Changing Ways, New Technologies and the Devaluation of the Genetic Connection to Children

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answers. Even as childhood is socially constructed, so is parenthood. Thus,

the definition of ‘parent’ changes over time and across cultures. Many who

might be recognised as parents in the USA today would have passed unnoticed in colonial America or in Renaissance Europe or in ancient Rome. No

definition can suffice more than momentarily.

There are distinct yet overlapping spheres within which the definition of

parenthood may be contested and resolved. There are social parents—those

who act as ‘parents’ in the real world in which a child lives—and there are

legal parents—those the law recognises as ‘parents’. It might be ideal (and

it would surely be simpler) if being recognised as a parent in one sphere

automatically ensured recognition in the other. But this is not the case.

Sometimes the law fails to acknowledge the parenthood of a child’s social

parent and sometimes the legal parent of a child may not function as a

social parent in the child’s world.

That said, recognition as a child’s legal parent is not without great meaning in society at large. Indeed, law plays a significant role in the social construction of parenthood. Exercising rights over, and assuming obligations

for, a child are among the primary factors defining a person as a social parent. While a person may be able to do so without legal recognition, legal

recognition obviously enhances her or his ability to do so. Indeed, the mere

fact of legal recognition itself has social meaning as it provides formal confirmation of a person’s status. This is particularly true in the USA, where

law is a social institution of primary importance in the lives and ideas of

many people.

At the same time, recognition as a social parent is not completely irrelevant in the eyes of the law. In an individual case, the fact of a person’s

status as a social parent may be influential. Similarly, identification as a psychological parent can form the basis of claims to legal parentage.2 More

generally, the law is responsive to social changes and to shifts in the social

definitions of parenthood. Particularly if one considers the evolving meanings of ‘parent’ over time, the legal and social definitions are inextricably

entwined.

In this chapter, I will examine some aspects of these evolving intertwined

meanings in the USA today. Changing family structures (or perhaps more

accurately, the acknowledgement of changed structures) and emerging

technologies are influencing the definition of ‘parenthood’ in both law and

society. And even as these influences undermine an old mainstay of parental

definition—the presence of a genetic link between two individuals—they

lead to increasing emphasis on other factors. I want to examine the broad

implications of the declining importance of the genetic link in defining parenthood.

2

A psychological parent is a person who functions as a parent from a psychological viewpoint. As such it is obviously very closely linked to social parenting. Status as a psychological

parent has formed the basis for recognition of legal parentage in several states.



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It is important to note at the outset that the ongoing struggle over the

definition of parenthood is highly politicised. To be a recognised as a parent is, in some significant regards, to have a privileged status under US law.

While parents are not immune from state or third-party intervention in the

decisions they make regarding their children, they do possess a high degree

of autonomy.3 The well-entrenched doctrine of ‘family privacy’ protects

most parental decision-making from outside review. Thus, it is hardly surprising that as the US has endured various high-profile ‘culture wars’ over

the definition of family and the promotion of ‘family values’, part of the

struggle has been to define who is (and who can be) a parent.

NEW TECHNOLOGIES



Over the last three decades, advances in reproductive and genetic technologies have wrought far-reaching changes in how we think about defining

parents within the social context. These changes are as yet incompletely

reflected in the law and in society, though some emerging patterns can be

identified.

Two branches of technology are important here. First, reproductive technologies have allowed for the creation of children in ways previously

unthinkable—children born from donor sperm, donor eggs and from

embryos created outside the uterus and then implanted into the uterus of

a genetically unrelated woman. We may well stand on the threshold of even

more radical developments—cloning, perhaps, which might allow us to create children without even using genetic material from two different preexisting people. But even without consideration of the future, the changes

we have already seen on a reasonably substantial scale have raised issues

aplenty.

The second area in which technology has raised new and disruptive questions is the area of genetic mapping and testing. We are now able to identify those individuals who have in fact provided the genetic materials for

the creation of a child with a very high degree of precision. This in turn has

allowed us (and sometimes requires us) to assess the reliability of assumptions about genetic relationships we have made for many, many years.

In the following sections I will briefly discuss each of these technologies

and identify the challenges they raise for the legal system. In addition, I will

consider some of the basic responses of the legal system, although I shall

defer more detailed consideration until a subsequent section of this chapter.

1 Reproductive Technologies

The past 30 years have seen both the development of and also the proliferation of assisted reproduction technologies. Of these, alternative insemination

3



See Troxel v Granville, 530 US 57 (2000).



