I recently attended Lavender Law, the LGBTQ+ Bar Association’s annual conference. This was a year of examining the many attacks that are occurring on members of the LGBTQ+ community who simply want to live their lives peacefully. That includes being able to form and expand their families with children.

The question of who is a parent has been the subject of much litigation and legislation in this country for many years. With the development of assisted reproductive technology, identifying the provider of genetic material is not the only way to determine who the parents are. As we have grown and changed as a society, we see more families that are not the stereotype from the fifties. We also see unmarried couples having children, and same-sex couples, opposite-sex couples, and individuals either adopting children or using assisted reproduction methods. This means involving third parties such as sperm donors, egg donors and gestational carriers to create their families. And it also means that in many cases biology is not the only test of whether a parent and child relationship has been created.

From a legal perspective, three general bases for parentage have been recognized in many states, including Maryland and Washington DC:

1. Biological parent;
2. Intention to become a parent; and
3. Functional or de facto parent.

BIOLOGICAL PARENT.

A biological parent is obvious, except when it isn’t. For example:

A person who gives birth to a baby is the child’s mother; EXCEPT

In the case of a parent who does not give birth to the child, that person is the biological parent if their sperm or ovum were supplied to create the child; EXCEPT for

In addition, someone who did not intend to become a parent may nevertheless be adjudicated to be a child’s parent as a result of DNA testing demonstrating that this person shares DNA with the child in question, and in the absence of a donation agreement stating that this person was a donor only and would not become a legal parent.

INTENTION TO BECOME A PARENT.

This confusion over biology can be alleviated with an examination of the intention of parties to become parents.

Since the beginning of our states’ family laws, married parties have been legally presumed to be the parents of a child born during the marriage. This presumption is based on the intention of married couples to form families and have children. The marital presumption is not based on biology, depending only on the existence of a marriage. There has been litigation in various states to apply this marital presumption differently to – and to discriminate against - same-sex couples, but the marital presumption has generally prevailed.

Non-married couples, as well as individuals, married or not, demonstrate their intention to become parents in many ways including:

Most of the time, these processes are by consent and not the subject of any challenge or dispute. So it is the intention of the person to become a parent that creates the parent-child relationship, regardless of where the genetic material came from. This affirmative act of creating a family relationship – through adoption or assisted reproduction methods – demonstrates that this person is a parent of that child.

While they do not exist in Maryland or DC, so-called “religious freedom” laws exist in several states that permit welfare agencies and private adoption agencies to discriminate against same-sex couples in adoption or foster care applications. Hurdles or limitations to the availability of assisted reproduction methods for trans, gay or lesbian potential parents have been an indirect and less visible way to discriminate against this community.

FUNCTIONAL OR DE FACTO PARENT.

The functional or de facto parent basis reminds me of the “duck test.” If it looks like a duck, walks like a duck and quacks like a duck, it’s a duck. Unfortunately, this situation sometimes arises in the context of the breakup of an unmarried couple where one member of the couple has a biological relationship with the child, and upon the breakup tries to deprive their former partner of custody rights, and denies that party’s parental relationship with the child. It occurs where the couple did not go through the processes mentioned above to formally establish both parents’ legal parentage, such as pursuing a pre-birth order, parentage order or confirmatory adoption. Suddenly, a biological parent may attempt to cast their former partner as a roommate, housekeeper, nanny or other non-parental role. In such disputes, using the over-arching legal standard of the best interests of the child, the Court looks at several factors to determine whether the person in question has been functioning like a parent and has forged a parental relationship with the child. The Court also examines whether the couple demonstrated the intention previously that they would both be the child’s parents.

Those of us who are parents certainly know being a true parent requires more than biology; it requires intention and action. At its core, these three different bases for establishing parentage are designed to protect the best interests of the child in question by formally recognizing their parents, so that these parents have not only the rights but the obligations of being a legal parent, providing for and protecting their child.