both the egg and the womb, the arrangement is termed genetic or traditional surrogacy; if the egg comes from another woman, the arrangement is called gestational surrogacy.
The law of surrogacy across the country is a checkered landscape (explored in more detail here). There are some states in which it is not allowed or at least not expressly allowed. New York repealed a longstanding criminal ban on surrogacy just a few months ago. The modern trend is to permit but regulate surrogacy via statute. But most states that have opted for this approach only permit gestational surrogacy, an arrangement that is thought to eliminate many of the objections to surrogacy such as the claim that it is akin to baby-selling and does not involve the protections in place for women who surrender their babies for adoption.
The Connecticut law, however, allows and regulates both gestational and genetic surrogacy. For either type, it provides important rights and safeguards for the person serving as the surrogate. For example, the surrogate must have independent legal representation, medical insurance, and a complete physical and mental health evaluation. The surrogate also must be given exclusive control over important decisions such as whether to consent to a selective reduction in the number of fetuses, whether to terminate the pregnancy altogether, whether to consent to a c-section, and so on. The other provisions relating to surrogacy are not unique to Connecticut but provide clarity to parties contemplating a surrogacy arrangement and predictability about its enforceability.
With the legalization of same-sex marriage, many courts have struggled with how to apply paternity presumptions in a gender-neutral manner. One problem is semantic, which this law fixes by replacing gendered terms with gender-neutral ones. It uses “parentage” instead of “maternity” and “paternity,” uses “individual” instead of man/woman, and “person who gives birth” instead of mother.
The more substantive shift is in the recognition that parentage presumptions reflect more than biology. The traditional marital presumption reflected the reality that most children born to married women were fathered by the woman’s husband—and that it would not benefit anyone to identify the biological father in cases where that was not true. But in the modern era, the presumption has operated to protect family ties created by the intent of the parties as well as through genetic ties. For example, many states expressly provide that the marital presumption applies even when the child is conceived with donor sperm, as long as the husband consented to the insemination. That rule makes clear that a parent-child tie can be created by consent without any biological tie.
Moreover, to the extent the marital presumption is a benefit of marriage, rather than a tight proxy for a genetic tie, it must be available to same-sex as well as different-sex couples in order to comply with the Supreme Court’s ruling in Obergefell v. Hodges. The Supreme Court has ruled twice already to invalidate state parentage laws that did not extend the same rights to same-sex married couples (discussed here and here).
Rather than trying to adapt old rules to new situations, Connecticut has revamped the system entirely. The new law treats a person who consents to assisted reproduction with the intent to be the parent of the child as the parent of the child, regardless of the parents’ gender, sexual orientation, or marital status. It revises the system for acknowledging paternity to reflect its gender-neutral application. This means the use of gender-neutral terminology—“acknowledgements of parentage”—but also authorization for use by a birth parent and a non-biological co-parent.
Long before the Supreme Court recognized that same-sex couples have a right to marry across the country, lesbian couples had struggled with the parentage issues arising when two women, one the biological mother and one a non-biological co-parent, raised children together. In such a couple, the biological mother has full parental status based on the act of giving birth. But what is the status of the other mother? Now, same-sex couples can choose to marry and, in many states, the non-biological parent will benefit from the gender-neutral marital presumption. It’s also possible in many states for the co-parent to adopt the child (with the consent of the biological parent), although in some states this option is reserved for married couples. But both before these options were legally available—and still for couples who do not choose to marry or adopt—questions arise about whether parental rights can arise from functional parenthood alone.
The doctrine of de facto parentage was first recognized in a 1995 Wisconsin case, In re Custody of H.S.H.-K and has been adopted in some other jurisdictions. The crux of the doctrine is that a co-parent can develop parental or quasi-parental status by functioning as a parent with the active fostering of the biological parent. (The basics of the doctrine are discussed here.) Courts have struggled to define the doctrine in a way that recognition of the co-parent does not dilute the constitutionally protected parental rights of the biological mother. This is why the “active fostering” component is important because it ensures that the biological parent has consented to share parental rights much as she might do by consenting to a stepparent adoption.
The Connecticut law codifies and improves upon the judicial de facto parentage doctrine. It provides a pathway to full parentage for unmarried non-biological parents. The nonmarital presumption of parentage would presume that a person is a parent when that “person, jointly with another legal parent, resided in the same household with the child and openly held out the child as the person’s own child from the time the child was born . . . and for a period of at least two years thereafter . . . .” A person who satisfies this presumption must formally establish their parentage through an Acknowledgment of Parentage or an adjudication. This approach treats the two parents as equal from the outset—one who acquired rights through biology and the other through intent and function. But neither has superior rights or the ability to exclude the other from the child’s life.
The law also allows an individual to seek an adjudication that she is a de facto parent of the child. This requires showing by clear and convincing evidence that the individual formed a parent-child relationship that the other parent actively supported and fostered. This provision might come into play where the co-parent was not involved from the outset of the child’s birth but later came to play a parental role in the child’s life.
Finally, the Connecticut law permits a court to find that a child has more than two parents if not doing so would be detrimental to the child. California adopted a statute to permit more than two parents in 2015, in response to a case, In re M.C., in which the only person suitable to raise the child was not one of the two legal parents. This is still a very unusual rule, and there have not been very many cases in which the “more than two” option has been exercised. It makes sense, however, to give courts the discretion to fashion parentage rules necessary to ensure the child’s best interests are served.
The Connecticut Parentage Act is a welcome update to the state’s treatment of parent-child ties. Although state courts across the country have been remarkably creative and adaptive in applying old rules to very new situations, the legislative overhaul approach is preferable. Every family deserves to have the stability that comes with legal recognition and the security that the choices they have made will be honored.