THE CASE FOR THE GENETIC PARENT: STANLEY, QUILLION, CABAN, LEHR, AND MICHAEL H. REVISITED

Anthony Miller, Pepperdine University School of Law

Abstract

Does a genetic parent have a constitutional right to exercise the fundamental rights which the United States Constitution affords parents? If a lesbian couple has a child with one woman donating the ova, which is artificially inseminated and implanted in the other woman, is the donor woman a mother under the Constitution? If sometime in the future a heterosexual couple has a child through the process if in vitro fertilization and through the use of an artificial womb, would the woman and man be the child’s mother and father for constitutional purposes? While the United States Supreme Court has recognized that parents have many fundamental rights regarding their relationship with their children, the Court has never fully explored the issue of who qualifies as a child’s parent for constitutional purposes. The Court has explored this subject only in regard to the rights of unwed fathers. Four cases, Stanley v. Illinois, Quilloin v. Woolcott, Caban v. Mohamed, and Lehr v. Robertson established that a genetic father who has participated in his child’s upbringing both psychologically and financially, even though he was not married to the child’s mother, should be afforded parental rights. This rule, however, was rejected by the plurality opinion of Michael H. v. Gerald D. with the result that the four unwed father cases are often thought to be overruled. Not only are these cases still viable, but they also have greater applicability today simply because modern reproductive technology has created situations where they apply not only to men who are not unwed fathers but also to many women who have children using new technology. The rule of Stanley v. Illinois, Quilloin v. Woolcott, Caban v. Mohamed, and Lehr v. Robertson should be revisited and applied to all genetic parents who have participated in their child’s life, especially to women who are genetic parents but who have not given birth to their genetic children.