A FAMILY IS WHAT YOU MAKE IT?

LEGAL RECOGNITION AND

REGULATION OF MULTIPLE PARENTS

HAIM ABRAHAM

I.Introduction ................................ ...... 406

II.Defming and Allocating Parental Statuses ................ 409
A. Parentage, Parenthood, and Parental Responsibilities....409
B. Five Approaches to Parental Status Allocation..............410
III.Who Could Be Multiparents? ................... ..... 416
A. Assisted Reproductive Technology Families ................. 417
B. Co-Parenting Families........... .............. 418
C. Stepfamilies....................... ....... 418
D. Open Adoption Families ...................... 419
E. Kinship Carer Families............... ........ 419
IV.Why Should Multiparents Be Recognized?.....................420
A. Administrative Strain?................................420
. . . .. . . 421
B. Protecting the "Traditional" Family? .......
9 .. . . . . . . . . . . . . . .. . . . 423
C. The Child's Best Interests
V.The Spectrum of Recognition and Regulation: From Social Label to
Legal Status ........................... ....... 425
VI.Recognition vs. Regulation: Suggestion for Normative Guidelines
................................. ..... 434
VII.Conclusion ............................................. 443

405

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406 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

ABSTRACT
Multiparental family structures, in which there are more than two
parents, are becoming increasingly common. Thus, they defy the social
and legal conception of the nuclear family. Yet, despite the growing
number of multiparentalfamilies, their legal status in mostjurisdictions
is not recognized, leaving various issues unaddressed and potentially
risking the children's best interests. This paper examines how the
legislatures and courts of California, Canada, and the UK recognize
and regulate multiparentalfamilies. It shows that the treatment of
multiparentalfamilies variesfrom non-recognitionof any status, through
regulation of the multiparental family, to the recognition of the
multiparentalfamily basedon parentalagreements. The paper identifies
five distinct categories of multiparentalfamily structures, and suggests
that the allocation ofparentalstatus should be made possible to each of
these structures. To do so, it is suggested that the allocationofparental
status will not be determined by traditional.doctrines. Rather, it should
be guided by both the intentions of the parties to the parentalagreement,
and the child's best interests.

I. INTRODUCTION
For many years, the "traditional" family structure, namely a heterosexual,
monogamous couple and their biological children, has not been the only
family structure in Western societies. Rising divorce rates,' stepfamilies,
cohabitation, co-parenting, assisted reproductive technologies, LGBT
families, and open adoptions have all contributed to this development. Due
to this departure from a single model of family structure, it is not surprising
that the definition of the nuclear family has been a subject of debate in recent
2
years.

* Vanier Scholar; SJD Candidate, University of Toronto; LL.M. (Cantab); LL.B. I want
to thank Omri Ben-Zvi, Michael Birnhack, Yishai Blank, Mercedes Cavallo, Rory Gillis,
Benjamin Graff, Dafna Hacker, Nadia Lambek, Tal Morse, Arthur Ripstein, Eden Sarid,
Jens Scherpe, Philip Stefanovski, and Hedi Viterbo, for their critiques and suggestions;
The participants of the 2016 Critical Legal Conference, and the 4th annual Tel Aviv
University Law in a Changing Society Workshop for their helpful comments; and the
staff of the American University Journal of Gender, Social Policy & the Law for their
very helpful editing on this article.
1. Divorce Rates Data, 1858 to Now: How HasIt Changed?, THE GUARDIAN, (Feb.
6, 2014), www.theguardian.com/news/datablog/2010/jan/28/divorce-rates-marriage-
ons; Christopher Ingraham, Divorce is Actually on the Rise, and It's the Baby Boomer's
Fault, WASH. POsT (Mar. 27, 2014), www.washingtonpost.com/blogs/wonkblog/wp/
2014/03/27/divorce-is-actually-on-the-rise-and-its-the-baby-boomers-fault.
2. See generally Sally Bould, Familial Caretaking:A Middle-Range Definition of

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2017] A FAMILY IS WHAT YOU MAKE IT? 407

Changes to what society perceives as a family have impacted how "parent"

is defined. New lifestyles and social practices have not only led to the
establishment of various family structures but also prompted multiple adults
to simultaneously seek the much-coveted label of "parents." Although
legislatures and courts have been open to different approaches to the
definition of parenthood, so far they have been somewhat reluctant to forego
the notion that a child can have two legal parents at most at any given time.
As will be established below, this lack of recognition leaves the multiparental
families in a socially and legally vulnerable position. Its members do not
enjoy the same certainty about their rights and obligations "traditional"
families do. Consequently, the child's best interests are endangered.
However, this "rule of two" 4 has been challenged recently to various
degrees in courts and amongst legislatures. Similarly, several legal scholars
have advocated for the recognition of multiparental families. They
addressed the questions of whether multiparents should be awarded legal
status, and the form in which these family structures should be recognized.'
Nonetheless, they have not taken into account the various types of
multiparental families. In some instances, the structure chosen by the
multiparents is egalitarian, meaning that they all perceive themselves as
having the same status, rights, and obligations. In other cases, the model is
hierarchal, with some individuals holding full parental status, rights, and
obligations, while others have a more limited standing. By omitting from
their consideration both egalitarian and hierarchal structures, even those who
advocated for recognition of multiparents did not offer a solution that
captures this socio-legal phenomenon in its entirety.

Family in the Context ofSocial Policy, 14 J. FAM. ISSUES 133, 134 (1993); Stuart Bridge,
Marriage and Divorce: The Regulation of Intimacy, FAMILY LAW: ISSUES, DEBATES,
POLICY, (Johnathan Herring ed., 2001); William C. Duncan, Don't Ever Take a Fence
Down: The Functional Definition of Family - DisplacingMarriage in Family Law, 3
J.L. & FAM. STUD. 57, 57-58 (2001); Mary Patricia Treuthart, Adopting a More Realistic
Definition of "Family" 26 GoNz. L. REv. 91, 92 (1991).
3. See infra p. 18-19 and note 73.
4. See Elizabeth Marquardt, When 3 Really Is a Crowd, N.Y. TIMES, (July 6, 2007),
www.nytimes.com/2007/07/16/opinion/16marquardt.html?_r-0.
5. See generally Katharine Baker, Bionormativity and the Construction of
Parenthood, 42 GA. L. REv. 649, 654 (2008) [hereinafter Bionormativity]; Katharine
Bartlett, Rethinking Parenthoodas an Exclusive Status: The Needfor Legal Alternatives
When the Premiseofthe NuclearFamilyHas Failed, 70 VA. L. REv. 879, 880-882 (1984)
[hereinafter Rethinking Parenthood];Melanie Jacobs, Why Just Two? Disaggregating
TraditionalParentalRights and Responsibilitiesto Recognize Multiple Parents, 9 J.L.
& FAM. STUD. 309 (2007) [hereinafter Why Just Two?].

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408 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

This paper provides a novel comprehensive categorization of the various

multiparental family structures, and examines how legislatures and courts in
California, British Columbia, and England recognize and regulate
multiparental families.' The analysis section shows that the states' treatment
varies from non-recognition of any status, through regulation of the
multiparental family (i.e. determining who is a parent, what constitutes
parenthood, and what is the scope of each parent's rights and
responsibilities), to their recognition by giving legal force to parental
agreements. Moreover, the paper indicates that even in those jurisdictions
that do allocate parental status to multiparents, not all multiparental
structures are recognized. Each jurisdiction awards status on either an
egalitarian or hierarchal model, but does not cater for both.
Drawing on these findings, the paper suggests that the method of
allocation of parental status should be flexible enough to cater for all five
multiparental structures. Therefore, the traditional doctrines of allocation of
parental status should be abandoned. Instead, the focus should be on the
intentions of the parties to a parental agreement, as well as the child's best
interests. Parental agreements of multiparental families should be
recognized by the state as long as the family members are in agreement as to
each-other's parental status, leaving the power to form a family and
determine rights and responsibilities in the hands of individuals. However,
if they are in disagreement, then the family should be regulatedby the state,
placing more emphasis on the child's best interests.
This paper proceeds as follows. First, a discussion of the three different
parental statuses, and how they are allocated, frames the basic concepts that
are relevant to the paper. Second, the various ways in which a child can have
multiparents are illustrated. Third, the question of why multiparents should
be recognized is addressed. Fourth, an analysis of the instances in which
legislatures and courts have recognized multiparents to various degrees,
focusing mainly on British Columbia, California, and England is undertaken.
Lastly, a new approach to the recognition and regulation of multiparents is
suggested, according to which allocation of parental status should be guided
by the intended-parents' intentions and the child's best interests.

6. These jurisdictions were chosen as they all allocate parental status to

multiparents, but to different extents. In England, only parental responsibilities could be
allocated to more than two individuals, based on the intentions of the holders of
parenthood status. In contrast, both in California and in British Columbia can the
parenthood status be awarded to more than two individuals. Yet, in California this
process is regulated by the courts, whereas in British Columbia it is completely subject
to the intentions of the multiparents.

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2017] A FAMILY IS WHAT YOU MAKE IT? 409

II. DEFINING AND ALLOCATING PARENTAL STATUSES

Traditionally courts and legislators maintained a strict division between
those who can be legal parents and those who cannot. By distinguishing
between parents and strangers, the former were given exclusive status.'
Moreover, this distinction has traditionally been instigated by, and
consequently led to the replication of, the rule of two, which prescribes that
only two individuals would have the legal status of parents at a given
moment.
Two matters require our attention in order to proceed with the main thesis
of this paper. First, we must distinguish between the three legal parental
statuses - 'parentage', 'parenthood', and 'parental responsibilities' - as these
terms are crucial to the understanding of the core issues. Second, we need
to examine the five main approaches for allocation of legal parental status:
marital presumption, psychological approach, functional approach,
genetic/biological approaches, and intention-based approach.

A. Parentage, Parenthood,and ParentalResponsibilities

As for the three parental statuses, it will be useful to turn to Andrew
Bainham's definitions. 9 He defines 'parentage' as the socially perceived
genetic link between the child and her parents. It is the indicator of the
child's genetic origins, and as such it is set at the time of conception and is
constant from that point on.10 Conversely, 'parenthood' is the continuing

7. Troxel v. Granville, 530 U.S. 57, 73 (2000); X, Y & Z v. United Kingdom, 3

Eur. Ct. H.R. 341, 355 (1997) (De Meyer, J.) ("It is self-evident that a person who is
manifestly not the father of a child has no right to be recognized as her father");
Rethinking Parenthood, supra note 5, at 879.
8. See Michael H. v Gerald D., 491 U.S. 110, 118 (1989); In re M.C., 123 Cal. Rptr.
3d 856, 861, 877 (Cal. Ct. App. 2011); K.M. v. E.G., 117 P.3d 673, 681 (Cal. 2005);
Deborah Wald, The Parentage Puzzle: The Interplay Between Genetics, Procreative
Intent, and ParentalConduct in Determining Legal Parentage, 15 AM. U. J. GENDER
Soc. POL'Y & L. 379, 381 (2007); Katharine K. Baker, Marriageand Parenthoodas
Status and Rights: The Growing, Problematic and Possibly Constitutional Trend to
DisaggregateFamily Statusfrom Family Rights, 71 OHIO ST. L.J. 127, 129 (2010); Sacha
M. Coupet, "Ain't I a Parent?": Exclusion of Kinship Caregiversfrom the Debate over
Expansion ofParenthood, 34 N.Y.U. REV. L. & SOC. CHANGE, 595, 595 (2010); Ann E.
Kinsey, A Modern King Solomon's Dilemma: Why State Legislatures Should Give
Courts the Discretion To Find that a Child Has More than Two Legal Parents, 51 SAN
DIEGo L. REV. 295, 330 (2014).
9. Andrew Bainham, Parentage,Parenthoodand ParentalResponsibility: Subtle,
Elusive Yet Important Distinctions, in WHAT IS A PARENT? A Soclo-LEGAL ANALYSIS
28-29 (1999).
10. See id.

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410 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

relationship between a child and her social parents." Therefore, parenthood

is a flexible definition; at one point in time a child can have X as a parent,
and at another point in time Y might be the parent. Lastly, Bainham defines
'parentalresponsibilities'as "all the rights, duties, powers, responsibilities
and authority, which by law a parent of a child has in relation to the child
and his property," 12 which can be shared between an unlimited number of
individuals, each having a degree of responsibility. 13
Therefore, it can be concluded that the definition of 'parents' is dependent
upon the purpose of the investigation. If it is conferring legal obligations,
then parental responsibilities are sufficient. However, if the legal status or
genetic link go to the core of the investigation, then the ideas of parenthood
and parentage should guide us. The character of these definitions
necessitates distinction between the two: parentage is factual; parental
responsibilities are legal; and parenthood is both social and legal.