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(sometimes called ‘artificial insemination’) is the least technologically complex. Indeed, alternative insemination has been available for far longer than

the other technologies discussed here. However, the enhanced ability to collect and store sperm for significant periods of time, coupled with a development of a lucrative commercial market for such services has dramatically

increased the use of this technology.

If the sperm used to inseminate a woman is obtained from her male partner, and most obviously if it is obtained from her husband, who functions

as the social father of the child created, then alternative insemination poses

little challenge to our thinking about parenthood. However, alternative

insemination frequently utilises sperm obtained from a donor (most typically an anonymous donor) who is intended to have no ongoing connection to

any child resulting from the insemination. A woman using such a service

might be a single woman seeking to have and raise a child by herself; a

woman who is a part of a heterosexual partnership, where her male partner

intends to serve as a parent to the child but is himself unable to provide

sperm; or a woman who is part of a lesbian relationship, whose female

partner intends to serve as parent to the child. In any of these circumstances, the law and society must confront the appropriate role to be given

to the man who provided the genetic material that made the birth of the

child possible. Notably, in all of these instances, the donor is not intended

to function as a parent, despite the fact that the donor will have a genetic

link to any child produced by the insemination.

The legal response to the use of reproductive technology is epitomised by

the Uniform Parentage Act (UPA).4 The UPA provides that the donor is not

the parent of the child. Thus, under the UPA, the legal significance of the

genetic link is entirely erased.5

Assisted insemination would lose much of its commercial appeal if

donors were considered to be legal parents, or if they could later claim that

status. In the absence of specific statutory provisions, this would seem to be

the likely result, as the man would be seen as akin to one who impregnated a woman following a ‘one night stand’.6 Thus, the passage of a UPA-like

statute is a predicate to the emergence of the sperm bank and other related

reproductive technologies as commercial enterprises.

More technologically complex and more recent are the technologies typified

by in vitro fertilisation (IVF). IVF depends on the ability to ‘harvest’ eggs from

a woman’s ovaries. The eggs are then fertilised and the fertilised eggs are then

placed in a woman’s uterus. The woman gestates and gives birth to the child.

4

The original version of the UPA, published in 1973, has been adopted in some form by

virtually every state. A new version was published in 2000. Comments here generally relate to

the 2000 version of the UPA unless otherwise noted.

5

This does not dispose of the question of the social significance of the genetic link.

6

The UPA distinguishes between children who are conceived as the result of sexual intercourse (where the genetic linkage may be significant) and those who are not conceived as the

result of sexual intercourse (where the genetic link is of no significance).



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The egg donor and the woman who gives birth may or may not be the

same person. Further, the woman intending to raise the child may be the egg

donor, the woman who gave birth, or a third person.7 If one woman occupies all three roles, then as with the case of the sperm donor/social father,

the technology poses little challenge to our thinking. It is simply a different

path to the same end of unified social parent/genetic parent. If two or more

women are involved, however, then the law and society must determine the

status of the women involved—the egg donor, the gestator, and the intended parent.

Most obviously, the egg donor could be seen to be in a position analogous to a sperm donor.8 This might suggest that the legal analysis of the egg

donor’s status would proceed along similar lines as that for a sperm

donor—in particular, that in the absence of specific statutory language like

the UPA, she would be deemed to be a parent of the child by virtue of the

genetic link.

But in fact, the problem—in both legal and social realms—has proved to

be a more complicated one, largely because the determination of the egg

donor’s status must be considered as against the status of the woman who

gave birth to the child.9 Historically, we have always considered that the

woman who gives birth to a child is the mother of that child—at least at

the outset of the child’s life. Until the advent of these technologies, this

assumption has rested firmly on the combined claims of genetic linkage and

gestation. No other woman could claim any connection to the child that

could rival either of these claims.

Technology has broken the connection between genetics and gestation.

IVF with a donor egg presents the problem of competing claims from a

woman with a genetic link but without gestation versus a woman with gestation but no genetic link. The first woman is, of course, in a position analogous to a father of a newborn, who similarly has the genetic link but no

gestation. As it is widely assumed that the man who provides the sperm,

absent the operation of the UPA or a similar statute, is a parent (the father)

of the child, it would seem to follow that the similarly situated woman must

also be a parent (the mother) of the child. But this conclusion cannot be so

7

A woman who gives birth to a child (whether genetically related to her or not) but is not

expected to function as a mother is often referred to as a ‘surrogate’ mother.

