It Takes Three, Baby: The Lack of Standard, Legal Definitions of “Best Interest of the Child” and the Right to Contract for Lesbian Potential Parents

Abstract

In order to consider the plausibility of contracts regarding Artificial Insemination, or Al, this article will first review various options and legal ramifications for choices regarding Al and then focus on the effect of inconsistent application of the Uniform Parentage Act, or UPA, among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will consider how the current standard of "best interest of the child" is being used in the absence of the UPA standards and, in some respects, to prevent model UPA legislation from being used to grant sole custody to a lesbian birth mother and to prevent the termination of parentage rights of sperm donors. Of particular interest in this article is discrimination against lesbians seeking legal assistance in the enforcement of contracts to formalize parenting rights and responsibilities for children resulting from artificial insemination. This article will then suggest alternatives for this affected group in an attempt to clarify the issues and mitigate some of the impact of the lack of legislation, inconsistent and incomplete laws and, in some cases, outright prejudicial rulings.

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