By Tessa Redmond
Kentucky Today
Them Before Us, a global children’s rights organization dedicated to putting kids’ needs before adult desires, has released a first of its kind Children’s Rights Score Card. It is a tool seeking to clearly measure whether policies put children first or favor adult interests.
Katy Faust, founder of Them Before Us, said children are the most vulnerable members of society and deserve policies that protect them.
“For decades, we’ve passed laws that prioritize adult desires and called it ‘progress,’ while children bear the heavy cost,” Faust said.
Costs can be diverse and far-reaching. Children who grow up without both their mother and father are 20 times more likely to end up in prison, nine times more likely to drop out of high school and five times more likely to commit suicide.
“When lawmakers can clearly see where policies protect children and where they fail them, it creates real pressure to shift priorities and reshape laws so they truly support and uphold children’s rights,” Faust said.
Focusing on children’s rights to stability, identity and family connection in all 50 states and Washington, D.C., the scorecard examined four categories: parentage law, surrogacy regulation, boundaries around donor conception and in vitro fertilization (IVF) and marriage law.
Parenting language shifts, and attempts to redefine the family
Them Before Us analyzed whether states preserved “mother” and “father” language, whether parentage can be established on the basis of intent and whether more than two adults can be legally recognized as a child’s parents.
The report found that a growing number of states are removing terms like “mother,” “father,” “maternity” and “paternity” with gender-neutral alternatives. Seventeen states, including California, Connecticut and New Hampshire, have removed “mother” and “father” from some or all of their family laws.
Intent-based parentage—typically seen within the context of surrogacy and the use of assisted reproductive technologies—allows adults to sidestep the adoption process by establishing a child-parent relationship with a child who is not biologically related to them. Twenty-eight states allow parentage on the basis of intent.
Ten states currently allow courts to grant legal parentage of a single child to more than two adults, and eight more allow a third adult to become a “de facto” parent or have granted third-party parentage in certain circumstances.
How assisted reproductive tech intersects with children’s rights
There are two forms of surrogacy legally recognized in the United States.
Genetic surrogacy is when a child’s biological mother functions as the surrogate — her eggs are used alongside a donor’s or commissioning parent’s sperm. Gestational surrogacy employs a third party to carry an unrelated child through pregnancy—a child may be conceived using the commissioning parents’ sperm and eggs, donor sperm and eggs or some combination of the two and is gestated in the womb of another woman.
“Every surrogacy arrangement forces children to go through the trauma of maternal separation, usually within moments of birth,” the scorecard report noted. “While there is a lack of high-quality research on the long-term outcomes of children born via surrogacy, the clearly established body of research on maternal-fetal bonding and the impact of maternal separation tells us that this is not in the best interest of children.”
Only three states—Nebraska, Indiana and Louisiana—ban commercial surrogacy or void surrogacy contracts as unenforceable, and 22 more have not specifically regulated surrogacy. Commercial gestational surrogacy is legal in 25 states, and commercial genetic surrogacy is protected in 13 states. Five states ban genetic surrogacy.
Donor conception and IVF face minimal regulation nationwide
Only two states — Colorado and Oregon — ban donor anonymity. In four states, children can request identifying information about their donor parent once they turn 18, but data will be limited if those parents chose anonymity. In 43 states and Washington, D.C., birth certificates conceal a child’s biological parentage when that child is conceived using donor sperm or eggs.
Colorado is the lone state limiting donation frequency. Florida alone limits compensation for gametes (reproductive cells).
Three states — Colorado, Tennessee and Washington — have legislated a right to IVF, and three more have language that allows for an interpretation acknowledging such a right.
Six states and the District of Columbia have redefined infertility to include “social infertility,” which includes single adults and same-sex couples who are unable to conceive a child because they are not in a pro-creative relationship.
Marriage and the accessibility of divorce
Twelve states and Washington, D.C. have redefined marriage to include unions outside of one male and one female joining as husband and wife, either in constitution or in law.
“Decades of research confirms that children are most likely to thrive when raised by their married biological parents,” the report said. “When states recognize natural marriage instead of redefining it, they show that they understand that marriage law exists to bind children to their mother and father and bind mothers and fathers to the children they create.”
Nineteen states have removed fault-based grounds for divorce, and only nine states require a waiting period 6 months or longer before beginning the process of divorce or finalizing a divorce.
Twenty-four states require parental education about the impact of divorce on children in some jurisdictions or in some circumstances; only 11 require all divorcing parents to understand that impact. Washington, D.C. and 15 states do not require any education before the initiation or finalization of a divorce where children are involved.
Washington, D.C., received the lowest aggregate score; California, Hawaii, Maine and Washington state also scored an “F.” Nebraska, the highest-rated state, received an “A minus”—the only “A” nationwide.
Kentucky, ranked 4th nationwide, receives only a ‘B’ rating.
Kentucky was rated best for its parentage laws — they maintain language referring to mothers and fathers and do not have statutes or case law allowing for intent-based parenting or more than two parents.
Commercial genetic surrogacy is illegal in the Commonwealth, but there are no laws regulating commercial gestational surrogacy.
“While I’m thankful that Kentucky is a higher ranked state for children’s rights, we still have much work to do,” said David Walls, executive director of The Family Foundation. “I hope this scorecard will help Kentucky truly prioritize children over adult desires, strengthen families, and allow us to create a clear pathway for how to improve outcomes for children in our Commonwealth. We will not stop until children and their needs are made top priority in our parenting, surrogacy, assisted reproduction, and marriage and divorce laws so that Kentucky can be the leading pro-family state in the nation.”
Them Before Us identified donor conception/IVF and marriage as notable weaknesses for the Commonwealth.
Donor anonymity, donation frequency and donor payment are not addressed in Kentucky’s statutes. A child conceived by donor sperm or eggs will not have their biological parentage reflected on his or her birth certificate.
There is no right to IVF, and there are no statutes or case law codifying “social infertility” for non-procreative relationships.
Natural marriage is recognized in both the state constitution and laws.
Kentucky does not recognize any fault-based grounds for divorced, there are minimal waiting periods and parental education is not required statewide — only in certain legal circuits.
Jesse Green, legal counsel and policy advisor for The Family Foundation, says unregulated commercial surrogacy and no-fault divorce are the two most immediate areas the General Assembly needs to address in future legislative sessions.
“Children are not commodities to be bartered and sold, but that is what commercial surrogacy treats them as. And no-fault divorce has been a disaster for families in Kentucky and across the United States. Easy divorce has diminished the sanctity of marriage and created a culture where divorce is an easy way out of a marriage relationship, which has had a devastating impact on children caught up in divorce situations.”
Green said Rep. Nancy Tate’s bill regulating commercial surrogacy was “a long shot” this past session, “but we wanted to show our support for the policy and to create momentum for future sessions. Our hope is that we can make legislators realize how harmful commercial surrogacy is to children and women and convince them to put a stop to it in Kentucky.”
The Family Foundation also opposed House Bill 109, sponsored by Rep. Stephanie Deitz, which would have waived a 60-day waiting period in certain circumstances.
“Going forward, we will support efforts to reform no-fault divorce by increasing mandatory waiting periods and requiring counseling about the impact of divorce on children when kids are present.
Kentucky should embrace its position as a leader in children’s rights by becoming the gold standard state for policy in that incredibly important area,” Green said.
View the full Children’s Rights Scorecard here.