8

The position is analogous in that in each case the donor has provided his or her genetic

material for use by another for the purpose of creating a child. The analogy fails to take into

account the difference in the process by which the sperm and the eggs are collected and the

impact of the donation on the donor. While these differences are reflected in the market price

for sperm as opposed to eggs, they are generally ignored in considering the parental status of

sperm and egg donors. The new UPA treats all donors, male and female, the same. Donors are

not parents.

9

It is theoretically possible, of course, that the resulting child might have two mothers. But

no court or legislature has reached this result. The generally inflexible (and likely genetically

based) requirement that a child has at most two parents and at most one of each sex stands in

the way of that result.



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easily reached, although it is ultimately the conclusion reached by some

influential courts,10 because it ignores the value of gestation.11

In any event, this does not complete the analysis of the problems presented by IVF. As with sperm donation, egg donation has become part of a substantial and lucrative industry in the USA. And thus, a further question is

posed: As between the egg donor and the purchaser of an egg (who may or

may not be the woman who gives birth), who can claim to be the parent to

the child? The answer reached is generally the same as that for purchased

sperm. Under the new UPA, the seller (be they egg donor or sperm donor)

can claim the genetic linkage to the child, but they do not have the right to

claim parental status as a result of that linkage.12 It may often be that the

purchaser of the egg is in fact the woman who gestates the child. If so, her

claim to parenthood lies in both her gestation and her status as the purchaser of the genetic material.

Ultimately, the decoupling of the genetic link from the definition of parenthood is a necessary condition for the creation of a market for reproductive materials. It remains widely agreed in the USA that selling children or

selling parental rights is unacceptable and therefore, if selling reproductive

materials is to be acceptable, it cannot be equated with selling parental

rights. At the same time, the extensive and highly publicised markets for

reproductive materials13 reinforces the sense that no parental right inheres

in the genetic material itself.

Thus, these new technologies, driven by market forces, have devalued

and in some instances erased the significance of the genetic link between

an adult and a child. On the horizon, there are even more challenging technologies. Cloning could lead to children who have but one source of genetic material or, viewed another way, whose genetic material can be traced

directly to their grandparents. Other experimental techniques might combine the genetic material from three people.

2 Genetic Mapping and Screening

Reproductive technologies are not the only sources of challenge in current

society. Advanced techniques now enable us to establish, with a high degree

10

The prototypical case in the United States is Johnson v Calvert, 851 P2d 776 (CA 1993)(en

banc). Johnson does not employ the reasoning discussed here, but reached the conclusion that

the egg donor had parental rights and that the gestator did not.

11

Of course, gestation is a uniquely female activity and it may be unsurprising that a maledominated legal and social tradition would devalue this uniquely female activity.

12

Where it required adoption of a statute to ensure that the sperm donor was not considered to

be the father, the same is not true for egg donors. This is likely because there was an extensive

body of existing law that a man who was genetically linked to a child was the child’s father and

hence, was responsible for the child’s support. This body of law developed in an effort to identify

appropriate men on whom to place the obligations of parenthood where there was no socially

related candidate—in an instance where a woman had a brief sexual liaison with a man, for example. There was no parallel pre-existing body of law for women, and hence no need for a statute to

distinguish the egg donor from the more ordinary case of socially unrelated genetic parenthood.

13

Major newspapers and magazines frequently contain ads soliciting either buyers or sellers.



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of probability if not certainty, which individuals provided the genetic

material that created a child. Not only is this technologically feasible, it has

become increasingly common and visible. Several popular television talk

shows have recently entertained viewers with the spectacle of men being

confronted with the results of DNA testing of those they believe to be ‘their’

children.

These developments have undermined the significance of the genetic link

in a distinct way. We are now confronted with the reality of the disjunction

between social and/or legal parenting and the genetic tie. Where once we

would have had no reason to confront this discontinuity, happy in the belief

that the social and legal parent also possessed the genetic link to the child,

now we must come to terms with it.14 This then poses a question of whether

our incorrect assumption about the genetic tie means that our assumptions,

be they legal or social, about who are the child’s parents are also incorrect.

Of course, the idea that people might parent a child to whom they have

no genetic link is hardly a new one. Adoption and fostering are ancient

practices. But in the USA today, adoptive parents and foster parents must

follow specific steps in order to gain legal recognition of their parenthood.