B. Five Approaches to ParentalStatus Allocation

In practice, parental status is conferred by relying upon the marital
presumption, psychological approach, functional approach,
genetic/biological approaches, or intention-based approach. 14 These
approaches are not necessarily applied in a way that maintains the theoretical
rationales of the three parental statuses. Nor are they necessarily mutually
exclusive. However, as I will show below, the intention-based approach
most aptly captures the nature of the relationships in multiparental families.is
Furthermore, parental intention has a role in most of the approaches for
allocation of parental status.
Take the marital presumption for example. This presumption means that
a child born in wedlock will be considered the husband's child unless

11. See id. at 44.

12. Children Act 1989, c. 41, § 3(1) (UK); cf Children Act 1995, c. 36, § 1-2 (Scot.);
Family Law Act, S.B.C. 2011, c. 25 art. 41 (Can.); SONIA HARRIS-SHORT & JOANNA
MILES, FAMILY LAW: TEXT, CASES, AND MATERIALS 660 (2nd ed., 2011); ELAINE
SUTHERLAND, J.K. MASON, & ALEXANDER MCCALL SMITH, Is Anything Left ofParental
Rights?, in FAMILY RIGHTS, FAMILY LAW AND MEDICAL ETHICS (1990); Annette Ruth
Appell, Virtual Mothers and the Meaning ofParenthood,34 U. MICH. J.L. REFORM 683,
697 (2001); Rethinking Parenthood,supra note 5, at 880-81; Coupet, supra note 8, at
614.
13. Bainham, supranote 9, at 44.
14. Wald, supranote 8, at 381.
15. See Melanie B. Jacobs, Parental Parity: Intentional Parenthood's Promise,
64(3) BUFF. L. REv. 465, 485-95 (2016) (discussing additional advantages of the intent-
based approach).

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2017] A FAMILY IS WHAT YOU MAKE IT? 411

contradictory evidence exists. 16 This is true even if the child was born only
two weeks after the couple married.' 7 The existence of this presumption is
rather unsurprising, since for many years family life could only exist within
the framework of marriage,"s and other methods of determining parentage
(like DNA testing) were not available. By constructing this presumption, the
law was able to protect the family from instability, and more importantly
prevent the unwarranted status of "illegitimate children."1 9 It is also the
easier administrative choice, as it is a fairly simple bright-line rule.20
Examining the marital presumption vis-A-vis the institution of marriage,
as it was understood many centuries ago, suggests that this presumption
made social and legal sense. While initially marriage was perceived as a
private matter of factual character (i.e., in order to be married a couple did
not have to undergo a ceremony, but rather they needed to live together as
man and wife), over the years the Church and Canon Law succeeded in
assimilating their notions of marriage into social practice.21 Marriage
became a public matter, regulated by the Church and the State, with legal
consequences. It also began being perceived as a civil contract, 22 and in the
heart of the agreement to marry was the purpose of having and raising
children.23 In other words, by agreeing to enter into marriage, the husband
and wife agreed to support and raise the children born from that marriage.
The marital presumption was the means of enforcing this agreement,

16. In re Findlay, 170 N.E. 471, 472 (N.Y. 1930); RCA 13/66 Plonit (minor) v.
Ploni, PD 20(2) 512, 515-16 (1966) (Isr.); Mary Louise Fellows, The Law ofLegitimacy:
An Instrument ofProcreativePower, 3 COLUM. J. GENDER & L. 495, 498-99 (1993).
17. Katharine Baker, Bargaining or Biology? The History and Future of Paternity
Law and Parental Status, 14 CORNELL J.L. & PUB. POL'Y 1, 23 (2004) [hereinafter
Bargaining or Biology?].
18. Jens Scherpe, Protection of Partners in Informal Long-Term Relationships 7(3)
INT'L L. FORUM DU DROIT INT'L 206, 207 (2005).
19. Bargaining or Biology?, supra note 17, at 6.
20. Rita Alta Charo, And Baby Makes Three - or Four, or Five, or Six: Redefining
the Family after the Reprotech Revolution, 15 Wis. WOMEN'S L.J. 231, 242 (2000).
21. MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW 27-28 (1989).
22. Goodright v. Moss (1777), 98 Eng. Rep. 1257, 1257 (KB); Maynard v. Hill, 125
U.S. 190, 210-11 (1888); 46 Martin Luther et al., Martin Luther's Works, 261-62 (1986);
JOHN LOCKE, Two TREATISES OF GOVERNMENT (Ian Shapiro ed., 2003); Richard F.
Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional
Approach to Parentage, 53 HASTINGS L. J. 597, 640-42 (2002).
23. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 443 (1796);
Bargaining or Biology?, supra note 17, at 24.

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 412 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

regardless of genetic connection to the father.2 4 From this perspective the

marital presumption is not an arbitrary rule, but a manifestation of the
husband and wife's intentions. Only when it was proven that these intentions
were not upheld within the marriage, could the presumption fail. Thus, it is
clear that intent has a role in the marital presumption. This is not to say that
such intent necessarily exists in each and every marriage today. It is merely
the presumption that is based on the assumption that such intent exists.
That said, with more children being born outside wedlock and rising
divorce rates, it has been suggested that the substance of family life, rather
than the form, should have legal consequences. 25 Put differently, the
parenting functions and perceptions should have meaning, not the legal
status of the family members in relation to each other.
One method of evaluating the substance of family life as an indicator for
conferring parental rights and responsibilities is the functional approach.
According to this approach, the courts should recognize an individual as a
parent if she acted as one in a regular way. 26 This could be done by
considering the different elements in the day to day family life, such as
whether the adult and child live together, if the former assumed parental
obligations without expecting financial compensation, the length of time and
intensity of the parent-like relationship, and the formation of reliance or
dependence. 27
As the definition of this approach suggests, functional parenting is a
voluntary matter. A person must act intentionally as a parent for a significant
period of time in order to be recognized as a parent; and the more

24. Bargainingor Biology?, supra note 17, at 24.

25. Leslie J. Harris, Reconsidering Criteriafor Legal Fatherhood,461 UTAH L. REV.
461, 482 (1996); see generally Bridge, supra note 2; ERIc CLIVE, Marriage: An
Unnecessary Legal Concept?, in MARRIAGE AND COHABITATION IN CONTEMPORARY
SOCIETIES 71 (1980).
26. Melanie Jacobs, Applying Intent-Based Parentage Principles to Nonlegal
Lesbian Coparents, 25 N. ILL. U.L. REv. 433, 435 (2005) [hereinafter Applying Intent-
Based Parentage].
27. Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005); Perkins v. Perkins, 383 A.2d
634, 634-36 (Conn. Super. Ct. 1977); C.C.A. v. J.M.A., 744 So. 2d 515, 517 (Fla. Dist.
Ct. App. 1999); Wade v. Wade, 536 So. 2d 1158, 1160 (Fla. Dist. Ct. App. 1988); Wright
v. Newman, 467 S.E.2d 533, 535 (Ga. 1996); Rideout v. Riendeau, 761 A.2d 291 (Me.
2000); In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash. 2005); In re Custody of
H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995); Susan Frelich Appleton, Parents by the
Numbers: Should Only Two Always Do, 37 HOFSTRA L. REv. 11, 29-33 (2008); Nancy
D. Polikoff, Response: And Baby Makes How Many - Using In re MC. to Consider
Parentage of a Child Conceived through Sexual Intercourse and Born to a Lesbian
Couple, 100 GEO. L.J. 2015, 2032-2033 (2012) [hereinafter Response: And Baby Makes].

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2017] A FAMILY IS WHAT YOU MAKE IT? 413

responsibilities taken the more likely it is that the court wilf give a legal
consequence to these actions. Hence, it is fair to argue that the functional
approach has a strong element of intention.28 Indeed, it is not common to
find a situation in which an individual is acting like a parent without the
intent to perform as one. Of course, if a person is compelled to fulfill some
parental roles by matter of law, it is possible that the intent to perform as a
parent will be lacking. However, these situations occur a posteriori to the
recognition of parenthood and parental responsibilities, so they are irrelevant
in this respect for the purposes of this paper.
An interesting issue, which arises in the context of the functional
approach, is that of recognition of parental responsibilities by implicit
contract. At times, courts apply the functional approach in order to identify
a contract-like obligation to assume parental responsibilities. 29 Here, the
intent is not merely an underlying principle, but the focal point of the
proceedings. By borrowing notions from contract law, acting as a parent
indicates to the court the intent to assume parental responsibilities. Once
more it is visible that. intent is a cardinal factor in the functional approach.
Another method of evaluating the substance of family life as an indicator
for conferring parental rights and responsibilities is the psychological
approach. Once more, the parenting functions are a proxy for the
recognition of parenthood and allocation of parental responsibilities.
However, the emphasis lies on the perception of the adults and children, and
whether they see themselves as a family and identify as parents and children.
This self-perception and identification could have direct manifestation (the
child calls an individual her "mom" or "dad"), and indirect manifestations
(the individuals fulfill parental roles, like doing the laundry, taking the child
to the doctor, etc.). They do not need to live in the same house for such
identification and attachment to occur.31 Yet, they do need to have a

28. Kristine H., 117 P.3d at 696; Applying Intent-Based Parentage,supra note 27,
at 437-38; Nancy Polikoff, This Child Does Have Two Mothers: Redefining Parenthood
to Meet the Needs of Children in Lesbian-Motherand Other Non-traditionalFamilies,
78 GEO. L.J. 459, 464 (1990) [hereinafter Two Mothers]; Storrow, supra note 22 at 640-
42; Katharine K. Baker, Quacking Like A Duck? FunctionalParenthoodDoctrine and
Same-Sex Parents,92 CHI.-KENT L. REv. 135, 145-60 (2017).
29. Clevenger v. Clevenger, 11 Cal. Rptr. 707 (Cal. Ct. App. 1961); RCA 8256/99
Plonit v. Ploni, PD 58(2) 213, 233-36 (2003) (Isr.); Bargainingor Biology?, supra note
17, at 31.
30. Storrow, supra note 22, at 640-42.
31. ALLISON JAMES, Parents: A Children's Perspective, in WHAT IS A PARENT? A
Socio-LEGAL ANALYSIS 190 (1999); cf Irene Levin, Children's Perceptions of Their
Family, in CHILDHOOD AND PARENTHOOD: PROCEEDINGS OF ISA COMMITTEE FOR

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414 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

continuing mutual relationship, which fulfils the child's psychological and

physical needs.32
Again, it is possible to see how intent has a meaningful role. Although the
psychological approach is focused on feelings and emotions, it does not
overlook the actions that caused them, which are used as objective
indications of the existence of a psychological connection. These actions are
very similar to those that are examined in the functional approach.
Therefore, here too it will be hard to find cases in which a person will act as
a parent without the intention of doing so. Indeed, it might be even harder,
because the focus is on the creation of deep feelings and emotions, and not
just function. Hence, intent is a cardinal aspect of the psychological
approach as well.33
While the marital presumption, functional, and psychological approaches
maintain the distinction between the notions of parentage and parenthood,
the genetic/biological approaches conflates them as they allocate parenthood
according to parentage. The genetic approach focuses on the genetic
contribution to the child's DNA. The biological approach adds another
layer, and considers not just DNA but also general biological contribution to
the child's birth. In this sense, the genetic parents can also be described as
the biological parents, but the reverse is not necessarily true. Hence, it seems
that the main contribution of the biological approach is in its use in assisted
reproductive technologies ("ART"), where there is a need to distinguish
between the genetic parents and the gestational parent.34 Even when the
latter has no genetic relation to the child, s/he could be considered as a
biological parent.
Both the genetic and biological approaches provide a bright-line rule that
ensures that every child has at least two parents.35 The sources of this rule
have various origins. For instance, in England it could be traced to the
British Poor Laws, allowing reimbursement from fathers whose children

FAMILY RESEARCH CONFERENCE ON CHILDREN AND FAMILIES 281-83 (Julia Brannen

&

Margaret O'Brien eds., 1994).

32. JOSEPH GOLDSTEIN, ANNA FREUD, & ALBERT SOLNIT, BEYOND THE BEST
INTERESTS OF THE CHILD 38 (2nd ed., 1979); Rethinking Parenthood, supra note 5, at
883, 944-48.
33. Charo, supra note 20, at 246.
34. See id. (noting in this context that the term "parent" is used, and not mother, as
in some cases involving transgender, transsexual or intersex individuals it would be
inaccurate to simply describe the genetic and gestational parent as a mother).
35. Bionormativity, supranote 5, at 653.

