50:5 An Empirical Analysis of the Use of the Intent Test to Determine Parentage in Assisted Reproductive Technology Cases


Twenty-four years ago, Professor Marjorie Shultz introduced the intent test as a means to determine parentage of children conceived via assisted reproductive technology (ART). According to Professor Shultz, when a child is conceived via ART, the person(s) that intended to bring the child into the world and raise the child should be the child’s legal parent(s). Only three years after the publication of Professor Shultz’s article, the California Supreme Court applied this “intent test” in Johnson v. Calvert. In Johnson, both the surrogate that gestated the child and the woman that provided the egg used to conceive the child claimed to be the child’s legal mother. The court held that the genetic mother was the legal mother because she was the woman who, when the child was conceived, intended to raise the child. Since then, every model act that has been drafted in the United States to address issues that arise when children are conceived via ART has incorporated the intent test to determine legal parentage.

Unfortunately, states have been slow to adopt these model acts, or to draft ART legislation of their own, leaving most parents of ART children without a clear path to obtain legal parentage. As a result, when a child conceived via ART is born, the adults involved must turn to the courts to make a determination as to legal parentage. These courts have used a variety of approaches to determine legal parentage in ART cases, which—along with the inherent discretion involved in judicial decisions absent clear precedent or statute—has led to unpredictable, and sometimes inequitable, findings regarding parentage of ART children. This Article seeks to uncover what bases courts have used to determine parentage of ART children and whether courts have, perhaps unwittingly, developed a consensus as to how to best determine parentage of children conceived via ART.

This Article provides the results of a first-of-its-kind study of every case on Westlaw addressing parentage of ART children. Each case was coded and analyzed based on what test the court used to determine legal parentage of an ART child and what factors of each case were statistically significant in making that determination. The empirical evidence demonstrates two facts: (1) courts have used five different tests to determine parentage of ART children; and (2) regardless of the test used by the court, in over 74% of the cases, the outcome of the case was the same as if the intent test had been used.

Part II of this Article describes the methodology of the study, including how the relevant cases were identified and how those cases were coded and analyzed. Part III identifies the various tests courts have used to determine parentage in ART cases. This Part also describes each test and provides examples of how courts have applied each test. Finally, Part IV presents the data, noting which aspects of the cases were statistically relevant to the courts’ determinations and demonstrating courts’ tendencies to vest legal parentage in the intended parents, even if the court does not apply the intent test by name.