They stand in contrast to ‘natural’ parents who presumably derive their status not from the operation of the law but from nature itself. The defining

characteristic for natural parents is their genetic connection to their children. And thus, to discover that perceived ‘natural parents’ have in fact no

genetic tie to their children is disruptive. Do they cease to be parents in the

eyes of the law and/or in the eyes of society? This is the question thrust

upon us by developing capacities of genetic testing. At a minimum, it forces

us to re-evaluate exactly how important the genetic link really is.15

The same capacity to read our genes may also change the significance of

the genetic link in another way. Once, knowing one’s genetic origins was

important for, among other reasons, the ability it gave one to construct a

medical history. We could make certain inferences about the potential

health risks a child faced from information about the health of their genetic ancestors. Thus, if three closely related relatives had breast cancer at an

early age, the likelihood that a child might be at a greater risk of early onset

of breast cancer increased.

But soon, technology will allow us directly to read our own genetic codes.

Instead of constructing probabilities about our own genetic proclivities

14



This is most typically a problem with regard to fatherhood. But it is not exclusively so.

There are instances in which babies have been switched, whether inadvertently or otherwise,

in the hospital and each has gone home with a set of parents not genetically related to them.

When genetic testing reveals to us the genetic reality we must confront the same disjunction.

15

There are in fact a small number of legal cases involving switched infants. In general, the

legal definition of parenthood has followed the genetic link. But courts have not reached this

conclusion without some difficulty. And in at least one case, the newly ordained legal parents

agreed to leave the child with her social parents, suggesting the limited importance of the

genetic tie. See Justin Blum and Michael Shaw, ‘Of One Mind on Two Children’ Washington

Post, 5 August 1993, B1.



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from the histories of our ancestors, we will be able directly to examine our

genes for risk factors. Thus, at least one fairly modern and pragmatic reason for valuing the genetic link (or at least information about the genetic link) may dissolve.

CHANGING WAYS



At the same time as technologies have emerged and evolved, social struggles

over the meaning of family have continued. The myth of the nuclear family may indeed have always been a myth, but its status as such has become

increasingly clear over the last 30 years. Rising divorce and subsequent remarriage rates have vastly increased the number of ‘blended families’. The

incidence of children born outside of marriage is also high. In the last 20

years there has been a significant surge in the number of lesbian and gay

families, which may be one-parent or two-parent families. While lesbian

and gay people have undoubtedly always raised children (typically children

born into an earlier heterosexual relationship) there are now growing

numbers of planned lesbian and gay families—often made possible through

some of the new technology discussed above. These families have also

gained heightened visibility, in part as a result of the culture wars over their

existence and legal recognition. Adoption, too, has become more visible

than it was as the stigma of adoption has diminished.

For all of these reasons, there are increasingly large and visible numbers

of people who act as though they were parents, who are socially recognised

as parents, and who have sought and perhaps even won legal recognition

as parents, but who do not have a genetic link to their children. They may

be step-parents or non-biological mothers or adoptive parents. With

increasing frequency they are appearing on soccer fields and at PTA meetings and at doctor’s offices as well as on television sitcoms, magazine covers and best seller lists.

Legal recognition has lagged significantly behind social recognition.

While there is no shortage of instances where the law has refused to recognise these parents, it is increasingly the case that the failure of the law to

recognise them has brought the law under criticism. Several years ago, for

example, two state courts were confronted with remarkably similar cases.16

In each case a child had been placed with a planned adoptive family shortly after its birth. In both cases the woman who had given birth to the child

relinquished her rights to parenthood. And then in both cases, several years

after placement, the man who was the source of the genetic material (in

each case the original mother’s then-boyfriend) stepped forward to claim

parental rights, in conjunction with the original mother’s reassertion of her

16



In re Baby Girl Clausen, 502 NW2d 649 (Mich 1993); In re Kirchner, 649 NE2d 324

(Ill 1996).



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own claim. In neither case had the man’s genetically based parental rights

been properly terminated.

In both cases, the courts observed that the intended adoptive parents had

functioned in every way as the parents of the child for the majority of each

child’s life. They were clearly the social parents of the child. But in neither

case could the court find a way to deny the overwhelming significance of

the new male claimants’ genetic link to the child. And so in both, the courts

declared the men to be legal fathers, entitled to assert rights to custody as

against the prospective adoptive parents (the social parents) of the child.