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2017] A FAMILY Is WHAT YOU MAKE IT? 415

received financial assistance. Contrastingly, in the U.S. some states used

paternal support as punishment for bastardy or fornication.3 7 In both
countries, it seems, intent was not a consideration in the recognition of
parenthood and parental obligations. This is true to this day. Since genetics
and biology are the sole indicators used to determine parenthood and parental
rights in these approaches, intent serves no purpose in them. Indeed, an
individual could be a genetic or a biological parent without intending to
become one, for example, if birth control measures failed. Furthermore,
when these approaches are applied intent is not examined. So even if one
could argue that intent exists post-conception by choosing not to have an
abortion, it is supposedly irrelevant, notwithstanding that only the gestational
parent has the power to abort.
Lastly, in some instances parental status is allocated according to the
intention-based approach. This approach is rather straightforward: parental
status is determined according to the individual's intention to assume such a
role. However, unlike the previous approaches, in which intention was a
factor but it was not necessarily examined to determine parental status, here
intentions are considered directly. This approach is mainly applied to
determine parenthood and parental responsibilities in cases of assisted
reproduction. 3 8 For instance, in some jurisdictions if a woman consents to
her partner's insemination she will be that child's parent if she initially
intended to be the parent.39 Similarly, some courts have ruled that a sperm
donor is the child's father by means of apparent consent.40
The table below aids in clarifying the relationship between the methods of
allocating parental statuses, and the statuses themselves. It shows that if the
marital presumption, genetic or biological approaches are used, then
parentage will be conferred, and consequently parenthood status and/or
parental responsibilities might also be allocated. In contrast, if the

36. Id. at 657-58.

37. HARRY D. KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 109 (1971).
38. JANET L. DOLGIN, DEFINING THE FAMILY 239-43 (1997); Bargaining or
Biology?, supra note 17, at 26-30; Applying Intent-BasedParentage,supra note 26, 437-
48; Storrow, supra note 22, at 640-42.
39. Cf. D.C. CODE §16-909(e)(1) (2016); N.M STAT. ANN. § 40-1lA-703 (2009);
WASH. REV. CODE § 26.26.710 (2011); Johnson v. Calvert, 851 P.2d 776 (Cal. 1993);
E.N.O. v. L.M.M, 711 N.E.2d 886, 891-92 (Mass. 1999); In re Karin T. v. Michael T.,
484 N.Y.S.2d 780 (N.Y. Fam. Ct. 1985); Shineovich v. Shineovich, 214 P.3d 29, 39 (Or.
Ct. App. 2009); J.A.L. v. E.P.H., 682 A.2d 1314, 1316 (Pa. Super 1996); RFA 4890/14
Plonit v. Plonit (2014) (Nevo) (Isr.).
40. See, e.g., In re R.C., 775 P.2d 27, 27, 35 (Colo. 1989); C.M. v. C.C., 377 A.2d
821, 821-22 (N.J. Sup. Ct. 1977).

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416 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

psychological, functional, or intention-based approaches are used, then only

parenthood status and/or parental responsibilities will necessarily be
awarded. Lastly, the table illustrates that intent is or was an integral part of
the marital presumption, psychological, functional, and intention-based
approaches, and is non-existing in the genetic and biological approaches.

Status Allocation ParentalStatus Conferred Intent

Method
Marital Necessarily: parentage Historical/Tacit
Presumption Consequently: parenthood and/or parental responsibilities
Psychological Necesgrily: parenthood and/or parental responsibilities Tacit
Functional Necessarily: parenthood and/or parental responsibilities Tacit
Genetic Necessarily: parentage None
Consequently: parenthood and/or parental responsibilities
Biological Necessarily: parentage None
Consequently: parenthood and/or parental responsibilities
Intention-Based Necessarily: parenthood and/or parental responsibilities Explicit

m. WHO COULD BE MULTIPARENTS?

Multiparental family structures are of a diverse nature. Some
multiparental family structures are a consequence of new reproductive
technologies, others of new social and legal practices, while some
multiparental structures come in old and familiar forms. Moreover,
multiparents can be found in both heterosexual and LGBT headed families.
The following subsections will present the five main multiparental family
structures: ART, co-parenting, stepfamilies, open adoptions, and extended
kinship care.
In this respect three issues are noteworthy: First, the following subsections
describe who can be considered as multiparents from a social perspective,
not according to existing legislation or case law. The question of who should
be recognized as multiparents, and who are indeed recognized as
multiparents under the law, will be discussed later.
Second, multiparental families could be of a hierarchal or egalitarian
parental status character. For instance, in open adoption and kinship carers
it is more likely to find a division between the "core" parents, who take an
active role most of the time, and "secondary" parents. In contrast, co-
parenting could lead to an egalitarian division of parental care.
Third, we must keep in mind that the multiparental family structures
described below might not be distinct, and that some overlapping may occur.
For example, there is the possibility that alongside the parents who used
assisted reproductive technologies we can identify adoptive parents and co-
parents. However, in the context of the following subsections I will illustrate

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2017] A FAMILY Is WHAT YOU MAKE IT? 417

who are the potential multiparents while disregarding possible overlaps

unless they are unavoidable. With these remarks in mind, we can move to
discuss the various categories of multiparental families.

A. Assisted Reproductive Technology Families

The first type of multiparental structures is that of families that are
established through the use of assisted reproductive technology ("ART").
This term refers to many different types of assisted reproductive treatments,
ranging from fertility medication, through some form of handling sperm and
eggs (such as artificial insemination, in-vitro fertilization ("IVF"), and
surrogacy), to selection and manipulation of the genetic material. Not all
ART treatments lead to a possibility of multiparents. If there are only two
intended parents who are the sole providers of the genetic material, and one
of the intended parent is also the gestational parent, then theoretically there
should only be two parents - much like unassisted reproduction.
However, ART is complex by its nature, and therefore it is a fertile
environment in which the multiparents phenomenon can occur. In some
cases, the intended parents require sperm or egg donation, or the help of a
surrogate mother. Here the intended parents might not both be the genetic
parents, or there may be another biological parent (i.e. the surrogate)
alongside the two genetic parents. Additionally, there might be more than
two intended parents, e.g. when a lesbian couple decide to have a child with
a known sperm donor who takes an active role in the child's life. But there
might even be cases in which there are three genetic parents. Since the
4
1990s, scientists have been successful in using ooplasm transfer ' and
mitochondrial replacement4 2 in ART.43 These procedures involve using
genetic materials from three different people - the sperm donor, the healthy
egg donor, and the damaged egg donor - and they can require the help of a
surrogate. Consequently, children who are born via this procedure will have
three genetic parents and potentially an additional biological parent. Thus,
in theory, children born in such circumstances can have multiparents.

41. Injecting a small amount of ooplasm from eggs of fertile women to the eggs of
unfertile women. See Jacques Cohen et al., Ooplasmic Transfer in Mature Human
Docytes, 4 MOLECULAR HUM. REPROD. no. 3, 1998, at 269-80.
42. Replacing damaged mtDNA with healthy mtDNA. See Frangoise Baylis, The
Ethics of Creating Children with Three Genetic Parents, 26 REPROD. BIOMEDICINE
ONLINE 531, 531-32 (2013).
43. Recently, England advanced a new regulation that will allow mitochondrial
donations, but it will only recognize two legal parents. See The Human Fertilisation and
Embryology (Mitochondrial Donation) Regulations 2015, SI 572, art. 3, ¶ 15, 17 (Eng.).

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418 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

B. Co-ParentingFamilies
The second type of multiparental structure is co-parenting. The term 'co-
parenting' describes a situation in which individuals jointly raise children
without being in a romantic or legally recognized relationship. Such
arrangements occur either after spousal separation, or as a result of a choice
to raise children without prior or subsequent romantic involvement. It is
important to note in this context that co-parenting is used by members of the
LGBTQ community and heterosexuals as individuals, as couples, or in other
combinations. In the latter case there are more than two individuals
involved. Thus, according to the intention-based, functional, or
psychological approaches, the child could have multiparents, and the number
of family members and complexity of the family structure can vary
considerably.
For example, assume Adam and Brian are a gay couple who decide to have
a child with Christina using Adam's sperm. The three agree on the various
issues regarding childrearing, from the child's name, custody arrangements,
and financial support, up to breakup or new relationships. As a result, Dorian
is born. He spends half of his week with Adam and Brian, and the other half
with Christina, and alternates between the two homes every other weekend.
After a year Christina falls in love and marries Eliot, and together they have
Fiona. All four adults take an active role in raising the two children, which
now have three fathers and one mother. Although this example can be
developed even further,4 it is sufficiently established for our purposes. We
can now see that co-parenting does not only illustrate how "it takes a village
to raise a child", 45 but also that it sometimes creates the village.

C. Stepfamilies
The third type of structure is stepfamilies. As aforementioned, in some
instances after spousal breakup one or both of the parents meet new spouses,
who participate in the day-to-day upbringing of the children. Here there
might be a positive cooperation between the "original" parents and the "new"
parents. 4 6 In this case the parental responsibilities will be shared according

44. See generally JOHN EEKELAAR, Parenthood Social Engineering and Rights, in
CONSTITUTING FAMILIES: A STUDY IN GOVERNANCE 83 (Derek Morgan et. al. eds., 1994);
Annemarie Vaccaro, Toward Inclusivity in Family Narratives: Counter-Storiesfrom
Queer Multi-ParentFamilies, 6(4) J. GLBT FAM. STUD., 425, 429-32 (2010).
45. See generally HILLARY RODHAM CLINTON, IT TAKES A VILLAGE (Simon
&

Schuster, 1996).
46. I use the terms "original" and "new" parents to distinguish between the
individuals that were initially legally recognized as the parents and the new spouses who

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2017] A FAMILY IS WHAT YOU MAKE IT? 419

to some sort of an agreement between the parents. But it may very well be
that an "original" parent will not take an active role in the child's life, and
the "new" parent will assume that role. Whichever situation may apply, the
fact that the new spouses fulfil parental roles can lead to a situation where
the child has multiparents.

D. Open Adoption Families

The fourth structure is open adoptions. The way an adoption is
categorized determines whether the child might have multiparents. A closed
adoption is supposed to sever all ties - legal and social - between the
"original" parents and the child.47 Therefore, in most cases of closed
adoptions a child will have two parents at most at any given time. In an open
adoption, however, there can be various degrees of relationship between the
"original" parents and the child, from unilateral transmission of information
to the "original" parents, through some form of visitation, to the existence of
48
some parental rights and responsibilities of the "original" parents. It is in
the latter situation where there is a potential for multiparenting. It is also
important to note that in very few and rare cases there have been reports of
49
three adoptive parents, both in closed and open adoptions. In these cases it
is clear that we are dealing with multiparents.

E. Kinship CarerFamilies
The fifth and last type of multiparental family structures is extended
kinship carers. As their title suggests, extended kinship carers are either
members of the extended family or other friends who share a close and
intimate relationship with the family. The care is a result of voluntary
agreement between the parents and the carers. The care is provided with no
expectation of monetary compensation and the extended kinship carers may
be, inter alia, grandparents, godparents, aunts and uncles, friends, neighbors,

take on parental responsibilities.

47. See, e.g., CAL. FAM. CODE §§ 7660-7666 (West 2017); Adoption Act, R.S.C.
1996, c. 38 (Can.); Adoption & Children Act 2002, c. 46, (Eng.).
48. See, e.g., Adoption Act, R.S.C. 1996, c. 38 (Can.); Down Lisburn Health and
Soc. Servs. Tr. v. H, [2006] UKHL 36 (Eng); Children Adoption Act 5741-1981 § 16 (1)
(Isr.); Melissa Murray, The Networked Family: Reframing the Legal Understandingof
Caregivingand Caregivers, 94 VA. L. REv. 385, 424 (2008).
49. Samantha Brennan & Bill Cameron, How Many Parents Can a Child Have?
Philosophical Reflections on the "Three Parents Case", in SELECTED WORKS OF
SAMANTHA BRENNAN 14-15 (Western University ed. 2013); Nancy Polikoff, A Mother
Should Not Have to Adopt Her Own Child: ParentageLaws for Children of Lesbian
Couples in the Twenty-first Century, 5 STAN. J.C.R. & C.L. 201, 243 (2009).

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420 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

and tribe members.o These carers can, in certain situations, may be

considered parents alongside the "original" parents.

IV. WHY SHOULD MULTIPARENTS BE RECOGNIZED?

So far, the paper has reviewed the three parental statuses, the approaches
for their allocation, and who could be multiparents. But before proceeding
any further, it is important to address a debatable aspect of this paper, which
is why multiparents should be recognized. In this section the arguments
opposing recognition of multiparents will be examined and refuted. These
arguments could be generally divided into three categories: inducing heavy
strain on the administrative system, infringing on the idea of the family as an
institution, and endangering the child's best interests. All three arguments
share one main fault. They all promote an approach of total non-recognition
of multiparents, but the justifications they provide do not support this
absolute stance. Even if we were to say that these arguments have some
merit, their internal logic does not exclude the recognition of multiparents as
an exception to the general rule. Hence, the main purpose of these arguments
- total non-recognition of multiparents - could not be supported by them.

