Article · Family Law

Who Is a Parent? Adoption, Surrogacy, and the Law's Slow Catch-Up

42 U.S.C. § 675(5)(E)

Type
Article
Jurisdiction
National
Date
2025-01-09
Topic
Family Law

For most of American history the question of who counted as a parent had an obvious answer, and the law was built for that answer. Assisted reproduction broke it. A child can now have a genetic mother, a gestational mother, an intended mother, and a legal mother who are four different people, and the statutes deciding among them were written before any of it was possible. This article works the parentage question across its modern contexts: the adoption framework and the consent and termination rules that make an adoption final or vulnerable, the constitutional floor protecting an unmarried father who has grasped the opportunity to parent, the Indian Child Welfare Act and its survival in Haaland v. Brackeen, the second-parent adoption that remains necessary despite marriage equality because a parentage presumption is not a judgment, gestational surrogacy from Baby M through the modern pre-birth order, embryo disposition disputes where no framework commands agreement, and donor anonymity in an era when consumer genetic testing has made it unenforceable. It closes with what a lawyer should actually do about a field where the technology is a decade ahead of the statutes.

Who Is a Parent? Adoption, Surrogacy, and the Law's Slow Catch-Up

Family Law > Adoption and Assisted Reproduction | Published 9 January 2025 - Updated 24 March 2026 | UpLaw - uplaw.us

In brief. American parentage law was built on an assumption — that a child has one mother, identified by birth, and one father, identified by marriage or biology — and every element of that assumption is now optional. The statutes have partly caught up, unevenly, state by state. The practical consequence is that a family formed lawfully in one state may find its parentage unrecognized in another, and the answer is almost always to obtain a judgment rather than to rely on a presumption.

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