The Intended Parent: The Power and Problems Inherent in Designating and Determining Intent in the Context of Parental Rights

This Article seeks to consider and discuss the intent to parent and, particularly, the use of the words intent and intentional in the context of assigning legal parental rights. Problems and preferences have arisen from the use of this paradigm and the notion that intent can be fixed at any one point in time. This Article discusses how this historical use of intent and intentional parenthood may impact the evolving field of parental form, considering whether we will carry forward some of the same problems and preferences into newer forms of the assignment of legal parental rights. The Article first frames the concept of who is a parent, and how that decision is made from a legal standpoint under a traditional analysis. Next, the Article discusses some of the problems that have arisen both in the traditional assignment of parental rights, by and among heterosexual married and unmarried parents, assisted reproductive technology, and open adoption. The Article then moves into an assessment of more modem issues of assignment of legal parental rights by examining four distinct cases involving known donors in assisted reproductive technology. After highlighting some of the pitfalls of the application of the intended/intentional parent paradigm in more modern conceptions of both childbirth and marital status, the Article considers how new legislation seeks to address these problems by highlighting a new family law enacted in British Columbia and a new statute in California. The Article also points out how newer known donor assignments of rights already have a predecessor in the form of open adoption. Finally, the Article argues that if we do not pause and consider the impact of how we have assigned legal parenthood in the past through intent, we may be destined to repeat many of the same mistakes, and we risk carrying forward prejudices and preferences that are inappropriate given the realities of both modem reproductive technology and modern family status