The increasing complexity of family formation poses many challenges for law. When as many as five adults could be involved in the production of a single child – egg donor, sperm donor, gestational mother, intended mother and intended father, to take just the example of a complex surrogacy – we have to at least consider the possibility that some of our traditional rules are outdated. Melanie Jacobs has written several pieces in which she considers whether the “two parent” rule is one of those outdated rules. In this piece, she considers the financial implications of “multiple parentage,” including the implications for inheritance. Why limit a child to two parents when additional ones may bring important financial as well as emotional resources to the table?
Courts and legislatures have, when given the opportunity, virtually all reaffirmed the rule that a child can have no more than two legal parents. Thus, the Supreme Court ruled in Michael H. v. Gerald D. against granting legal parent status to the biological father of a child conceived in adultery. The mother’s husband was conclusively presumed to be the child’s father under California law, and due process did not require that the biological father be given a formal role in his daughter’s life, even though he had acted as a parent for a significant period of time. In a telling sentence, which Jacobs quotes, Justice Scalia writes that “law, like nature itself, makes no provision for dual fatherhood.” And in numerous other cases, a third party with significant ties to a child – and, often, a significant role in planning for the child’s conception and birth – is ruled the odd man out. Sometimes the excluded party is a lesbian partner who co-parented a child who has a legal father (and thus a second parent); sometimes it is a biological father, as in Michael H., whose rank in the parental hierarchy is trumped by another man’s claim to legal or presumed fatherhood; sometimes it is a former stepparent who engaged in substantial childrearing while married to the child’s mother or father; and sometimes it is one or more parties to a surrogacy, which, like the one described above, may entail the participation of as many as five different adults.
Although the tendency is to limit the number of parents to two, Jacobs discusses three instances in which children have been permitted to have more than two legal parents. First, under Louisiana law, the possibility of dual paternity exists. The state code imposes the usual presumption that a husband is the legal father of children born to his wife, but it simultaneously allows a biological father (or mother or child) to bring an action for paternity. If paternity is proven, both the husband and the biological father can be recognized as “legal fathers” and both are obliged to support the child. Second, a trial court in Pennsylvania ruled that a biological mother, her former same-sex partner, and their known sperm donor all had parental rights and obligations to the two children the trio produced. Finally, Jacobs discusses the American Law Institute’s Principles of the Law of Family Dissolution, which recognize different categories of “parent” and specifically contemplate that a child could have more than two.
Who suffers for the legal limit on the number of parents a child can have? The focus, generally, is on the loss experienced by the adults who are deprived the opportunity to parent a child they have been raising. But, as Jacobs emphasizes in this piece, children suffer as well – they are deprived of a relationship they may have had with a particular adult, but they are also deprived of that person’s financial support. For the most part, adults who do not qualify for legal parent status are not burdened with an obligation of child support. Yet someone other than a child’s two primary parents may be best suited to provide such necessary support.
At the inheritance stage, children suffer as well under the two-parent regime. Under the rules of intestate succession, children generally cannot inherit from more than two parents. Thus, a child who has been adopted will inherit only from adoptive parents except in cases of a stepparent adoption. But the current version of the Uniform Probate Code broadens the conception of parent-child relationships and seems to contemplate inheritance in some cases from or through more than two parents. Jacobs advocates for greater inheritance rights for children with more than two functional parents. Such a child, she argues “should also be able to inherit through that parent and potentially inherit from other relatives. Any relative who wishes to foreclose such inheritance has an easy mechanism by which to opt out—a will.” Greater recognition of multiple parentage would also open up other important sources of support like social security survivor benefits and wrongful death damages, both of which turn on state parentage law.
In the end, Jacobs argues for a framework that would potentially recognize additional parents and impose financial obligations that are “closely related to the particular nature of the custodial and/or visitation relationship.” This, she argues, will “best protect the best interests of the child and the parents.” She makes a strong case that the complications of recognizing multiple parents are outweighed by the benefits to children.