Daina Goldenberg

    LAW 310 H: Law, Science, And Technology 

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       Is it unprofessional to say that this simply qualifies as one of the coolest classes ever? We had the opportunity to explore a host of topics relating to science and technology, and how advancements in these fields are addressed by changing bodies of law. We addressed how rules regarding scientific evidence in the courtroom are administered and applied, by accessing case history - we talked about the merits and drawbacks of fingerprinting, lie-detector testing, DNA testing, handwriting analysis, and other criminal forensics testing. We explored biological patents, and advanced family reproductive methods, and how conflicts in these areas inspire truly unique issues in the application of current law. This class really highlighted how revealing it can be to read and analyze case law, and showed me that legal research is something I could see myself doing as a graduate student and beyond.  Below is an essay from the course (one of three assigned essays), that focused specifically on a case regarding in-vitro fertilization, and biological vs. de facto parental rights. I found this area of law to be especially pertinent in today's society, and an integral topic for discussion as we navigate current family law. It was one of my favorite topics of study in this class, and though I do not intend to specialize in family law, the unique nature of this hypothetical case inspires me to find niches in law that are similarly unique in the problems they pose, and potential solutions they offer.

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Check out the essay: 

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          The determination of custody arrangements in family law cases prompts the court to balance two important interests: the right of the parents to claim guardianship of their child, and the legal standard that requires courts to rule in the best interest of the child. In the case of Judy’s, Tyler’s, and Megan’s parenthood over child Rose, we need to consider their claims to parenthood. Tyler and Megan appear as legal parents in Rose’s birth certificate, whereas Judy has still not completed the process of legal adoption. However, Judy is still a nuclear-DNA provider, an intentional mother and a de facto parent to Rose; Tyler is a biological, intentional, and de facto parent. The comprehensive nature of these parental definitions adequately creates a claim for guardianship by either Judy or Tyler. Thus, we will need to prioritize these claims, particularly focusing on de facto guardianship, in a manner that yields a living situation acting in Rose’s best interest, while respecting Judy’s and Tyler’s parenthood. This will very likely lead to shared custody, and the court’s ultimate decision to grant primary living arrangements to be under Judy’s discretion.

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            Judy, though not the gestational mother to Rose, provided nuclear DNA that constituted approximately 99 percent of the egg’s DNA – it is her nuclear DNA, not Megan’s mitochondrial DNA, which will account for many of Rose’s physical characteristics and character traits (Tingley, NYT). Hypothetically, if DNA tests were to be conducted, both Tyler and Judy could fairly confidently be tested to be biological parents. So, even though Judy does not have any legal adoptive claims to Rose, she could be accepted, in the courts, as a biological parent (assuming that DNA evidence would be accepted in the case). And though Washington State does not recognize surrogacy agreements, Megan and Judy’s fertility procedures partaken equitably as a couple must be observed, and thus Megan’s gestation of the child should not discredit Judy’s biological claims to parenthood (Kuszler, 2015). In expressing some of the more “genetically stringent” applications of parenthood relevant to Judy, we acknowledge her fairly equal standing with Tyler as a biological parent.

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            We can use the elements of de facto parenthood, and the case of L.B. (155 Wn.2d 679) to further strengthen Judy’s case, as well as recognize Tyler’s function as a de facto parent in this situation. De facto parenthood acknowledges these requirements: 1) “that the biological parent consented to and fostered the parent-like relationship of the non-biological parent”; 2) “that the non-biological parent and the child lived together in the same household”; 3) “that the non-biological parent assumed the obligations of parenthood without expectation of compensation”: 4) “that the non-biological parent has been in a parental role for a length of time sufficient to have established a bonded, dependent, paternal relationship with the child” (McKinley Irvin, 2012). These criteria are all met in this case. We recognize the cordial agreement between the couple, Megan and Judy, and the sperm donor, Tyler, as they consented to parent Rose together. We note that both Megan and Judy intended to raise a child as a couple, unguided by financial incentives. We also see that, since Tyler lived hundreds of miles away from the couple, Rose lived with Megan and Judy, and therefore likely developed a close attachment with both of her mothers. This further strengths Judy’s position as a de facto parent.

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            In the case of L.B., the court recognized Sue Ellen Carvin, “who [was] neither a biological nor adoptive parent” as a de facto parent to child L.B., following her separation with her partner Britain, the biological and gestational mother. The court considered a broad interpretation of WA statutory law, as well as the “best interest of the child” standard”, to arrive at this decision (155 Wn. 2d 679). Using this case as fitting precedent, we note that not only does Judy fit the standards of de facto parenthood; she also exceeds the required factors of parenthood established in the L.B. decision because she is in fact a biological parent as well as a de facto parent. And though Tyler is an involved biological, legal, and de facto parent, the fact that he lives hundreds of miles away from Rose’s original home creates a conflict regarding stability for the child. Using the criteria of L.B., in addition to Judy’s standing as a biological parent, and her consistent care of Rose in the couple’s original home, it is very possible that the majority of parental care time could be allotted to Judy, even though Tyler will still be able to make a strong argument for some partial custody.

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          Nontraditional families continue to expand the landscape of family law and challenge legal institutions to consider more intuitive and emotionally guided aspects of parenthood that more effectively serve children and parents. Though we asserted both Judy’s and Tyler’s biological parenthood, more importantly, we recognized their roles as de facto parents. And, by prioritizing the values of intentional parenthood as defined by the case of L.B, we thus concluded that Judy’s more stable emotional role in Rose’s life could be the defining factor that grants her primary custody, and Tyler only a partial custody arrangement, in this case.

 

 

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Works Cited

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Kuszler, Patricia. "Law and Reproduction: Personhood and Parenthood in the Brave New World of Assisted Reproductive Technology." University of Washington, Seattle. 23 Feb. 2015. Lecture.

 

 

"155 Wn.2d 679, In Re Parentage of L.B." In Re: Parentage of L.B. MRSC of Washington, n.d. Web. 02 Mar. 2015. <http://courts.mrsc.org/mc/courts/zsupreme/155wn2d/155wn2d0679.htm>.

 

 

Tingley, Kim. "The Brave New World of Three-Parent I.V.F." The New York Times. The New York Times, 28 June 2014. Web. 03 Mar. 2015. <http://www.nytimes.com/2014/06/29/magazine/the-brave-new-world-of-three-parent-ivf.html>.

 

 

"Washington's Recognition of Non-Biological Parental Relationships." Web blog post. McKinley Irvin Family Law. McKinley Irvin Family Law, 15 Jan. 2012. Web. 2 Mar. 2015. <http://www.mckinleyirvin.com/Family-Law-Blog/2012/January/Washington-8217-s-Recognition-of-Non-Biological-.aspx>.