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Who's Your Momma, Who Are Your Daddies? Louisiana's New Law of Filiation

I. Introduction

A Louisiana State Law Institute project that commenced in 1991 with meetings of the Marriage/Persons Committee culminated in the enactment of a series of new Civil Code articles in 2005. The new articles both reshape the organization and arrangement of articles on proof of filiation,1 and respond to the challenges left in the wake of decisions by the United States and Louisiana Supreme Courts in the mid-1970s and early 1980s.2 To a lesser extent, the articles also respond to challenges presented by the cutting-edge issues of assisted conception and reproduction.3

Just one year after the legislature enacted these new articles, it enacted implementing legislation contained in Act of the Louisiana Legislature No. 322 of 2006, which made changes in complementary legal provisions governing proof of filiation necessitated by the previous year's enactment. During the 2006 regular legislative session, negotiations over the implementing legislation with the Department of Social Services revealed the full extent of the current federalization of state family law and federal intervention into policy decisions historically reserved to the states.

This article will explore the policy decisions that shaped the new Civil Code articles on proving filiation, both during Law Institute Marriage/Persons Committee meetings and Council meetings, as well as during the two-year legislative process. Two other articles in this issue concentrate on different aspects of the same revision: a detailed article-by-article analysis and critique of the new law by a member of the Marriage/Persons Committee,4 and an examination of the new articles permitting a mother, for the first time and subject to restrictions, to contest the paternity of her husband.5 To assist in a discussion of the policies underlying many of the more significant changes, there are three appendices attached to this article: first, two reports of the legislative Task Force on Assisted Conception ("Task Force");6 second, the document distributed at the Law Institute Council ("Council") meetings posing the issues surrounding the judicial recognition of "dual paternity";7 and third, a document prepared during the 2006 legislative session by Jim Carter, staff attorney for the Law Institute, that dissects mandatory federal legislation to which he then correlates a list of pertinent Louisiana statutes constituting compliance.8

For the Law Institute's Marriage/Persons Committee, Act of the Louisiana Legislature No. 192 of 2005 represents fourteen years of concentrated work. Meetings at which the topic of filiation were discussed began in 1991. By far the most controversial and difficult issue discussed was dual paternity, considered by the Law Institute Council on six separate occasions. When and under what circumstances should a child whose filiation is established be permitted to establish that a second person is his biological father, and what should the legal consequences be? Many of those meetings ended with the Council's having reached a result that conflicted with the result reached at a previous meeting. Because the legislature created the Task Force on Assisted Conception, the bulk of those legal issues were bypassed at the Law Institute. Nonetheless, for the first time, the Civil Code now contains an article identifying the mother of the child,9 unnecessary practically before the development of techniques for assisted reproduction such as in vitro fertilization and gestational and/or genetic surrogacy. Yet, of all the lessons learned in the enactment of both the substantive law of filiation and its implementing legislation, the most salient is the extent to which the federal government now regulates the subject matter of family law, traditionally reserved to the states. It does so rather directly with "strings" attached to federal funds in the form of requirements imposed upon state law, and less directly by administrative regulations and interpretations of state and federal law by the federal agency's attorneys. The average American would find the extent of federal intrusion remarkable, especially as authorized during the administration of a Republican president.

II. Identification of Mother

For the first time the Civil Code of Louisiana contains language identifying the mother of a child as "the woman who gives birth to the child."10 The scientific developments in assisted reproduction that necessitated a definition of motherhood, or what common law authorities would describe as a "default" rule, receive recognition in the reference at the end of the same Civil Code article with the language "except as otherwise provided by law."11

Clearly, the vast majority of genetic mothers do indeed give birth to their children in Louisiana since enforceable contracts for paid genetic/gestational surrogacy...

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