Who’s Your Daddy Redux

In 2004 Lex published an article in the Loyola University Chicago law Journal entitled, “Who’s Your Daddy? : An Analysis of Illinois’ Law of Parentage and the Meaning of Parenthood.” The premise of the article was a criticism of the Illinois statutory scheme that defined parenthood exclusively in genetic terms. In Illinois, paternity rights are absolute for a man who impregnates a woman, regardless of any competing circumstances.

At the same time, I successfully had the Illinois parentage act declared unconstitutional by a courageous Kane County trial Judge (In re John M) on the basis that the statute deprived families of due process rights by its exclusive reliance on a genetic based definition of parentage, regardless of the circumstances. In other words, if a child is born to an intact marriage, and the husband is not the bio-dad, should he automatically be denied the label of father in favor of the adulterous interloper? I argued, unsuccessfully before the Illinois Supreme Court, that a statutory scheme that did not consider the best interest of the child in determining parentage, denied that child their constitutional rights as well.

Recent events in the infamous California kidnapping remind me that the state needs to regulate parentage, considering the best interest of children. Why is it abhorrent to public policy to allow a trial judge to adjudicate parentage based upon the best interest of the child rather than relying exclusively on genetics? Should a sperm donor automatically be entitled to the rights of a father because of that genetic connection? Our society is rapidly moving away from a genetic based definition of parentage. Advances in assisted reproductive technology and non-traditional families have confused the simplistic notion of parentage exclusively based upon gametes.

As I argued five years ago in “Who’s Your Daddy”:  “A parent-child relationship involves so much more than shared genes. The bond of the parent and child is built on love, patience, nurturing and the time spent helping a child develop and thrive. A policy that ignores this reality in favor of a sterile scientific certainty weakens this sacred and permanent bond, and devalues our society, which is based upon these relationships.”

In light of our legislature’s review of its family laws, it should relook at this issue and redefine parentage in child-centric terms. Parentage is too important to ignore the reality that sperm donation should not confer automatic rights of parentage, when it would be detrimental to a child.

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