Historically, in child custody disputes involving same-sex couples who conceived their children through assisted reproductive technology, the law only recognized the relationship between the child and the member of the same-sex couple who was the child’s genetic parent. Consequently, non-genetic parents in these situations were frequently denied standing to seek custody or visitation following the dissolution of their relationship with the child’s genetic parent. Due to recent legal advancements, however, it is becoming far more common for both members of a same-sex couple to be legally recognized as the parents of a child conceived through assisted reproductive technology. Unfortunately, despite the increasing ability of non-genetic parents to obtain the status of legal parent, discrimination against non-genetic parents is likely to continue, just at a different stage in the child custody process. Discrimination against non-genetic parents in dissolving same-sex relationships will now likely begin to surface at the stage when judges apply the best interests of the child standard, which governs custody disputes between two legal parents. Genetic connections have traditionally played a primary role in determining parental rights, and case after case involving dissolving same-sex relationships has demonstrated that, in the heat of legal proceedings, genetic parents will use their genetic connections to the child to support their arguments for superior parental rights. Moreover, due to the long history linking genetic connections to parental rights and the significant discretion judges enjoy under the best interests of the child standard, there is a high likelihood that genetic connections will play a role in many judges’ custody decisions. This Article argues that allowing judges to apply genetics-based preferences in custody disputes be-tween same-sex legal parents who conceived their children through assisted reproductive technology would be ineffective and contrary to the furtherance of children’s best interests and proposes legal reform to prohibit such discrimination.
Jessica Feinberg, Consideration of Genetic Connections in Child Custody Disputes Between Same-Sex Parents: Fair or Foul?, 81 Mo. L. Rev. (2016)