Establishing legal parentage, once a relatively straightforward matter of marriage and biology, has become increasingly complex. The determination of legal status as mother may now involve several women making claims based on genetic contribution, contract, status as gestational carrier or other bases. The debate about the best choice for children when adults are competing for parental status is ongoing, lively and filled with many voices. Less attention has been paid to a much larger, second category of cases - cases in which the law is faced with resolving the legal status of the one adult who may be available to serve as the legal mother or father. For mothers, these cases most often arise in the context of determining their legal status as biological mothers when the state has identified them as being at risk for abusing or neglecting their infant children. These cases almost always involve mothers or fathers who are poor, often members of minorities and usually without legal representation in parentage establishment and/or disestablishment proceedings. In these orphan cases, the governing rules or legal standards chosen by the legislature or courts will not be used to choose among potential parents; rather, the issue is whether anyone will serve as a child's parent.
This paper examines the laws that establish and disestablish the maternal rights of poor women. The paper examines patterns of state intervention in child abuse and neglect law that determines the legal recognition of motherhood for these women. It concludes that current child welfare rules and policies promote the loss of birth mothers in poor children's lives, often with no long-term maternal substitute for affected children. The paper also notes that focusing on parentage laws alone cannot preserve fit mothers in children's lives. Notwithstanding the limitations of this exercise, the paper highlights the policies that have removed mothers from their children and urges a shift in policy direction. Finally, the paper concludes with some principles to guide the formulation of parentage laws that have as their primary goal protecting poor children by keeping mothers in their lives.
Protecting Children by Preserving Parenthood, 14 Wm. & Mary Bill Rts. J. 969 (2005-2006) (Symposium Issue)