And in both instances, custody of the child was indeed transferred.

These cases were closely followed in the local and national media and, as

the time for the change in custody drew near and as avenues for legal appeal

were exhausted, the press coverage mounted. The coverage vastly favoured

leaving the children with the families they had known and minimised the

significance of the genetic tie that was the basis for the legal result. Though

in neither case was there public outcry alter the result, both states enacted

altered statutes in their aftermath, and the new statutes reflected increased

recognition of social parents and decreased status for those with genetic

connections to children who have not functioned as social parents.

Similarly, a series of cases have focused on instances in which two lesbians raising a child fall into conflict. One invokes legal status as a parent—

whether because she is genetically related to and gave birth to the child or

because she initially adopted the child. The other invokes her social status

as a parent, producing all the social markers of parenthood.

The results here have been mixed. Some courts have recognised the nonbiologically related woman as a legal mother, based on a variety of legal theories including de facto parenthood and estoppel. In these instances, the

importance of the genetic link is diminished as the non-genetically linked

woman is placed on an equal footing by virtue of her performance of the

social role. Other courts have denied the social mother recognition, relying

on the absence of the genetic link. While these results themselves bolster the

importance of the genetic link, they have generally been met by criticism,

demonstrating the social willingness to depart from the necessity of a genetic component to parenthood. Recent model legislation provides recognition and protection for people who have performed this role.17

THE DIMINISHING VALUE OF THE GENETIC LINK



1 Note on Terminology

All children born throughout history could, at least in theory, trace their

genetic material to two people—one male and one female. In general,

17

See Principles of the Law of Family Dissolution: Analysis and Recommendations, ch 2

(American Law Institute, 2002).



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through most of our history, we might assume these people are the parents—father and mother, respectively—of the child. It has always been clear

that there is not a perfect overlap between the people who might be identified as the sources of the genetic material and the people who actually functioned as the child’s parents. Adoption and fostering of children are well

known throughout the ancient myths and legends of many people. Similarly, the husband who raises a child born to his wife but not genetically

related to him is a stock figure of fiction and drama.

As theorists have refined their understanding of the construction of parenthood, the term ‘parent’ has been paired with modifiers to explicate

which sort of parenthood was referred to—so, for example ‘legal parents’

versus ‘social parents’, and ‘natural parents’ versus ‘adoptive parents’. In a

similar vein, as recent scholarship has struggled with the issues discussed

above, it has become common to refer to ‘genetic parents’. Genetic parents

are individuals in the category who contribute genetic material necessary

for the creation of a child.

The term ‘genetic parent’ is not without utility. It is difficult to discuss

the meaning of the genetic tie between those who create children and the

children they create without a simple term to refer to the people involved.

Indeed, my unwillingness to employ the term thus far in the chapter has

made me particularly aware of the term’s utility in that regard. But ‘genetic parent’ can also be obscuring. It prematurely concludes that the person

concerned is in fact a parent of some sort.

This inherent presumption confuses analysis when the very question

posed is whether the person in question is indeed a parent (in either the

social or the legal sense of the word); for it seems impossible to respond that

a genetic parent is not a parent. The discourse in recent US case law and

scholarship is needlessly complicated by this confusion.

While a term to designate those who provide the genetic material is necessary, ‘genetic parent’ is not the most useful one. As the technological and

cultural changes described here have multiplied, it is important to settle on

a new formulation. The very need for such a new formulation reveals the

diminished status of the genetic link. The presence of such a link is simply

no longer sufficient in all contexts to ensure that one is a parent.

For the moment, I shall use ‘progenitors’. The idea that the progenitors

of a child may in fact not be those who we would recognise as a child’s

parents (or conversely, that the parents of a child might not be her or his

progenitors) is hardly a new one. But the use of the term (or a similarly nonconclusive one) may assist in clarifying the questions presented.

2 The Diminishing Value of the Genetic Link

I have already discussed a number of contexts in which it is clear that status as progenitor does not ensure status as a parent. Two more recent examples warrant brief discussion.