A. Administrative Strain?
The first strain of arguments opposing the recognition of multiparents
suggests that with the recognition of any additional parent, beyond the
traditional two, greater administrative strain is induced." This strain could
be described as direct if, for example, multiparents will impose a greater
burden on the courts when settling conflicts regarding such matters as
custody, visitation, and financial support.5 2 Yet, it could also be described
as indirect. If the recognition of multiparents will make it easier for an
individual parent "to shirk his or her responsibilities,"53 then the state might

50. Matthew M. Kavanagh, Rewriting the Legal Family: Beyond Exclusivity to a

Care-BasedStandard, 16 YALE J.L. & FEMINISM 83, 84 (2004); Vaccaro, supra note 44,
at 432.
51. Marquardt, supranote 4; see generally Mary Anne Case, MarriageLicenses, 89
MINN. L. REV. 1758 (2005).
52. Emily Buss, "Parental"Rights, 88 VA. L. REV. 635, 635-36 (2002); June
Carbone, The Legal Definition of Parenthood: Uncertainty at the Core of Family
Identity, 65 LA. L. REV. 1295, 1297 (2005); Melanie B. Jacobs, More Parents, More
Money: Reflections on the FinancialImplications ofMultiple Parentage, 16 CARDOZO
J.L. & GENDER 217, 223 (2010) [hereinafter More Parents, More Money]; Marquardt,
supra note 4; Wald, supra note 8, at 380-81.
53. Stanley Kurtz, Heather Has 3 Parents, NAT. REV. ONLINE (Mar. 12, 2003)
www.nationalreview.com/article/206153/heather-has-3-parents-stanley-kurtz.

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2017] A FAMILY IS WHAT YOU MAKE IT? 421

have to take over those responsibilities, or at the very least spend resources
on their enforcement.
However, it seems doubtful that the administrative strain imposed by
multiparents is significantly more strenuous than that which is imposed on
public authorities when dealing with any two-parent dispute. Furthermore,
even if multiparental family structure disputes are more complex, an issue
that so far was not established empirically, this fact by itself does not justify
non-recognition of multiparents in the first place. In regards to custody
disputes particularly, the difficulties arising cannot justify differential
treatment between "traditional" and multiparental families. Moreover, it is
not at all clear that multiparenting makes it easier to shirk parental
responsibilities.54 In fact, multiparents might require less state intervention
than two parents and single parents for two reasons. First, the former can
self-enforce each other's parental obligations." Second, the larger number
of individuals that are responsible for a child make it less likely that the state
will need to support her."

B. Protectingthe "Traditional"Family?
The second strain of arguments opposing the recognition of multiparents
claims that this recognition will undermine the "traditional" understandings
of the family as an institution." The fear is that the "traditional" family will
lose its social and legal dominance. For instance, once the multiparental
relationship between the parents and the children is recognized, then the
parents will push for "the rights and protections of marriage.""
Alternatively, the protection of the "traditional" family as a whole and
complete unit could be compromised. It was argued that by the ability to
recognize multiparents the family members' right to privacy and autonomy
could be compromised, as courts could use their power to "force" an
additional parent on the family.59

54. Brian Bix, The Bogeyman of Three (or More) Parents, MINN. LEGAL STUDIES
RESEARCH PAPER No. 08-22, 3 (2008).
55. See Vaccaro, supra note 44, at 434 (highlighting the testimony of one
multiparent).
56. Laura T. Kessler, Community Parenting, 27 WASH. U.J.L. & POL'Y 47, 72
(2007); Kinsey, supra note 8.
57. Duncan, supra note 2, at 77; Lynn D. Wardle, DeconstructingFamily: A Critique
of the American Law Institute's "Domestic Partners" Proposal, 2001 BYU L. REV.
1189, 1228-33 (2001).
58. Marquardt, supranote 4.
59. Appleton, supra note 27, at 29-30; Bix, supra note 54, at 6-7; Diane M.
Goodman, Why Can't Children Have Three Parents, 34 L.A. LAW. 36 (2011); John De

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422 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4
Still, there is no reason to believe that the survival of the "traditional"
family is dependent on the non-recognition of multiparental families, just as
it was not dependent on (or affected by) recognition of single-parent and
same-sex families.60 Moreover, there might not be any value worth
maintaining in the "traditional" family structure itself.6 1 Furthermore, it is
not uncommon for children today to live outside the nuclear family, or in a
family structure that does not include two parents; 6 2 notwithstanding a
growing trend of a kinship network made of several households, which take
part in child rearing. 6 3 This indicates that the "traditional" family ideal is far
from how it is practiced in real life. Additionally, arguing that recognizing
multiparents will encourage the recognition of polyamorous or polygamous
relationships is both baseless and ignorant of the nature of multiparental
families.6 These structures are of a diverse nature, yet they are almost
always composed of individuals who are not all involved in a romantic
relationship. 65 Non-recognition of all multiparental families due to the fear
that a very small minority of them will pursue additional rights seems
disproportional and ill-informed. Lastly, regarding the courts infringement
of the privacy and autonomy of the family unit, this is not a novel notion.
First, privacy and autonomy should not be used as an a priorireason for not
recognizing multiparents, as such reasoning could not be justified. Rather,
they should be balanced against other rights and interests, in accordance with
the unique circumstances of each case. Second, if individuals choose to form

Witt Gregory, Family Privacy and the Custody and Visitation Rights ofAdult Outsiders,
36 FAM. L.Q. 163, 184-87 (2002); Fiona Kelly, Nuclear Norms or Fluid Families?
IncorporatingLesbian and Gay Parentsand Their Children into CanadianFamily Law,
21 CAN. J. FAM. L. 133, 172 (2004); David D. Meyer, Parenthood in a Time of
Transition: Tensions Between Legal, Biological, and Social Conceptions ofParenthood
54 AM. J. CoMP. L. 125, 126-32 (2006).
60. Nancy Dowd, Multiple Parents/MultipleFathers, 9 J.L. & FEMINIST STUD. 231,
223-24 (2007) [hereinafter Dowd 2007]; Nancy Dowd, Law, Culture and Family: The
Transformative Power of Culture and the Limits of Law. 78 CHI.-KENT L. REV. 785, 786
(2002); see generally Yoav Dotan, The Boundaries of Social Transformation through
Litigation: Women's andLGBTRights in Israel, 1970-2010, 48(1) ISR. L. REV. 3 (2015).
61. See generally GARY BECKER, A TREATISE ON THE FAMILY 227-306 (1981);
STEPHANIE COONTZ, THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE
NOSTALGIA TRAP (1992); MARTHA. A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL
FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995).
62. Kessler, supra note 56, at 53; Hannah Richardson, NuclearFamily 'In Decline',
FiguresShow, BBC NEWS, (July 2,2010) www.bbc.co.uk/news/10487318.
63. Kessler, supra note 56, at 59.
64. Kinsey, supra note 8, at 335.
65. See generally Vaccaro, supra note 44, at 434.

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2017] A FAMILY IS WHAT YOU MAKE IT? 423

a multiparental family, then privacy and autonomy justify its recognition.

C. The Child's Best Interests?

The third strand of arguments against the recognition of multiparents
focuses on the child's best interests. In cases involving multiparental
66
recognition, the child's best interests has played a significant role. As shall
be demonstrated below, recognition of multiparents does not harm the
child's best interests a priori. On the contrary, not recognizing multiparents
as a general rule will seemingly have a negative effect.
But first, it is important to define what the child's best interests standard
is. The child's best interests is considered to be a vague standard, which has
the potential to be interpreted in many different ways. 6 7 Thus, it is hard to
extract one clear definition that will be applicable in various situations, let
alone remain unchanged over time. 8 However, despite the fact that there is
no universal definition of this standard, some general observations can be
made. This standard has been interpreted as primarily concerning the child's
psychological interests, but there has also been consideration of other
69
interests, such as economical, educational and medical needs. In this
regard, courts have examined the level of attachment between the parent and
the child, alongside the child's perspective and wishes. 70 Hence, an
examination of the child's best interests entails the same principles of the
psychological and functional approaches, and if the child is old enough to
express herself then the principles of the intention-based approach are also
considered.

66. See, e.g., CAL. FAM. CODE § 7612(c) (West 2017); A.A. v B.B. (2007), 83 O.R.
3d 561 (Can. Ont.); A v. B and Another [2012] EWCA Civ 285 (Eng.); M.L. v. R.W.
[2011] EWHC 2455 (Fain) (Eng.); Re W.B. (children) (contact) [2011] EWHC 3431
(Fain) (Eng.); Re D (contact and parental responsibility: lesbian mothers and known
father) [2006] EWHC 2 (Fam) (Eng.); Coupet, supra note 8, at 595.
67. Katharine Bartlett, Preference, Presumption, Predisposition, and Common
Sense: From Traditional Custody Doctrines to the American Law Institute's Family
DissolutionProject, 36 FAM. L.Q. 11, 13 (2002).
68. Bionormativity, supra note 5, at 682; Dolgin, supra note 38, at 238-43; Naomi
R. Cahn, Reframing ChildCustody Decision Making, 58 OHIO ST. L.J. 1, 5-14, 58 (1997).
69. Coupet, supra note 8, at 642; Robert Emery et al., A CriticalAssessment ofChild
Custody Evaluations: Limited Science and a Flawed System, 6(1) PSYCHOL. SCI. PUB.
INT. 1, 6 (2005); cf 2007 O.A.C. 2, 83 O.R. (3d) 561 (Can.); A v. B and Another [2012]
EWCA Civ 285 (Eng.); [2011] EWHC 3431 (Fain) (Eng.); [2006] EWHC 2 (Fam)
(Eng.).
70. Coupet, supra note 8, at 642; cf 2007 O.A.C. 2, 83 O.R. (3d) 561 (Can.); [2011]
EWHC 3431 (Fain) (Eng.); [2006] EWHC 2 (Fam) (Eng.).

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424 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

With the complex nature of the "child's best interests" standard in mind
we can now turn to the main reservation that has been made in the context of
recognizing multiparents. It has been argued that due to the nature of
multiparenting households, there will be "too many cooks in the kitchen",
causing decision making to be extremely difficult. 1 It has also been argued
that the family will often include more than two households, shuffling the
children between different homes and ideologies, forcing them to grow up
too fast.72
These arguments appear to assume that all multiparental families are
necessarily dysfunctional. But this assumption is far too wide and
unsubstantiated. In fact, multiparental families might not only work well
despite having "many cooks", but perhaps even better than families that only
have two. Furthermore, the claim that the mere existence of two homes in a
child's life causes distress is an ungrounded and unproven presumption, not
to mention that "traditional" families are not the ideal stress-free single-
ideology households they are portrayed as. Notwithstanding the fact that
multiparenting can take place in a single household 73 (even if not all parents
live there), having more than one home could be a positive experience.
A child's best interests may be served by recognition of multiparents for
two main reasons. First, without such recognition the family unit is
vulnerable with many issues left uncertain, such as custody, citizenship,
holding and succession of property, social support, and legitimacy.74 Not

71. Buss, supra note 52, at 635-36; Carbone, supranote 52, at 1297; More Parents,
More Money, supranote 52, at 223; Kinsey, supra note 8, at 329; Marquardt, supra note
4.
72. Marquardt, supra note 4, at 1.
73. Vaccaro, supra note 44, at 429.
74. Nicholas Bamforth, Same-Sex Partnerships:Some Comparative Constitutional
Lessons, 12 EUR. HUM. RTS. L. REv. 47, 60 (2007); Kinsey, supra note 8, at 329-37;
Kavanagh, supra note 50, at 90; FA (Tel-Aviv) 37745-03-14 Nilli v. Orit, NEVO, at 1
(Apr. 27, 2014) (Isr.). In Nilli, a family court in Israel gave effect to a co-parenting
agreement and ordered visitation rights to Nilli, who donated her eggs to her lesbian
partner Orit, which were fertilized with Alon's sperm. Orit and Alon were registered as
the parents on the birth certificate, and the three signed a co-parenting agreement in
which they declared they will act as equal parents despite the lack of formal legal
recognition of Nilli as a parent. After Nilli and Orit's relationship ended, Nilli continued
seeing the children and assisting in their daily care, until Orit and Alon stopped the
visitations. The court recognized the lacunain current legislation regarding multiparents,
and declared it would be unreasonable to ignore the parties' co-parenting agreement. The
court added that not recognizing this agreement will not only harm the parties, but that it
is also contradictory to the children's best interests, legal stability and certainty. Yet, the
court only ordered visitations and did not recognize Nilli's parenthood.

