What Makes a Parent a Parent?
By Gina Robinson, Staff Writer
As reproductive technology continues to advance, the question of parentage is perhaps more prevalent in our generation than ever before. Whereas our predecessors may have discussed the definition of a parent in the privacy of their homes when addressing adoption or remarriage, the technological age has expanded the scope of situations in which the term “parent” could apply. Some of these situations are slowly making their way into the court system. One issue in particular that has been the topic of legal debate in recent years is the definition of a parent in surrogacy and in vitro fertilization cases. Who qualifies as a mother when egg donation and gestation are no longer the task of one woman? Who qualifies as a legal parent when an embryo created by one couple’s genetic material is mistakenly implanted in another woman? Who should have custody if a surrogate changes her mind and wants to keep the child she gestated? All of these issues create legal challenges never before present in our system as to who has parental standing to seek custody of children.
In Pennsylvania, these issues of parentage have been slow to come before the courts, and, in the cases Pennsylvania courts have addressed the rulings have only served to complicate the matter. The Superior Court dealt with parental standing in light of reproductive technology in the case J.F. v. D.B., and ruled that a surrogate with no biological connection to the child she carried did not have parental standing to seek custody of the child [1]. Seemingly, the Court ruled biology determined parental status. In a Pennsylvania trial court case, Roberts v. Nafus, however, the court held that a man who raised a child as his own but was not biologically related to the child had standing as the child’s father to seek custody. The court ruled this man was in fact the child’s father because he performed fatherly duties, was listed on the child’s birth certificate as her father, and no other party had asserted paternal rights to the child [2]. This case clearly favored the definition of a parent as an individual who assumed the responsibilities of caring for a child regardless of a biological connection.
Outside of Pennsylvania jurisdiction, the courts have addressed the issue of parentage more frequently but have not reached a more conclusive definition of a parent for the purposes of standing. In regard to embryo mix-ups, situations in which a woman is mistakenly implanted with an embryo created from another couple’s genetic material, the court has been particularly vague on the issue of parental standing. In Perry-Rogers v. Fasano, the court held that because the woman carrying the child knew about the mistaken implantation shortly after it occurred, she did not have parental standing to seek custody despite her gestation of the child. The court avoided discussion of who should have parental standing by relating the incident to parents taking home the wrong newborn baby from a hospital. In such an instance, the parents would be obligated to return the newborn to her rightful parents, as the woman mistakenly implanted should be. [3] In a second embryo mix-up case, Robert B. v. Susan B., Susan was mistakenly implanted with an embryo created from Robert’s sperm and a donor’s egg. [4]. The court held that as the gestational carrier, Susan was the mother of the child, and as the sperm donor, Robert was the father. Both had parental standing to seek custody of the child. Robert’s wife, Denise, however, did not have standing for custody because she was not the child’s biological mother or gestational carrier, though she was the intended mother of any children resulting from the embryos created from Robert’s sperm and the donor’s eggs.
With the divergence of opinion on who qualifies as a parent in these cases, the question remains as to who should have parental standing to seek custody of a child. One way the courts can get around this issue in the case of a child residing with individuals not biologically related to him is by allowing these individuals to have standing in loco parentis. In a case in which a biological parent asserts custody over an individual standing in loco parentis, the best interests of the child are weighed to determine which party should receive custody. Still, this method leans toward defining a parent as a biologically-related individual and tends to favor the award of custody to the biological parent unless the evidence suggests otherwise. Ultimately, all of these cases raise a complex question that the courts have yet to answer definitively: what makes a parent a parent? A biological relationship? Assumption of parental responsibility? The intent to care for a child? Gestation? The answer remains open for debate and will likely increase in complexity as reproductive technology continues to advance.
[1] J.F. v. D.B., 2006 PA Super 90, 897 A.2d 1261 (2006).
[2] Roberts v. Nafus, 31 Pa. D. & C.5th 334 (C.P. 2013).
[3] Perry-Rogers v. Fasano, 276 A.D.2d 67, 715 N.Y.S.2d 19 (2000).
[4] Robert B. v. Susan B., 135 Cal. Rptr. 2d 785 (Cal. App. 6th Dist. 2003).