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In In re Nicholas H,18 the Supreme Court of California—a court viewed

as generally liberal—conferred parenthood on a man who was not (and had

always known he was not) the progenitor of his child. Despite the lack of

relationship and his knowledge of it, he had served as the child’s social

parent for most of the child’s six years. In the opinion, which was widely

publicised, the court awarded the man custody of the child over the objections of the child’s mother. It found that the man’s admission that he was

not the child’s biological father did not rebut the presumption of fatherhood that arose from his social relationship with the child.19 In seeking custody, the child’s mother advanced the progenitor of the child (who had

never served as the social parent of the child) as an alternative candidate for

parenthood. After an extensive review of case law that had developed over

a number of years, the court concluded that status as a legal parent did not

depend on genetic linkage.

A second recent case creates an interesting comparison. In the Interest

of TSS20 was decided by the Texas Supreme Court. (This court might be

viewed as the polar opposite of the California Supreme Court.) A man who

had served as the social father of a child for 10 years learned that he was

not the progenitor of the child. He sought an order terminating his parental relationship with the child. Consistent with the result in California, the

Texas court found him to be the father of the child despite the absence of

any genetic linkage. The court, quoting with approval, noted that

‘[a]lthough DNA testing may provide a bright line for determining the biological relationship between a man and a child, it does not and cannot

define the human relationship between a father and child’.21

This is not to say that the genetic link retains no force in the law or in

our lives. Obviously it does.22 In many instances, courts continue to recognise parenthood based in whole or in part on genetic connection to the

child. On a social level, adoptive children frequently search out their progenitors. And a significant part of the demand for the technology described above is fuelled by people who want to have children with whom they

will share a genetic connection.23 But the overpowering importance of the

genetic link has begun to diminish significantly and will likely continue to

do so.

18



120 Cal Rep 2d 146 (2002).

This is an instance in which the use of the term ‘biological father’ can hardly advance the

clarity of the analysis.

20

61 SW3d 481 (2002).

21

The California and Texas cases do arise in distinctly different contexts. In the California

case a man wished to be father to a child who would otherwise, in the view of the court, have

no suitable home. Thus the court was undoubtedly predisposed to find him the father. In the

Texas case a man sought to terminate his obligation to support a child where there was no

other available candidate, giving the court reason to deny his request.

22

The father in the Texas case above declared that he would be entirely unable to visit with

or care for his child, having learned that he did not share a genetic link with the child.

23

See eg In re Baby M 537 A 2d 1227 (NJ 1988).

19



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LINGERING QUESTIONS, LIMITLESS POSSIBILITIES



As the importance of the genetic link to defining parenthood diminishes and

as the definition of parenthood continues to evolve, new factors must come

to the fore. If genetic linkage is not conclusive in defining parenthood, then

some other criteria must fill that role. One might approach this as a theoretical question, asking what qualifications we should seek in defining parenthood. To date, courts have generally employed one of two approaches:

one focused on the functions performed by the parties and the other focused

on the intention of the parties.

Functional analyses, turning on who actually played the social role of a

parent, were critical in the cases from Texas and California discussed above

as well as in those involving intra-lesbian disputes in which the non-progenitor attained legal recognition. Focusing on function ensures a high degree

of correspondence between those who are social parents and those who will

gain legal recognition.

The appeal of a functional definition of parenthood is apparent. Although it may be far more painstaking for a court to determine whether a

person functioned as a parent than it would be to determine whether they

are genetically related to a child, it is also more obviously allied to an

apparent concern for the well-being of the child. Its appeal lies in large part

in the promise it offers that those recognised by law will in fact be those

who have substantial relationships to the children concerned. In other

words, those who the law will recognise as parents are those who really are

the parents anyway.

These very strengths make a functional analysis intrusive, time-consuming and expensive. In addition, there is little consensus about what it means

to act like a parent or to play a parental role. Thus, even when all the facts

can be determined, the legal meaning of the facts remains in doubt.

Litigants confronted with a functional test will be subject to discretionary

decision making by judges, who can never be free of their own bias. Thus,

the results of a function test will be uncertain and skewed by bias. By contrast, focusing on genetics gave judges much less discretion.

Though not for these reasons, a functional analysis of who are a child’s

parents has not been commonly employed in cases arising out of new

reproductive technologies. In these cases, the more common alternative

to a genetic approach has been to rely on the intention of the parties.

Several factors contribute to this result. Some of the new technology cases

(notably the disputes over frozen pre-embryos) arise before anyone has

had an opportunity to function as a parent.24 Many of the other cases concern disputes that arise during the pregnancy or soon after the birth of

the child.

24

Indeed, these cases arise before there is a child to parent. Pre-embryos are generally frozen

when there are approximately eight cells.