Taking Account of ARTs in Determining Parenthood: A Troubling Dispute in California


Assisted reproductive techniques (“ARTs”) have brought significant changes to the arrangements and choices some people make about procreation. Complex new technologies inevitably generate mistakes; assisted reproduction is no exception. In resolving these disputes, legislatures have left in place and courts have continued to rely on family law statutes that were drafted before any of the new procreative techniques developed. Applying these older statutes to disputes involving ARTs is problematic. What makes a family? Who is a parent? In determining who to recognize as a legal parent, we reveal our attitudes about the body, biology and genetics, about psychology and environment, about human connection and responsibility, about the role of intentions and plans in our lives and in our law. Part II provides a sketch of the facts and the litigation history of Robert v. Susan. Part III explores California’s statutory scheme for paternity and evaluates its application in ARTs disputes generally and in Susan’s case in particular. Part IV assesses the relevance of marital status to resolution of parentage disputes, especially in ARTs conflicts like the one between Robert and Susan. Part V examines the interests of the child and considers whether a different or broader standard should be applied to resolve parentage problems in the context of ARTs. Part VI summarizes and concludes.


Reproductive technology, Paternity -- California, Best interests of the child (Law)



Marjorie M. Schultz (University of California, Berkeley)



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