Codifying the Intent Test

28 Pages Posted: 28 Jan 2015

See all articles by Mary Patricia Byrn

Mary Patricia Byrn

William Mitchell College of Law

Erica A. Holzer

Maslon Edelman Borman & Brand, LLP

Date Written: January 26, 2015

Abstract

For the vast majority of children born in the United States, their legal parents are determined at birth. In every state, there is a self-executing statute that identifies the woman who gives birth to a child as the child’s legal mother. Also in every state, there are self-executing statutes that apply a set of presumptions to identify the child’s legal father. These statutes solidify family relationships at the moment of birth, which not only avoids the costly and time-consuming process of obtaining a court order to determine the legal parents of every child born, but also avoids the legal uncertainty that the child and parents would endure before such an order were issued. Through these self-executing parentage statutes, children, parents, and the state know, at the moment of birth, who the child’s legal parents are and, thereby, who is legally responsible for the care and nurturing of the child.

Unfortunately, state parentage statutes fall short of accomplishing their intended goals because they do not provide legal parents at the moment of birth to every child. It is often only children conceived via sexual reproduction who reap the stabilizing benefits of state parentage statutes. In contrast, children conceived via assisted reproductive technology (ART) most often begin their lives without clearly identified legal parents. It is our contention that the time has come for state legislatures to provide comprehensive, self-executing parentage statutes that determine the legal parents at the moment of birth for all children — including those conceived via ART.

Part II of this article argues that states should adopt self-executing parentage statutes based on the intent test to provide legal parents at the moment of birth to all children conceived via ART. Part III of this article proposes a comprehensive ART statute that incorporates the intent test and provides legal parents at the moment of birth to all children conceived via ART as an example for states to adopt.

Keywords: intent test, parentage, self-executing statute, assisted reproductive technology, legal parentage, model act

Suggested Citation

Byrn, Mary Patricia and Holzer, Erica A., Codifying the Intent Test (January 26, 2015). 41 William Mitchell Law Review 130 (2015 Forthcoming), Available at SSRN: https://ssrn.com/abstract=2555845

Mary Patricia Byrn (Contact Author)

William Mitchell College of Law ( email )

875 Summit Avenue
Saint Paul, MN 55105
United States
651-290-6478 (Phone)

Erica A. Holzer

Maslon Edelman Borman & Brand, LLP ( email )

3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4140
United States

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