Intentional Parenthood: A Solution to the Plight of Same-Sex Partners Striving for Legal Recognition as Parents

Abstract

One significant ramification of the plight of same-sex partners attempting to receive legal recognition of their non-“traditional” family structure is their inability to be recognized as the legal and/or additional parent of a non-biologically related child either by adoption or following fertility treatments. It is a fact that gay partners are not legally recognized as married, therefore they are not granted the same legal recognition as their heterosexual peers.

In this research, I will explore the main approaches available today to same-sex partners to acquire legal parentage and their inherent difficulties. I will suggest a way to circumvent those difficulties by the official recognition of the dual maternity or paternity of the two partners by intentional parenthood or as I prefer to rephrase it - determining legal parenthood by agreement (DLPBA). In the research literature and in the judiciary, it is possible to find, here and there, implementation of this innovative suggestion in the gay parentage context, but, unfortunately, only within the narrow spectrum of fertility treatments incidents.

I will also suggest the most appropriate, moderate and balanced implementation of this normative model in the abovementioned context and I will search its possible to expansion for its implementation in the gay adoption context. In my opinion, my normative model is a better, sufficient, flexible, and just approach even for the resolution of the sensitive and complicated dilemmas for achieving legitimacy of gay parentage. That is where those gay partners lack any biologic connection to the child and even their marital status is not legally recognized.

In order to provide a base for my contention, I will first build the theoretical infrastructure that endorses DLPBA and explore its advantages and the general practical aspects of its implementation. I will then investigate those aspects in the context of gay parentage either by adoption or following medical procedures. In the completion of the research, following my discussion, I will open the question whether my suggested normative model can also be applied to the wider population of children who were born the “old-fashioned way” to heterosexual married couples.

Keywords: Family Law, Contract Law, Same-Sex Marriage, Same-Sex Partners, Human Rights, Alternative Families, The Best Interests of the Child, Bionormative Family, Fertility Treatments, Assisted Reproduction, Parentage, Parenthood, Dual Paternity/ Maternity, Intended Parent, Status