Donor sperm, donor eggs, IVF, and surrogacy have made it possible for many more people to build families, but parentage law was written for a world of birth, marriage, and biology. When a family formed through assisted reproduction breaks up, or a parent dies, the law may recognize a sperm donor who never wanted to be a father and deny parentage to the person who has raised the child from birth. How do states decide who counts as a legal parent, and how are they adapting to the way families are formed today?
In this TalksOnLaw interview, Joel Cohen sits down with Douglas NeJaime, a professor at Yale Law School and one of the country's leading scholars of family law, who led the effort to pass Connecticut's Parentage Act. He explains the traditional rules of parentage, the newer doctrines that recognize intended and functional parents, and the practical steps families formed through assisted reproduction can take to secure their legal relationships.
Birth, Marriage, and Genetics
American law has traditionally recognized parents in three ways: by giving birth, by being married to the woman who gives birth, and by being a genetic parent. The marital presumption, inherited from English common law, treats a married woman's husband as the father of her child. It was once nearly impossible to rebut, because so much turned on a child's status as "legitimate," and it has weakened with the rise of genetic testing. NeJaime notes how recently the law of unmarried fathers changed. It was not until the late 1960s and early 1970s that the Supreme Court barred states from discriminating against children based on their parents' marital status, and short statutes of limitations on support claims against unmarried fathers survived into the 1980s. In Michael H. v. Gerald D. (1989), the Court upheld California's refusal to let a biological father challenge the marital presumption, with Justice Scalia writing that California law, "like nature itself," recognizes only one father.
Birth Certificates, Acknowledgments, and Genetic Tests
A birth certificate records parentage; it does not establish it. For a child born outside marriage, a father typically gets on the birth certificate by signing a voluntary acknowledgment of paternity, usually at the hospital, a mechanism Congress required states to create as part of its push to collect child support. An acknowledgment can be rescinded within 60 days. After that it has the force of a judgment and can be challenged only for fraud, duress, or material mistake of fact, so a man who signs knowing he is not the biological father may remain the legal father, and in states that allow only two parents a later-arriving biological father may be shut out. A man seeking to establish paternity through genetics can petition and request a DNA test, but many courts may deny testing when it would not serve the best interests of a child who has bonded with another father, one of several places where family courts still exercise broad, equity-like discretion.
Intended and Functional Parents
A growing number of states now treat a person who consents to assisted reproduction with the intent to be a parent as a legal parent, and treat the provider of sperm or eggs, the "donor," as not a parent at all, with no rights to terminate. Most jurisdictions have also developed functional parent doctrines that recognize someone who has formed a parent-child relationship and raised the child, such as a grandparent who stepped in when a parent struggled with addiction or incarceration. NeJaime, who has studied appellate decisions applying these doctrines across the country, explains that they often protect children in families facing poverty, housing insecurity, and other hardship.
Parentage Without Adoption
For years the only route for a non-biological parent in a same-sex couple was a second-parent adoption, which many states did not allow and which could take months and cost thousands of dollars. NeJaime argues that people should not have to adopt their own children. Some states now let intended parents obtain a judgment of parentage before the child is born, sometimes called a confirmatory adoption, without home studies or delay. Others have extended voluntary acknowledgments to intended parents of children conceived through assisted reproduction other than surrogacy, so that, as in Connecticut, a same-sex couple can establish both parents' status with a form signed at the hospital. The point, he says, is that establishing parentage should not depend on being able to afford a lawyer.
Sperm and Egg Donors
Sperm donors are generally not legal parents, but in some states that protection applies only when the recipient is a married woman, or only when a licensed physician is involved, rules that have burdened lesbian couples and single women and pushed many toward anonymous donors. A donor can still become a parent through conduct: in a California case involving the actor Jason Patric, the appellate court held that he could not claim parentage as a genetic father but could as a man who had held the child out as his own. Egg donors are usually treated like sperm donors. Disputes over egg donation tend to arise when a couple splits up and one spouse argues that the other, who gave birth to a child conceived with a donor egg, is not the mother, an argument a Tennessee court rejected in the early 2000s.
Surrogacy
States that regulate surrogacy, such as Connecticut, New York, California, and Washington, extend the intended-parent principle to it. Attorneys for the intended parents obtain a judgment of parentage that also directs how the birth certificate should be issued. Problems arise when the parties live in different states: a judgment issued in California may not be honored by vital records officials in the state where the child is born, forcing additional proceedings. Newer statutes also protect the person acting as a surrogate, giving her the right to choose her own health care providers, to refuse a medically unnecessary C-section, and to make decisions about terminating the pregnancy. NeJaime estimates that more than 95 percent of U.S. surrogacies are gestational, with no genetic link to the surrogate. Most states do not permit genetic surrogacy on the same terms, so a genetic surrogate can change her mind at birth, but Connecticut now allows it with court approval of the agreement in advance and independent counsel for both sides.
Moving Across State Lines and More Than Two Parents
Because a state's laws may not be respected elsewhere but its judgments must be, NeJaime advises families who may live in or move to less receptive states to obtain a judgment of parentage or an adoption. In V.L. v. E.L. (2016), the Supreme Court held that Alabama had to give full faith and credit to a Georgia adoption by a same-sex couple. A few states, following California's 2014 law, now allow courts to recognize more than two parents when that serves the child or when failing to do so would harm the child. In a 2018 California case, a married couple and the child's biological father were all recognized as parents of a child with special needs whom all three had raised. Stepparents generally are not legal parents unless they adopt, which usually requires the other biological parent to give up parental rights, and multi-parent laws offer some of these families another path.
What to Know Now
This conversation was recorded in June 2022, and the framework Professor NeJaime describes remains the law: parentage still turns on birth, marriage, genetics, intent, and function, and the trend he identifies toward recognizing intended parents at birth has continued. More states have adopted comprehensive parentage codes modeled on the 2017 Uniform Parentage Act, including Massachusetts, whose Parentage Act took effect in January 2025 and lets non-biological parents of children conceived through assisted reproduction establish parentage by voluntary acknowledgment. Michigan, once one of the few states to ban compensated surrogacy, repealed that ban with a law signed in April 2024 and effective in April 2025 that regulates surrogacy agreements and recognizes intended parents. Two developments since the recording bear directly on assisted reproduction. After Dobbs v. Jackson Women's Health Organization (June 2022), a surrogate's right to end a pregnancy, discussed here, depends on the abortion law of the state where she lives. In February 2024 the Alabama Supreme Court held in LePage v. Center for Reproductive Medicine that frozen embryos are "children" under the state's wrongful-death statute, and the legislature responded with civil and criminal immunity for IVF providers.
