Evaporating Natural Parent Childcare Liberties Under New Parentage Laws

This Article explores the evaporating Due Process interests of natural childcare parents who are not unfit and who do not knowingly consent to diminished childcare liberties when the state recognizes new nonadoptive and nonbiological parents. Childcare liberty losses need not involve neglect or comparable bad acts rendering a parent unfit. They need not involve consent, actual or implied, by an adversely affected parent. On the new forms of nonadoptive and nonbiological childcare parents, the most recent UPAs and their state counterparts are illustrative.

They recognize parentage in an individual who resides with and holds out a child as the individual’s own “for the first two years of the life of the child.” That individual can effectively replace a fit, existing, and nonconsenting parent by judicial decree. Comparably, the 2017 UPA recognizes that a de facto parent, without adoptive or biological ties, can then replace an existing fit parent. Further, nonadoptive and nonbiological parents can also effectively displace natural parents via new forms of voluntary parentage acknowledgments. This Article also explores Due Process liberty issues arising with the new forms of parentage under the United States Supreme Court decision in Lehr v. Robertson.

There, as noted, the Court recognized that a “natural father [has] an opportunity that no other male possesses to develop a relationship with his offspring.” This opportunity interest in childcare parentage has been extended to at least some “natural” mothers (i.e., egg donors who are not gestating parents). The new parentage forms can negate the parental opportunity liberty interests of some expecting natural parents, including sperm or egg providers. Upon reviewing the new parenthood forms and their current federal and state law limits, this Article concludes with reflections on the need for greater legal protections for existing and expecting natural childcare parents when new forms of nonadoptive and nonbiological childcare parenthood are undertaken. Further, this Article demonstrates how to better safeguard the childcare liberties of natural parents.