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2017] A FAMILY IS WHAT YOU MAKE IT? 425

recognizing multiparents therefore works against the child's best interests

75
while preserving the ideal of the hetero-normative monogamous family.
Second, in some circumstances, non-recognition of multiparents may result
in the child going into foster care - which is doubtfully in the child's best
interest.76 It is safe to assume that any child will be better off with the person
who has been parenting her than to go through foster care and adoption.
Considering the above, arguing that as a general rule, multiparental
families should not be recognized, or that the child's best interests negate the
possibility of recognizing multiparents in every circumstance, seems far-
fetched. There is no inherent disadvantage in the recognition of
multiparents.n Furthermore, it is not only the hallmark of democratic
societies, but also their duty, to accommodate the needs of different lifestyles
"in a reasonable and fair manner."7 8 As such, societies should strive to
ensure that the best interests of the child do not become a tool for conforming
all families to the "perfect" family ideal, but rather to provide equal
protection of various forms of families. In the following section the manner
in which such recognition currently takes place will be examined.

V. THE SPECTRUM OF RECOGNITION AND REGULATION: FROM SOCIAL

LABEL TO LEGAL STATUS
In recent years, the strict divide between 'parents' and 'strangers' has been
eroding. With such notions as presumed parents, in loco parentis, de facto
parents, and parents by estoppel, courts and legislatures recognize
individuals who fulfill the role of a parent and have some, if not all, parental
rights and responsibilities. 79 More significantly, there is a growing trend of

75. See Two Mothers, supra note 28, at 573 (explaining that family law still often
fails to recognize and protect the child-carers relationships despite the fact such
recognition is in the child's best interests, as she comes to depend on and attached to the
carers); Laura Ann Rosenbury, Rights andRealities, 94 VA. L. REV. BRIEF 39, 43 (2008);
Coupet, supranote 8, at 321.
76. Kinsey, supra note 8, at 331.
77. See generally A v. B and Another [2012] EWCA (Civ) 285, 285 (Eng.).
78. Minister of Home Affairs v. Fourie [2006] 1 S.A. 524, at 95 (S. Afr.).
79. DEL. CODE ANN. t.13, § 8-201 (2009); D.C. CODE § 16-831.01 (2012); Elisa B.
v. Superior Court, 117 P.3d 660, 664-65 (Cal. 2005); Adoption of Kelsey S, 823 P.2d
1216, 1217 (Cal. 1992); Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986);
Nunn v. Nunn, 791 N.E.2d 779, 783 (Ind. Ct. App. 2003); C.E.W. v. D.E.W., 845 A.2d
1146, 1152 (Me. 2004); Miller v. Miller, 478 A.2d 351 (N.J. 1984); T.B. v. L.R.M., 786
A.2d 913, 916-19 (Pa. 2001); Re PC (Change of Surname) [1997] 2 FLR 730 (Eng.);
MARIEL DIMSEY, Multi-ParentFamilies in the 21st Century, in EUROPEAN CHALLENGES
IN CONTEMPORARY FAMILY LAW 101, 108-09 (Katharina Boele-Woelki ed., 2008).

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426 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

allocation of parental statuses for more than two parents.

The allocation of parental status to multiparents by courts and legislatures
is not binary, but rather could be described as a spectrum . 8 On one side of
the spectrum there are individuals who are considered complete strangers.
Then, there are those who enjoy the social label of "parents" without legal
consequences attached.82 Further along are those who have parental

80. See CAL. FAM. CODE § 7612(c) (West 2017) (allowing for the recognition of
more than two parents when not doing so would be detrimental to the child); see also
ME. REv. STAT. ANN. tit. 19-A, § 1853 (2015) (granting courts the authority to recognize
more than two parents); see also Family Law Act, S.B.C. 2011, c. 25 § 44 (Can.)
(permitting "two or more of a child's guardians [to] make an agreement respecting ...
the allocation of parental responsibilities . . . "); see also Care of Children Act (2004) §
23 (N.Z.) (allowing parental guardians to appoint additional guardians for a child); see
also State of La. ex rel. Dep't. of Soc. Serv., Off. of Fam. Support v. Howard, 898 So.2d
443, 444; (La. Ct. App. 1st Cir. 2004) (discussing the concept of dual paternity, where a
child is allowed to seek support from its biological father); see also Smith v. Cole, 553
So.2d 847, 854 (La. 1989) (holding that even if a child already has a guardian, that does
not mean that the biological father can escape his parental responsibilities); see also Geen
v. Geen, 666 So.2d 1192, 1196-97 (La. Ct. App. 3d. Cir. 1995) (holding that biological
parents are not the default option when determining the best interests of a child, even
when they get married); see also State ex rel. Crook v. Mendoza, 491 N.W.2d 62, 6364
(Neb. Ct. App. 1992) (discussing the relationship between the biological father and the
custodial father and how both can be required to support the child); see also Jacob v.
Shultz-Jacob, 923 A.2d 473, 480-81 (Pa. Super. Ct. 2007) (discussing the idea that
"stepparents who have held a child out as their own are liable for support; biological
parents who have exercised the rights appurtenant to that status can be no less bound.");
see also A.A. v B.B. (2007), 83 O.R. 3d 561 (Can. Ont.) (recognizing that a child can
have two fathers, two mothers, or any combination thereof); see also McAllister v.
McAllister, 779 N.W.2d 652, 658, 660 (N.D. 2010) (holding that the best interest of the
child was to allow visitation rights by a third parent); see also K.A.F. v. D.L.M., 96 A.3d
975, 981-82 (N.J. App. Div. 2014) (recognizing that a child's best interests might involve
more than two parents); see also Dawn M. v. Michael M., 55 Misc.3d 86547865, 47
N.Y.S.3d 898, 900-02 (N.Y.S. Suffolk County 2017) (holding that "tri-custody" was in
the best interests of the child); see also In re Parentage of J.B.R Child, 336 P.3d 648, 654
(Wash. Ct. App. 2014) (holding that multiple parents can be in the best interest of the
child); see also Killingbeck v. Killingbeck, 711 N.W.2d 759, 773-74 (Mich. Ct. App.
2005) (recognizing the rights of biological and psychological parents); see generally
COMMON CORE AND BETTER LAW IN EUROPEAN FAMILY LAW 389-412 (Katharine Boele-
Woelki ed., 2005); KATHARINA BOELE-WOELKI ET AL., PRINCIPLES OF EUROPEAN
FAMILY LAW REGARDING PARENTAL RESPONSIBILITIES, 32, 66 (2007).
81. Meyer, supra note 59, at 131-32; Murray, supra note 48, at 398-99; Barbara
Bennet Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parent's
Rights, 14 CARDOZO L. REv. 1747, 1781-82 (1993).
82. E.g. A v. B and Another [2012] EWCA Civ 285 (Eng.).

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2017]1 A FAMILY IS WHAT YOU MAKE IT? 427

responsibilities, but the legal status of parenthood is not conferred to them.83

This instance along the spectrum indicates the point from which legal
rights and obligations are conferred. Closer to the other end of the spectrum
are individuals who are awarded the legal status of parenthood, but do not
have full parental responsibilities. 84 Finally, there are those who hold both
parental responsibilities and the status of parenthood.

83. See id. (providing an example of England sperm donors being recognized as
having limited parental responsibilities stemming from their parenting, but their
parenthood was not recognized as such); Re D (contact and parental responsibility:
lesbian mothers and known father) [2006] EWCA Civ 285 (Fam) (Eng.); Re W.B.
(children) (contact) [2011] EWHC 3431 (Fain) (Eng.). Conversely, in Louisiana, courts
recognize "dual paternity", where a child has both a presumed father and a biological
father. Such dual recognition does not affect the presumed father status or
responsibilities, while imposing financial responsibilities on the biological father (which
may have some parental rights). State, Dep't of Soc. Servs. ex rel. P.B. v. Reed, 10-410
(La. App. 5 Cir. 2010) 52 So. 3d 145, 147; W.R.M. v. H.C.V., 2006-0702 (La. 3/6/07),
951 So. 2d 172, 173; Howard, 898 So. 2d at 444; State, Dep't of Soc. Servs., Office of
Family Support ex rel. Munson v. Washington, 32,550 (La. App. 2 Cir. 12/8/99) 747 So.
2d 1245, 1247; Cole, 553 So. 2d at 854-55; Warren v. Richard, 296 So.2d 813, 813-814
(La.1974). Multiparental recognition, which stems from the will to ensure financial
security, can also be found in Israel. There the courts have found that if a stepparent died
in the line of duty, the stepchild may be recognized as their orphan for the sake of
receiving remuneration even if both biological parents are alive. i.e., for the purpose of
remuneration, the children may have three parents. SFA (District - Jerusalem) 1093/74
Raya Kolan v. Remuneration Officer, 1976(2) 429 (1976) (Isr.); SFA (Magistrate -
Rishon Letzion) 41988-03-11 R.A. v. Remuneration Officer Nevo (Feb. 3, 2013) (Isr.)
84. In Florida, a Miami-Dade Circuit Court judge ordered three parents to be
registered as such on a birth certificate (the genetic parents and the lesbian partner of the
genetic mother); notwithstanding, the court stated that the father will have only limited
visitation rights and no other subsequent responsibilities. See Susan Brinkmann, Florida
Allows Three Parent-Adoption, WOMEN OF GRACE (Feb. 13, .2013), www.
womenofgrace.com/blog/?p= 19406.
85. For instance, the Pennsylvania Superior Court found that a child who was born
to a lesbian couple and a known sperm donor has three parents, all of which have parental
rights and responsibilities. This was made on the basis that one is the biological mother,
her partner was the in loco parentis, and that equitable estoppel applies to the sperm
donor in light of his involvement in the child's life alongside his statutory liability as the
biological father. Jacob, 923 A.2d at 776-77, 780-81. Perhaps a more ground-breaking
case is A.A. v. B.B. in which a lesbian couple (A.A. and C.C.) together with a sperm
donation from their friend (B.B.) had D.D. (2007), 83 O.R. 3d 561 (Can. Ont.). Although
the couple were to be the primary caregivers, the three wanted B.B. to remain involved
in the child's life. The Court of Appeal for Ontario stated that it is in the child's best
interests that all three adults enjoy an equal status of legal parenthood.

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428 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

The spectrum of recognition:

strangcrs labcled as parents parental responsibilitics parenthood and parentood and

liU ited parental fil parental
responsibility responsiblics

It is important to distinguish in this context between recognition of

multiparents and their regulation. These two terms are often conflated, and
indeed they are fairly.similar in content and character. However, they have
some unique features. Recognizing multiparents requires the state to have a
more passive role than regulatingmultiparents, as recognition reflects the
individuals' choices while regulation requires the state to act as an
administrator that is constructing the family structure. Consider the
following example: Three individuals decide to be egalitarian multiparents
of a child not yet conceived, meaning that they will all have parenthood
status and equal parental responsibilities. If upon birth all three are allocated
this status (for example by registering them in the birth certificate as parents),
then the state simply recognized the multiparents intentions. If, however, in
order to confer parental status, the multiparents have to go to court, and it
has full discretion to decide if and what status will be conferred, then the
state is regulating the establishment of the multiparental family.
England is an exemplary jurisdiction which legally recognizes
multiparents by allowing the simultaneous allocation of parental
responsibilities to more than two individuals.86 However, it does not confer
parenthood status to more than two individuals. In the context of parenthood,
a woman giving birth will be considered the mother, unless the child was
adopted or a parental order was made." The legal father will be, in most
cases, the genetic father. Conversely, in ART, or if the birth mother is
married, the legal father could be one of several: the husband, an agreed
father who has -no genetic link to the child nor is married to the mother, or
even a second female parent and no father. 8 Nonetheless, there could only
be two individuals with parenthood status at most in any given moment.

86. Children Act 1989, c. 41, § 2, 4ZA, 4A (Eng.).

87. Human Fertilisation and Embryology Act (2008), § 27(1), 33(1) (Eng.)
[hereinafter HFEA]; Adoption & Children Act 2002, c. 38, § 14(Eng.); HARRIS-SHORT
& MILES, supra note 12, at 589, 624; NIGEL LowE, & GILLIAN DOUGLAS, BROMLEY'S
FAMILY LAW 281 (2007).
88. HFEA §§ 35-47 (Eng.); Adoption & Children Act 2002, c. 46, (Eng.); §§ 50-51;
HARRIS-SHORT & MILES, supra note 12, at 590, 626-30; LowE & DOUGLAS, supra note
87, at 248-51.

