Intentional Parenthood's Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy

INTRODUCTIONWhile biology, birth, and the marital presumption are still the traditional bases on which legal parentage is established, intent is playing an everincreasing role in parentage determinations. Most significantly, intent has been used as a proxy for biology to establish legal parentage.1 Conversely, intent has also been critical in recognizing the right of a party not to procreate or have the responsibilities that flow therefrom. The increased recognition of intent within the parentage law puzzle creates a greater contrast with the use of biology alone to establish paternity, especially those cases initiated by a state's IV-D agency (the agency charged with establishing paternity judgments and child support orders).2The relationship between intent, conception, and procreation has created a gulf of inconsistency between how legal parentage is determined in the assisted reproductive technologies (ART) context compared with the traditional paternity establishment context. In the paternity establishment context, if an unmarried man and woman have sex and the woman becomes pregnant, the man will likely be adjudicated the child's legal father regardless if he had any intent to conceive or procreate a child.3 By contrast, a man who has actively participated in the process of conception via in vitro fertilization has routinely been permitted to change his mind regarding subsequent use of the embryos in an attempt to protect his procreative liberty.4In this Essay, I challenge why a man who has no intent or desire to be a father should be adjudicated a legal father-with subsequent legal responsibilities-and whether courts and legislatures are applying procreative autonomy equally to all constituents. Arguably, moral disdain for poor adults who conceive out of wedlock has resulted in forced fatherhood for primarily low-income individuals, whereas wealthier men who use assisted reproductive technologies have greater protection of their procreative freedom. Men who engage in non-marital sex that results in a child will likely be required to pay a "tax"-child support-while a man who engages in non-coital procreative activities is often alleviated of such a burden.Although procreation through intercourse is necessarily different than procreation achieved using ART, I question the difference in legal treatment of the persons involved. Furthermore, this Essay illustrates that as the laws of parentage broaden, we call into question traditional parentage doctrines. Notably, family law permits deviation from the twoparent model for wealthier individuals who choose parenthood by choice through ART but imposes unwanted parenthood on many men in the interest of the public fisc. Applying the principles of procreative autonomy equally, it is hard to reconcile parentage by intention and parenthood by imposition.As Professor John Robertson wrote in Children of Choice, "At the most general level, procreative liberty is the freedom either to have children or to avoid having them."5 Procreative liberty is often discussed as encompassing two parts: the freedom to reproduce and the freedom to avoid reproduction.6 Most of the Supreme Court's procreative liberty jurisprudence has focused on the right to avoid procreation, but in Skinner v. Oklahoma,7 the Court explicitly affirmed the fundamental right to procreate. Specifically, the Court held unconstitutional a state statute that proscribed compulsory sterilization for a habitual criminal.8 The Court reasoned, "We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race . . . . Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty."9The Court has focused greater attention on the right to avoid procreation. Traditionally, avoiding procreation either meant abstaining from sex, using contraception to prevent conception, or abortion. …