Children and Nontraditional Families

Melanie Jacobs works to establish legal recognition for nontraditional families.

Melanie B. Jacobs is a professor of law and the senior associate dean for admissions and international programs at the MSU College of Law. She works to establish legal recognition for nontraditional families and to educate stakeholders in the vagaries of family law as they pertain to parental rights. She has written in support of dual motherhood (now the law in almost 20 states) and laws that would recognize more than two parents (now recognized in California), and testified in state congress against the Michigan marriage amendment of 2004, which made it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. (In 2015, a Supreme Court ruling overturned all such bans on same-sex marriage.)

We sat down in June to talk about the work she is doing—how it benefits the community and how the experience informs her own scholarship.

The thing that you've been working on—establishing legal recognition for nontraditional families—how do you describe nontraditional families?

My work focuses on how to establish parentage once you're outside of the nuclear family. When I give a PowerPoint, I usually show a slide (and now I'm dating myself even more than I usually do) of "Leave It to Beaver," the Cleaver family. Now granted, it's not like that show was on when I was growing up, but the Cleavers are still part of my consciousness.

If you think about a married couple with children, it's really simple to figure out who the parents are, in part because of various legal presumptions that say the husband of a child's mother is the child's father. The marital presumption operates so that when you have children born in an intact marriage, you know that the woman who gave birth is the mom because she gave birth and she's the genetic mom. And if she's married her husband is the dad and it's really simple.

But that's getting completely upended in many different ways, because 50 percent of children born to women 30 and under are now born out of wedlock. In some instances, the woman is part of a couple. Maybe they are cohabiting, maybe they will get married, but there are a lot of single women giving birth. How do we deal with so many non-nuclear families?

There's also the legal complication of same-sex couples. The 2015 Supreme Court decision recognizing marriage equality does not answer all of the questions about parentage for same-sex couples. How do you navigate that space? And then there are assisted reproductive technologies (ART). In the example I gave, it's obvious who the mom is—she is the birth mother and the genetic mother. That isn't obvious anymore. I could be married but a gestational surrogate. My husband shouldn't be the child's legal father, I shouldn't be the child's legal mother. Someone else is. How do we then come up with rules, or how do we use existing rules, to come up with the appropriate arrangements?

Should each of these be addressed separately, or is the hope that there could be a single overarching law or philosophy to guide courts on all these issues?

Every scholar is different. Quite a number of scholars will focus just on rules for assisted reproductive technology, how to come up with the establishment for legal parentage in that context. Other people write a lot about nonmarital families. I did draft a proposal a year or two ago, published in 2016, that suggested one method of parentage for all these scenarios. I argued that we should use parental intent at birth to determine parentage. But it is imperfect because circumstances change and people's "intent" changes. It's really hard to have one perfect rule that fits all of these situations.

The variables are endless.

They are. And now, California is the first state to recognize more than two legal parents by legislation. Some courts had recognized more than two parents, but California has legislation that says you could have more than two legal parents. That opens a whole can of worms, but also can better protect children born to more than two adults who truly intend to parent the child.

So what does your engagement look like then? Because I understand you talk to a lot of different groups.

It comes in fits and spurts. I have several opportunities to talk with groups, and it's been really nice. Just last month, I spoke with two groups of physicians. I spoke with the Michigan section of the American College of Obstetricians and Gynecologists about the legal ramifications of ART. They know all the science. They can do lots of great things, but what happens after the science? What happens when you have that baby? I also gave a similar talk to a group in California, the Bay Area Reproductive Endocrinologists Society. The talk with the Michigan ACOG Group went well, because now I'm going to Grand Rounds at Sparrow Hospital to talk to the attendings and residents about these legal issues.

When you're giving talks, I would assume this opens up conversations with these folks. Do you learn from them as well?

I love that. It's so interesting, because of course I learn from them. It's sort of a reality check on both sides, right? It's useful for them to understand how their use of technology is impacting our society and what the effects are and what they need to consider. But it's also a good reality check for me with my scholarship—how the medicine influences the law—so that my arguments can be more realistic.

I taught Assisted Reproductive Technologies and the Law this past semester, and I had students writing about this issue and that issue. I was able to tell the physicians what was most intriguing to the law students, what they were most concerned about. Some of the physicians laughed and said, that's a great theoretical issue, but in practice, it's a one-in-a-thousand issue. Now I can bring that back to the students and tell them, "Here is what leading physicians are doing with this work, what leading fertility clinics in California have to say."