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2017] A FAMLY IS WHAT YOU MAKE IT? 429

England's policy of allocating parental responsibilities is a good example of

catering for a hierarchal multiparental family structure where there are core
and secondary parents.
That said, the recognition of multiparents only occurs when all parents
agree on each other's parental status. When parental status is disputed, the
establishment of the multiparental family is regulated by courts and a
hierarchal model is likely to be constructed. One case that illustrates this
point is Re D. In this case, a lesbian couple (A and C) and a sperm donor
(B) were all given parental responsibilities for the biological child of A and
B. A has parenthood status and parental responsibilities because she is the
biological mother, and C has them by means of a joint residence order. B
was granted limited parental responsibilities, and consequently the social
"label" of a parent. But he does not have the legal status of parenthood. As
Black J stated:

As Mr. B expressly recognises, Ms. A and Ms. C are [the child's]

day to day parents and he has no role in her day to day care, whether
in relation to decision making or otherwise. He will, however, be
kept informed of all major decisions taken by Ms. A and Ms. C in
relation to her. He will thus be recognised as a parent by the grant
of parental responsibility but it will be a parent of a very different
sort-no less important, just very different.89

Despite Black J's attempt to portray Mr. B's status as equal to that of Ms.
A and Ms. C, it is secondary to theirs. It should be noted, that Re D is a case
in which the court regulated the multiparental family rather than simply
recognizing it. This is mainly because A, B, and C were in disagreement
about the scope of parental responsibilities B should hold. If they were all
in agreement then they could have applied for a court order, in which case
the Court's discretion would have been more limited.
Similar issues arise in the A v. B case. 90 Here, A offered to be the sperm
donor for B and C, his lesbian friends (who were in a relationship). Because
B comes from a religious family, the three decided that it would be best if
she, B, and A would marry, but that the child will be raised by B and C. They
also agreed that A's fatherhood would be recognized, but that his parental
role would be secondary. After conception, cracks began to appear in the
relationship of the three adults. After M was born, A applied for a defined
contact order, and B and C applied for a joint residence order and a specific

89. See Re D [2006] EWCA Civ 285 (Fan) (Eng.).

90. A v. B and Another [2012] EWCA Civ 285 (Eng.).

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430 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4
issue order relating to A's exercise of parental responsibility. Again, we can
see how the court was willing to confer parental status based on the
hierarchal model. Thorp LJ stated:

[I]n the present case some would say that the primary carer is the full-time
nanny. However, let me rank the three parents in the context of care.
Clearly, B and C are primary carers. Clearly, A is only presently on the
threshold of providing secondary care. 91

The English courts' recognition and regulation of multiparental family

structures according to a hierarchal model is not surprising. As mentioned
above, in England there could only be two holders of parenthood at any given
moment. This policy places the holder of the parenthood status in a superior
position to any of the other parents for several reasons. First, parental
responsibilities are less permanent than parenthood, as they have an
expiration date - when the child reaches majority and the parents lose their
parental responsibilities. 9 2 A similar result occurs if the child dies, is adopted
or when a parental order is made.93 Contrastingly, parenthood could come
to an end by means of adoption or parental order only. Without such
intervention, the familial link will always exist. Second, the social parental
label is arguably different. Parenthood is a status only parents enjoy,
whereas non-parents can potentially have parental responsibilities. As such,
although both legal instruments produce some sort of parenting status, the
social value attached to each instrument is different - parenthood is more
exclusive and coveted.
California has taken an approach that differs from the English courts when
allocating parental status to multiparents. Section 7612(c) of the California
Family Code allows courts to acknowledge multiparents when prescribing
parental status to only two parents would be detrimental to the child. Thus,
under California law it is possible to have more than two individuals with
parenthood status. 94 According to the Bill introducing the new legislation:

91. Id.
92. LOWE & DOUGLAS, supra note 87, at 391.
93. HFEA § 54 (Eng.); Adoption & Children Act 2002, c. 38, § 46. (Eng.); LOWE
&

DOUGLAS, supra note87, at 431.

94. This legislation passed to abrogate In re MC., in which the California Supreme
Court held that the juvenile court erred when it failed to resolve the competing
presumptions of three presumed parents (a biological mother, her lesbian partner, and
the biological father) such that the child had only two legal parents. S.B. 274, 2013-14
Reg. Sess. (Cal. 2013); see generally In re M.C., 123 Cal. Rptr. 3d 856 (Cal. Ct. App.
2011).

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2017] A FAMILY IS WHAT YOU MAKE IT? 431

Most children have two parents, but in rare cases, children have more than
two people who are that child's parent in every way ... It is the intent of
the Legislature that this bill will only apply in the rare case where a child
truly has more than two parents. 95

Hence, the courts do not simply recognize multiparents, they regulate

them and have wide discretion over the decision whether to confer parental
status or not. Unlike the English legislation, it is not possible for the holders
of parenthood status to agree to the allocation of parental responsibilities to
other individuals. These individuals can partake in the parenting enterprise,
but their relationship with the children will receive limited legal protection
at best. 9 6 Therefore, California is a vivid example of jurisdictions that
acknowledges only egalitarian multiparental families, in which all parents
have the same legal parenthood status.
There are several disadvantages to this form of regulation. First, as the
regulation of multiparents pivots on the courts' application and interpretation
of the term 'detrimental' in Section 7612(c) of the California Family Code,
it is possible that such interpretation will be very strict and narrow, making
97
the allocation of legal status to multiparental families all but impossible.
Second, if Bill 274's approach is adopted, conferring parental status on
multiparents may only be possible if the adults fit into the ideal of a
heteronormative pattern of parenthood. In this sense, multiparents will be
awarded parental status only if they already share the parenting equally, live
in the same house, etc.9 8 Future relationships, or non heteronormative

95. See Cal. S.B. 274 (emphasis added).

96. Why Just Two?, supra note 5, at 325; Paula Roach, Parent-ChildRelationship
Trumps Biology: California's Definition of Parent in the Context of Same-Sex
Relationships, 43 CAL. W.L. REv. 235, 241 (2006); Michele Sacks Lowenstein and
Elizabeth M. Brown, Step Parent Child Custody Rights, LOWENSTEIN BROWN (2015),
www.lowensteinbrown.com/step-parent-rights-child-custody.php (last visited Apr. 25,
2016).
97. Several cases suggest that the Californian courts might be heading toward a
narrow interpretation, according to which only those situations in which a parental
relationship is already formed, either in the form of psychological attachment or of
functional care, it will be detrimental for the child that more than two parents will be
recognized as such. See Martinez v. Vaziri, 246 Cal. App. 4th 373, 387-89 (2016); In re
Alexander P., 1 Cal. App. 5th 1262, 1283-84 (2016); In re Donovan L. v. Shannon L.,
No. D068304, 2016 Cal. App. 4th LEXIS 105, *12 (Feb. 11, 2016); In re D.G. v. F.G.,
No. B258378, 2015 Cal. App. Unpub. LEXIS 2414, *6 (Apr. 16, 2015). However, it
remains to be seen whether the courts will adopt this approach or diverge from it.
98. Notably, one court mentioned that an individual does not have to live with the

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432 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

relationships, might not be given legal protection. Such an approach does

not accommodate all types of multiparental families. For instance, it is
unclear whether a stepparent will be awarded parenthood status alongside
the "original" parents, as it is hard to say that stepparents fit the meaning of
"rare cases" described in the Bill. It could also be argued they are not "the
child's parents in every way". Perhaps this could only occur when the child
has three genetic or biological parents. Similarly, it is unclear whether
secondary parenting will be perceived as fulfilling the requirement of being
the child's parent in every way, or that only primary parenting could qualify.
A third example of a jurisdiction that legally acknowledges multiparents
is British Columbia. In the context of conferring parenthood status, it seems
that British Columbia has gone even further than California as it allocates
parental statuses based on parental agreements and hence recognizes
multiparents rather than regulating them. If there is a written agreement that
is made before the child is conceived through ART, then the parenthood of
all parties to such agreement will be recognized.99 British Columbia
recognizes multiparental relationships that have not yet been constituted.
There is no requirement of psychological attachment, or actual parental care.
Rather, conferring parental status hinges purely on the intentions of the
parents. Therefore, on a spectrum varying from pure recognition of
multiparents without any discretion on the part of the state, to strictly
regulating multiparents with ultimate discretion to the state, British
Columbia is closer to the former and California is closer to the latter.
Nonetheless, British Columbia is closer than England to the regulating end
of the spectrum in regards to allocation of parental responsibilities. In
general, parental responsibilities are only allocated to guardians, and
guardians are generally only parents with recognized parenthood."o
However, a person can become a child's guardian, and thus gain parental
responsibilities, if she is the child's parent or by means of a court order. 10' It
is not possible to become a guardian by agreement unless such agreement is
concluded between already recognized parents.1 02 In other words, there is a
possibility to have more than two individuals with parental responsibilities
simultaneously, but it is relatively heavily regulated.
It is important to point out the advantages arising in this context.
Recognition of multiparents is possible for both hierarchal and egalitarian

child to be considered as a parent. See In re Alexander P., 1 Cal. App. 5th at 1280.
99. Family Law Act, S.B.C. 2011, c. 25 § 30 (Can.).
100. Id §§ 39-40(2).
101. Id. §§ 50-51.
102. Id § 50.

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2017] A FAMILY IS WHAT YOU MAKE IT? 433

multiparental family structures, although it is done via two separate legal

means. Full parenthood, with registration of that status in an official registry,
is possible only for multiparents who signed an agreement prior to the child's
conception, and the conception was achieved through ART. Conversely,
allocation of parental rights without parental status is achieved via
guardianship. Notably, the value of this status is debatable, as the scope of
parental responsibilities could be limited by the guardians or the court. 0 3
Yet, there is one main disadvantage to the British Columbia model. The
requirements for recognition of parenthood - a written agreement, prior to
conception, through ART - are too strict to cover all the instances in which
multiparenting can occur. For example, not all co-parenting agreements are
written," nor are all of these arrangements "executed" via ART. Putting it
bluntly, some may prefer using a cup and syringe in their home,'os without
understanding the legal implication of this form of insemination. Hence, in
the British Columbia model there was a clear choice of form over substance.
As the above-mentioned examples show, while the concepts of parentage,
parenthood, and parental responsibilities have traditionally identified only
two parents, there is a growing trend of allocation of parental status to more
than two adults. Furthermore, it seems that although the treatment of
multiparents varies from one jurisdiction to the next, from an empirical
standpoint the allocation of parental responsibilities to more than two
individuals is far more common"o 6 than an explicit recognition of
0 Moreover, in most cases
multiparents who have equal parenthood status.o'
in which multiparents were recognized, parental responsibilities were not
allocated equally; there were the primary parents with full parental
responsibilities and legally recognized parenthood, and secondary parents
with limited responsibilities.o

103. Id. §§ 44-45.

104. See, e.g, Re D (contact and parental responsibility: lesbian mothers and known
father) [2006] EWCA (Fam) Civ 285 (Eng.); A v. B and Another [2012] EWCA Civ 285
(Eng.); Re WB (children) (contact) [2011] EWHC (Fam) 3431 (Eng.).
105. Mali Kempner, Children Under Contract, (2012, 04:48), reshet.tv/Shows/
Hasipur/videomarklist,200555 (last visited Feb. 19, 2016).
106. See supra notes 79-82 (referencing the case in England, Israel, Louisiana and
Pennsylvania).
107. See Brinkman, supra note 83; Brinkman, supra note 84 (noting the Miami ruling
recognized three adults as having the same parenthood status, but not the same rights and
responsibilities, whereas in Ontario and California full equal recognition was made
possible).
108. See supra notes 81-83.

