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Two Biological Moms: Who Gets Parental Rights?

Scientific developments in surrogacy are particularly important to lesbian couples because they could lead to changes in legal rights that so often affect them.

Case in point: a new development pointed out by California family lawyer Theresa Erickson, written about in a New York Times article on the developing science of surrogacy. The article talks about how scientific developments are making it possible for a child to have more than one biological parent. Defective DNA of a pregnant woman can be replaced with DNA from another woman, giving a child 2 biological moms.

This creates problems because state laws are set up with the assumption that a child can only have two biological parents. While a handful of cases have recently recognized the legal possibility of three parents, such as a Pennsylvania decision that made three adults pay child support, most states, including Georgia, have no such cases.

Theresa does note that the article makes a good suggestion for how the law can cope with these scientific advances:

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.

In other words, parental rights should be based on who take care of a child, not who's biologically related. I'm not sure if this is a good solution, because often in child custody cases more than two adults have helped take care of the child. Certainly, it should be a factor, but I don't think it's necessarily a better system than biological relatedness.

On the other hand, if the law does move to place more weight on who takes care of a child when deciding parental rights, that may make more rare situations where rights are given to sperm donors solely because they're biologically related to the child.

[Cross-posted at the Gay Couples Law Blog. Published by Gideon Alper, who also publishes the Atlanta Divorce Law Blog, it discusses same sex family law, estate planning, and taxes.]

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Gideon Alper

Gideon Alper