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The Doctrine of Intentional Parenthood
GERI C. SJOQUIST*
Introduction
Family laws have become a patchwork of statutes that have been
made even more complex with the acceptance of same-sex marriage.
In Minnesota, the issue of equal rights for members of the LGBTQ
community came into focus with the issue of the right of LGBTQ people
to marry. On August 1, 2013, Minnesota became the twelfth state to
join in the recognition of same-sex unions. The headlines everywhere
read, “Love Won.”1 Although, the legislature may have been aiming for
equality, the provision that was carved out for same-sex couples to enjoy
of all of Minnesota’s other laws governing families and children, which
are primarily based on biology. In a 1994 case before the Minnesota Court
of Appeals,2 the court noted the possible staleness of biologically based
portions of the Parentage Act and encouraged the legislature to amend the
1. http://howlovewon.com/.
2. In re Welfare of C.M.G., 516 N.W.2d 555, 560 n.8 (Minn. Ct. App., 1994).
* Principal, Sjoquist Law LLC, St. Paul, Minnesota.
Published in Family Law Quarterly, Volume 52, Number 2, Summer 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
386 Family Law Quarterly, Volume 52, Number 2, Summer 2018
Act.3 Unfortunately, to date, it has failed to do so, leaving practitioners to
solve the riddles. The various issues related to the rights of LGBTQ parents
that are addressed in this Article are cropping up with greater frequency.
civil contract between two persons to which the consent of the parties,
the right of same-sex partners to marry,4 our state recognized the right
of LGBTQ persons and same-sex couples to become parents and raise
children.5 Looking at parentage through the lens of marriage has served
as a way to understand and legally recognize the intent to parent. By
enacting section 517.01, Minnesota attempted put an end to all sex-based
distinctions in marriage by choosing to provide for the domestic rights of
same-sex couples. In Obergefell v. Hodges,6 Justice Kennedy quoted from
with everything in common.”7
Married or unmarried, heterosexual or same-sex non-biological parents
whose children are created through assisted reproductive technologies
3. Id.
considerations has since made the search something more than a search for a biological
father. This is demonstrated by the fact that when the legislature added the presumption
established under the genetic test presumption, Minnesota Statute section 257.55-1(f)
(2016), it did not make that presumption conclusive, but, rather, treated it simply as the
sixth presumption. Thus, though “policy and logic” may originally have been directed at
how to measure the likelihood of biological parenthood, it now has a different objective.
We note that sections Minnesota Statute section 257.52 and Minnesota Statute section
fashion. . . . Accordingly, we believe that the legislature should remove these traces of the
original lodestar of the parentage act—that is, biological.
4. Same-sex marriage has been recognized if performed in other jurisdictions since July 1,
2013, and the state of Minnesota began issuing marriage licenses to same-sex couples on August
1, 2013.
children, Minnesota Adoption Resource Network, allows same-sex partners to adopt in identical
fashion to singles and opposite-sex partners.
6. 135 S. Ct. at 2584.
7. See CICERO, DE OFFICIIS 53 (W. Miller transl. 1913); Obergefell, 135 S. Ct. at 2613, app.
B.
Published in Family Law Quarterly, Volume 52, Number 2, Summer 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