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434 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4
VI. RECOGNITION VS. REGULATION: SUGGESTION FOR NORMATIVE
GUIDELINES
In those jurisdictions where multiparents are legally acknowledged, the
child's best interests are the leading consideration when allocating parental
status. Yet, it is far too ambiguous to act as sole guiding principle. That
said, a bright-line rule should be avoided while striving to accommodate
multiparental families, as it will ultimately lead to non-recognition of some
of these family structures. Therefore, the question remains - what should be
the criteria for the recognition of multiparents?
Katharine Bartlett argues that multiparents should be recognized if: (a) the
parents are not married; (b) they initiate the relationship out of the child's
best interests; and (c) they fulfil the functional and psychological roles of
parents. 109 Her approach revolves more around the regulation of
multiparental family structures than simply their recognition. Bartlett
supports legal acknowledgement of multiparents, but only for those who fit
her criteria. If this approach was adopted, a married lesbian couple could not
be awarded parental status alongside the sperm donor, even if they intended
the latter to take an equal parental role. Thus, Bartlett's approach fails to
capture all multiparental family structures.
Similarly, Alison Young argues that multiparents should have legal status,
regardless of their marital status, but that parents must be divided into
primary and secondary caretakers.110 This means that one or two primary
caretakers will have parenthood status and full parental responsibilities,
while the secondary caretakers will have only limited parental
responsibilities."' Hence, Young's approach allows for more multiparental
family structures to be acknowledged than Bartlett's. However, the
distinction between primary and secondary carers is problematic. First, it
ignores family structures, in which the division of parental responsibilities is
intentionally unequal. Second, it echoes the gendered flaws of the

109. See Rethinking Parenthood, supranote 5, at 944, 946, 948.

110. Alison Young, Reconceiving the Family: Challenging the Paradigm of the
Exclusive Family, 6 AM. U. J. GENDER, Soc. POL'Y & L. 505, 515-18 (1998). A similar
argument is made by Jane Carbone and Naomi Cahn, who claim that there should be a
presumption for a hierarchal multiparental family model that could be rebutted if there
is a pre-birth agreement to have equal status coupled with post-birth equal sharing of
child-raring burdens June Carbone & Naomi Cahn, Parents, Babies, and More Parents,
92 CHI.-KENT L. REV. 9, 46-7 (2017).
I11. Similar approaches, which support recognition of multiparents only if a
hierarchy of parental rights and responsibilities exist, have been argued by the following:
Kavanagh supra note 50, at 95, 114-17; Bionormativity, supra note 5, at 655; Kessler,
supra note 56, at 74-75; Why Just Two?, supra note 5, at 312-13, 334-35.

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2017] A FAMILY IS WHAT YOU MAKE IT? 435

heterosexual family structure, in which women are the primary carers and
men are the secondary carers. 112 Third, even if there are primary and
secondary carers, it does not mean that their rights and obligations should be
different - as is the case in heteronormative family structures.
The difficulties arising from a strictly hierarchal approach have led some
scholars to suggest that we should strive to identify the family structure
without conforming it to a specific ideal.1 13 By acknowledging both
hierarchal and egalitarian multiparental family structures, the law could
accommodate the wide range of multilarental families, thus ensuring
equality, autonomy, and the child's best interests. Therefore, it is necessary
and warranted that the approach through which parental status is allocated
should be able to cater for the needs of the entire spectrum of multiparental
families. Thus, there should be no a-priori restriction on the form and
substance of the multiparental family.
Furthermore, examining the five approaches to the allocation of parental
status suggests that only the intention-based approach can correctly capture
all types of multiparental families. The marital status approach and the
genetic/biological approaches for allocation of parental status are out of sync
with current social realities and medical advances. Considering the vast
numbers of children who are born out of wedlock, and the fact that not all
couples can (or want to) marry, relying solely on the marital presumption
seems unpractical and discriminative. 114 Furthermore, ART and adoption
illustrate that the fact that a genetic or biological connection exists between
an individual and a child is not sufficient or necessary for the determination
15
of parenthood and parental responsibilities.s This does not mean genetics
and biology should have no role at all, but in the context of multiparents they
should not be the ultimate criteria.
Similarly, the functional and psychological approaches for the allocation
of parenthood and parental rights provide less stability and predictability for
parents and children due to their confined nature. Functional and
psychological parenthood can only be established post-birth and after a
significant period of time.' 16 Moreover, under these approaches the

112. See Appleton, supra note 27, at 65-67; Dowd 2007, supra note 60, at 235-36;
Murray, supra note 48, at 453.
113. See Appleton, supra note 27, at 58-59; Dowd 2007, supra note 60, at 246-47.
114. See, e.g., Response: And Baby Makes, supra note 27, at 2048.
115. See Id. at 2048-49.
116. In re Thomas S. v. Robin Y., 618 N.Y.S.2d 356, 362 (N.Y. App. Div. 1994), app.
dismissed, 86 N.Y.2d 779 (1995); Storrow, supra note 22, at 640; Applying Intent-Based
Parentage,supra note 26, at 437-38.

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436 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

relationship with a legally unrecognized parent can be severed by the legally

recognized parent, thus undermining his or her legal standing in the eyes of
the courts and compromising the child's best interests.' 17 This is especially
true for multiparental families, in which not all intended parents necessarily
share the same functions or have equal psychological attachment with the
children.' 18 Without giving effect to the multiparents' intentions, non-
recognized parents are at risk of losing their parental status both by state
intervention and in cases where the relationship with the legally recognized
parents becomes unsettled. 19
Conversely, the intention-based approach can capture the various
categories of relationships that are characteristic of multiparental family
structures. 120 It can capture both pre- and post-birth intent,12 1 and it is not
limited to a set number of parents, or to a strict hierarchal or egalitarian
family structures. Additionally, by overlooking the intent of the individuals
who are acting as parents, a different family structure is imposed on them.
This imposition infringes on the family's autonomy, and in some regards
their privacy, since the family becomes a matter of public debate, where not
just the best interests of family members are considered but also societal
interests. 122 Hence, the family members' dignity is infringed, as the family.
structure is condemned to be unrecognized by the law and therefore
perceived as illegitimate by society.1 23 Consequently, multiparental families
are not only devoid of rights, they are deprived of honor and respect.
Therefore, the intention-based approach provides better protection to the

117. Robert E. Rains, Three Parents?Jacob v. Shultz-Jacob, 923 A.2d 473, 2007 Pa
Super Lexis 957 (PaSuper 2007), 20 DENNING L.J. 197, 207 (2008).
118. Kinsey, supranote 8, at 336-39.
119. See cases cited supra note 74.
120. Yebezkel Margalit et al., The New Frontier of Advanced Reproductive
Technology: Reevaluating Modern Legal Parenthood, 37 HARv. J.L. & GENDER 107,
110, 137 (2014).
121. Applying Intent-BasedParentage, supra note 26, at 437-39.
122. See Zvi Triger, Introducingthe PoliticalFamily: A New Road Map for Critical
Family Law, 13(1) THEORETICAL INQUIRIES L. 361, 374-75 (2012). Contra Frances E.
Olsen, The Myth of State Intervention in the Family, 18 U. MICH. J.L. & REF. 835, 835
(1984) (criticizing privacy as ajustification for non-intervention).
123. MAX RHEINsTEIN, The Family and the Law, in 4 INTERNATIONAL ENCYCLOPEDIA
OF COMPARATIVE FAMILY LAW 13 (2004); Glendon, supra note 20, at 9-10; Marjorie
Maguire Shultz, Reproductive Technology and Intent-based Parenthood: An
Opportunityfor Gender Neutrality, 1990 Wis. L. REv. 297, 299-301 (1990); Jonathan
Lawrence Hill, What Does It Mean to Be a "Parent"?The Claims ofBiology as the Basis
for ParentalRights, 66 N.Y.U. L. REV. 353, 388-89 (1991).

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2017] A FAMILY IS WHAT YOU MAKE IT? 437

family members' dignity and autonomy, and consequently the child's best
interests, 124 notwithstanding the fact that it provides better legal certainty in
the determination of allocation of parental status.
Yet, some might criticize the intention-based approach as not being clearly
structured, and thus it is open to different interpretations by the courts.
Subsequently, it could be argued that the intention-based approach will fail
125
to provide sufficient predictability and security for multiparental families.
In this respect the genetic/biological approaches and the marital presumption
approach are both clearer and more decisive. Still, due to the many possible
variations of multiparental families, an open and flexible norm is more
adequate than a strict, bright-line rule. Moreover, the ability to identify
intentions - be that by means of a written contract, implied contract, or other
methods of deduction - makes an intention-based approach not as vague as
can be imagined on first sight.
Another argument that has been made against the application of the
intention-based approach is that the courts should refuse to enforce parenting
contracts due to public policy considerations. 12 6 The argument is that
parental status should not be viewed as a commodity that can be negotiated
and conferred via agreements,127 and that non-recognition of such
agreements can prevent cases in which fathers are trying to relinquish their
parental responsibilities. 128 Considering that in most families there is a

124. Bamforth, supra note 74, at 55-58; Goodman, supra note 59, at 36; Hill, supra
note 123, at 364, 403-04; Melanie B. Jacobs, ParentalParity: IntentionalParenthood's
Promise, 64 BUFF. L. REV. 465, 465 (2016); Nancy Polikoff, From Third Parties to
Parents: The Case of Lesbian Couples and Their Children, 77 L. & CONTEMP. PROBS.
195, 220 (2014).
125. Appleton, supra note 27, at 54; Jon Elster, Solomonic Judgments: Against the
Best Interest of the Child, 54(1) U. CHI. L. REV. 1, 11-21 (1987); Robert H. Mnookin,
Child-CustodyAdjudication: JudicialFunctions in the Face ofIndeterminacy, 39 LAW
& CONTEMP. PROB., 226, 260 (1975); Storrow, supra note 22, at 639-40.
126. See Deborah Zalesne, The Contractual Family: The Role of the Market in
Shaping Family Formations and Rights, 36 CARDOZO L. REV. 1027, 1050 (2015).
127. Similar arguments were made in the context of adoption and surrogacy. See
Elizabeth S. Anderson, Why Commercial Surrogate Motherhood Unethically
Commodifies Women and Children: Reply to McLachlan and Swales, 8 HEALTH CARE
ANALYSIS, 19 (2000); China, and Children as a Commodity, L.A. TIMES (Jan. 31, 2010),
http://articles.latimes.com/2010/jan/31/opinion/la-ed-china31-201Ojan31; Geoffrey
York, Profit-DrivenAdoptions Turn Children into a Commodity, GLOBE & MAIL (May
29, 2012), www.theglobeandmail.com/news/world/profit-driven-adoptions-turn-
children-into-a-commodity/article4217172/.
128. Budnick v. Silverman, 805 So. 2d 1112, 1113 (Fla. Dist. Ct. App. 2002);
Ferguson v. McKiernan, 855 A.2d 121, 122-23 (Pa. 2002); Bionormativity, supra note

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438 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

power imbalance between the family members, 12 9 parental agreements could

lead to less than satisfactory results.
Nonetheless, in cases where the intention of the multiparents was at the
heart of the dispute, the courts have encouraged the use of parental
agreements as a means to ensure that both the parties and the courts have a
better understanding of the relationship at hand. 1 30 Furthermore, in ART
several courts and legislatures have given effect to such agreements,131 and
in fact many forms of ART will be rendered impossible if public policy was
indeed to rule out the possibility of using parental agreements. For instance,
sperm donors will necessarily be considered as the fathers, and surrogates as
the mothers. Accordingly, the more concerning matter of public policy is
the prevention of an unbridgeable gap between those legally recognized as
parents and those who are actually fulfilling this role. In addition, contracts
regarding parenthood and parental rights are not the only contracts that are
enforceable in the context of family law. Property division agreements are
held valid and enforced in some jurisdictions.1 32 Indeed, contract law and

5, at 701-02. But see Joseph Cullen Ayer, Legitimacy andMarriage, 16(1) HARv. L. REV.
22 (1902).
129. Murray, supra note 48, at 445.
130. Re D (contact and parental responsibility: lesbian mothers and known father)
[2006] EWCA (Civ) 285 (Fam) (Eng.); A v. B and Another [2012] EWCA (Civ) 285
(Eng.); Re WB (children) (contact) [2011] EWHC 3431 (Fam) (Eng.).
131. They recognized, for example, that a sperm donor only provides the genetic
material, and has no other legal connection with the child. See, e.g, Family Law Act,
S.B.C. 2011, c. 25 § 24 (Can.); Family Law Act, S.A. 2003, c. F-4.5 § 7 (Can.); HFEA
§ 35-41 (Eng.); Quebec Civil Code, S.Q. 1991 § 538.2 (Que.). Furthermore, in a number
of common law countries, and in the Netherlands, allocation of parental responsibilities
by agreement is allowed regardless of sex and number of other individuals who have
those responsibilities. See, e.g., Family Law Act 1975 § 61D(s), 64C (Austl.); In re Mark:
an application relating to parental responsibilities, [2003] FamCA 822 [Austl.]; Children
Act 1989, c. 41, § 2, 4A (Eng.); Civil Partnership Act 2004, c. 33, § 75(2) (Eng.); Care
of Children Act (2004) § 23 (N.Z.). However, Denmark, Finland, Iceland, Norway and
Sweden, for example, do not give effect to such agreements. NORDFORSK, LEGISLATION
ON BIOTECHNOLOGY IN THE NORDIC COUNTRIES - AN OVERVIEW 7-8 (2014).
132. See, e.g., Family Law Act 1975 § 90A-C (Austl); Family Law Act, R.S.O. 1990,
c F.3, § 52 (Can.); Property Relations Act 5773-1973 (Isr.); Hall v. Hall, 222 Cal. App.
3d 578, 578 (Cal. 1990). However, not all jurisdictions enforce these agreements. For
example, in England they cannot be enforced unless a court makes an order that reflect
the terms of the agreement; and this will not be done if the agreement is unfair.
Radmacher v. Granatino [2010] UKSC 42, [2011] 1 AC 534 (Eng.). Nonetheless, the
Law Commission has recommended that legislation be introduced to make pre-nuptial
and post-nuptial agreements enforceable. THE LAW COMMISSION, MATRIMONIAL
PROPERTY, NEEDS AND AGREEMENTS 27 (2014).

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2017] A FAMILY IS WHAT YOU MAKE IT? 439

notions derived therefrom are used in family law, and such use should not be
disqualified a prioriin the context of parental recognition.
It should be noted that parental agreements do not apply contract law
notions as if they are pure commercial transactions. There are considerations
that are unique to the family law context that influence contractual
obligations, namely the child's best interests. 133 It is this principle that
determines how notions such as enforcement, mistake, deception- and
withdrawal should apply - if at all. For example, prior to conception it seems
unreasonable to enforce a parenting agreement, forcing an individual to
provide genetic material or carry a child. 13 4 However, post-birth it might be
reasonable to enforce a parenting agreement. This could result in paying
child support, visitation rights, or even recognition of parenthood and full
parental responsibilities, depending on the particular circumstances.
Similarly, post-birth an individual cannot unilaterally withdraw from the
parenting agreement, thus causing the loss of her or any other individual's
parental status. The intentions of the parents culminate in the conception of
the child, and in this sense the conception makes the agreement binding not
just between the intended parents but also, and more importantly, between
them and the child.
Considering all of the above-mentioned arguments, the intention-based
approach is preferable. It promotes dignity and autonomy by preventing the
imposition of an ideal family structure on an existing family unit. Moreover,
it provides greater security and predictability to the family members, as they
can trust that their intentions will be respected and awarded legal meaning.
Lastly, such an approach is better equipped to deal with the realities of
contemporary society, in which there is no singular family structure. The
adoption of an intention-based approach is, in a sense, an "organic"
development, stemming from the shift from genetics, biology, and marriage
as the main indicators for parenthood and parental responsibilities.1 35 There
may very well still be the possibility that more than two individuals will
claim exclusive parental rights,' 36 and the court could decide whether such
rights should be awarded exclusively to one, two, three or more individuals.
However, this does not mean that in each and every family there will be more
than two parents.

133. Zalesne, supra note 126, at 1081.

134. See, e.g., HCJ 4077/12 Plonit v. Minister of Health (Versa, 2013) (Isr.) (noting
the specific decisions of Justice Robinstein in paragraphs 48-52 and Justice Amit in
paragraphs 14-26).
135. Kinsey, supra note 8, at 306-07.
136. id at 333-34.

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440 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

Note, the allocation of parental status should be addressed differently

depending on two factors: First, is there agreement or disagreement among
the multiparents in regard to each-other's parental status; and second, the
timing in which the allocation of parental status is requested - pre-birth, post-
birth, or post a stage of maturity, in which the child is mature enough to
express her opinion. The figure below clarifies how these two factors
influence the allocation of parental status.

Intent of multiparents Intent of

multiparents and
Agreement child
over rights Conception Birth Maturity

Conception Birth Maturity

Disagreement
over rights Pre-conception intent, unless Equal weight to pre-conception intent ILittle weight to pre-
child's best interests indicate and child's best interests conception intent;
L that it would be detrimental i emphasis on child's
hest intrest

It is reasonable that as long as there is agreement between the family

members about the parental statuses, the state's intervention should be
minimal. Pre-conception, the intent of the multiparents should determine
each parent's status, rights, and obligations. In this scenario, individuals can
both opt in or out of parental status. Take, for example, a situation in which
there is a sperm donor and a lesbian couple. Pre-conception, the couple and
donor could agree on any form of division of status, rights, and obligations.
The family model could be egalitarian, hierarchal, and there might even be
situation in which both the sperm donor and the non-genetic mother have no
parental standing. Similarly, post-conception but pre-maturity, it is possible
for an additional individual to opt-in to multiparenthood. Again, the state
should not regulate multiparental families, but merely recognize them. This
is the case as maintaining minimal intervention will promote the
multiparental family members' equality, preserve their autonomy, and
ensure the child's best interests. When the child reaches maturity and
additional individuals wish to opt-in to multiparenthood, her intentions must
also be considered. However, if some of the multiparents wish to opt-out of
their status at any point past conception, the state must regulate this scenario,
even if there is agreement among the family members. Unlike opting in to
multiparenthood, opting-out could risk the child's best interests. Therefore,
it cannot simply be a matter left at the hands of the family members. This
notion is not unfamiliar. When individuals wish to give a child up for

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2017] A FAMILY IS WHAT YOU MAKE IT? 441

adoption, change custody arrangements or child support, the state regulates

the process to ensure the child's best interests are protected. These are
instances of single or dual parents opting-out, and states are already
experienced in dealing with these situations. Therefore, there is nothing
novel in applying the same logic and treatment to the multiparental family.
The story is quite different if there is disagreement about the parental
statuses. Under these circumstances, the child's best interests might be at
risk, thus state intervention and regulation may become necessary and
justified.1 37 That said, such intervention and regulation is not unique to
multiparental families. Indeed, whenever there is disagreement about
parental status courts intervene to protect the child's best interests - whether
it is a "traditional" family structures or not. 38
That said, it would be wise to apply a somewhat different treatment to
disputes that occur pre-birth, post-birth, and post-maturity. Pre-birth, the
main consideration should be the multiparents' pre-conception intent, and
the child's bests interests should be a secondary factor. The reason is
twofold. First, pre-conception intent is preferable to pre-birth intent. By
choosing the former over the latter it becomes possible to identify who
intended - explicitly or implicitly - to bring the child into the world. Hence,
it is justified to bind these individuals according to their initial intent, as it
will ensure the child's best interests as well as equality between the
multiparents. The justification is not as strong when it comes to pre-birth
intent, as in such a case the individuals who were not a part of the conception
process are not on equal footing with those who were.139

137. Cf Ferguson v. McKiernan, 855 A.2d 121, 123 (Pa. 2004).

138. Scherpe, supra note 18, at 211 (noting that state regulation is intended to protect
the weaker family members, primarily the child, but also other parents. However, by
doing so it infringes the family members' autonomy. It has been suggested that in such
instances it will be justified infringing the right to autonomy if the need to protect the
weaker party is significantly stronger).
139. Consider the following examples. In an open adoption multiparental family
structure there are the genetic and biological mother, and two adoptive parents. In most
cases, the genetic and biological mother has pre-conception intent, while the adoptive
parents do not. If before the child is born the mother changes her mind, and decides not
to give the child up for adoption, it hardly seems justified to compel her to do so. The
adoptive parents, in such a scenario, have less of a standing against the genetic and
biological mother, as they do not have pre-conception intent. In contrast, imagine a
multiparental family structure that is established through ART. This family includes a
genetic father, his spouse, and a biological mother, while the egg donor is not intended
to be the genetic mother. Under this description, all three have pre-conception intent even
though the spouse has no genetic or biological link to the child, and it therefore justified
to impose on all three the parental status they intended to hold.

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442 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

Second, the multiparents' pre-conception intent should be adhered to only

to the extent that such adherence will not be detrimental to the child, in which
case the child's best interests should guide the courts in the allocation of
parental status. Note, from the perspective of the child and her best interests,
the family unit has not crystallized yet; the child has not become dependent
upon or attached to any individuals. In these cases it is important to protect
the weaker party without forcing a foreign ideology on the family unit by
fitting it in a family structure that resembles a "traditional" structure.1 4 0 This
could be done even if the resulting family unit is composed of a single parent,
same-sex parents, or multiparents.
Conversely, post-birth but pre-maturity, the child's best interests vary
substantially, since she might have grown attached to (or dependent on) all
the individuals who fulfilled parental roles during her upbringing. Hence,
there is greater justification to focus equally on the multiparents' pre-
conception intent as well as the child's best interests.
Last, in post-maturity the weight of the multiparents' pre-conception
intent should be small, and the emphasis should be placed on the child's best
interests. When disagreement about parental status arises in this stage of a
child's life, after many years of parental care, the initial pre-conception
intentions seem almost irrelevant. Rather, it is the actual parenting that took
place, as well as the emotional bonds between the family members, should
guide the courts in determining the parental status. At this stage, the courts
need to consider not only the multiparents conception of the family structure,
but the child's understanding of it too.
Following the suggestions outlined above will allow courts and
legislatures to capture, and cater for, the five categories of multiparental
families: ART, co-parenting, stepfamilies, open adoptions, and kinship
carers. This is true regardless to these families' intent on being egalitarian
or hierarchal. As such, these suggestions provide extensive protection to
both the integrity of the family unit and the child's best interests.

140. Coupet, supra note 8, at 649 (explaining such a balance of contrasting rights
already exists in ART where, for instance, a sperm donor or a surrogate mother are not
considered parents although they have a genetic or biological connection to the child);
e.g., N.H. REv. STAT. ANN. § 168-B:12 (2015); Family Law Act B.C. § 24; Family Law
Act, S.A. 2003, c. F-4.5 § 7 (Can.); Qu6bec Civil Code, S.Q. 1991, c. CCQ, § 538.2
(Can.); Assisted Human Reproduction Act, S.C. 2004, c. 2, § 3 (Can.); Children's Act
2005, c. 19 § 297(1) (S. Afr.); Surrogacy Arrangements Act, 5756-1996 §§ 10-12 (Isr.);
Family Code of Ukraine 2002 § 123(3) (Ukr.); see HFEA §§ 35-41 (Eng.). Compare
HFEA § 33 (Eng.), with NORDFORSK, supranote 130, at 8.

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2017] A FAMILY IS WHAT YOU MAKE IT? 443

VII. CONCLUSION
This paper analyzed the legal attitudes regarding recognition and
regulation of multiparents, and suggested a new approach to this issue. It
was illustrated that some courts and legislatures have begun allocating
parental statuses to multiparents. Yet, conferring parental status to
multiparents could be described as a spectrum - from merely recognizing the
social label of parents, through the allocation of parental responsibilities, to
a recognition of parenthood status. Arguments opposing conferring legal
status to multiparents were confronted and dismissed. A new approach to
the recognition of multiparents was suggested, which is guided by the
multiparents' intent and the child's best interests. Particularly, it was
suggested that recognition of multiparents should not be confined to any
particular family structure, but rather it should provide for a spectrum of
recognition and regulation in order to accommodate the various forms of
multiparental families and thus guarantee the child's best interests.
The nexus between changing social norms and legal advances is strong.
Changing social norms necessitate legal advances; 14 1 and legal advances
have an impact on social norms and institutionsl42 such as the family, even
if this impact is somewhat limited. The recognition of multiparental family
structures is a good example of this nexus. The growing number of
multiparental families has led to the unavoidable need for their recognition,
and at the same time such legal recognition may encourage multiparental
families to form.
This paper demonstrates that the allocation of legal parental status to
multiparents is an expanding phenomenon, emerging in different countries
and continents, promoting social and normative change while protecting the
most fundamental and influential aspect of every person - family life. Only
14 3
time will tell if, when, and how other jurisdictions will join this trend. It

141. See Glendon, supranote 21, at 4; Haim Abraham, Parenting,Surrogacy, andthe

State, 9 HEBREW U. J. OF LEGIS. 171, 200 (2017).
142. Eden Sarid, Don'tBe A Drag, Just Be A Queen-How DragQueens Protect their
IntellectualProperty without Law, 10 FIU L. Rev., 133, 179 (2014).
143. Recently, Ontario passed a bill that allows for the recognition of up to four
multiparents from birth without a court order, if they have signed a pre-conception
parentage agreement. All Families Are Equal Act (Parentage and Related Registrations
Statute Law Amendment), S.O. 2016 c. 23 § 9-10 (Can.). Furthermore, if the child was
conceived through surrogacy a court can declare she has more than four multiparents. Id
§ 11. Soon, Australia might also recognize multiparents, as the Family Law Council
advised the federal government to recognize more than two legal parents. See generally
FAMILY LAW COUNCIL, REPORT ON PARENTAGE AND THE FAMILY LAW ACT (2013). The
Netherlands might also be joining this trend. A recent report submitted to the

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444 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 25:4

is already clear that multiparental families have the potential to change how
we think about what it means to be a family.

Netherlands' Minister of Justice advocates conferring parental status to up to four legal

parents, who together form a maximum of two separate households. CHILDREN SHOULD
BE ABLE TO HAVE UP TO FOUR LEGAL PARENTs: REPORT DUTCHNEWS.NL (2016),
www.dutchnews.nl/news/archives/2016/12/dutch-family-law-needs-overhauling-to-
reflect-multi-parent-families-report (last visited Oct. 24, 2017).

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