By:  LINDSEY O’NEILL, ESQ.

Media reports are swirling over the issue of who will get custody of Michael Jackson’s kids.  It could be a bit of a battle depending on a variety of things including what Michael Jackson’s will provides regarding guardianship of the kids, whether Michael Jackson’s mother (temporary guardian at this point) petitions the court for custody, and whether any other person(s) claim a legal right to custody of the children.  One of the issues that may impact the custody or guardianship proceedings is whether or not another person, such as Debbie Rowe (mother of Michael Jackson’s two eldest children), or the so-called unknown surrogate mother of Jackson’s youngest child, will dispute any guardian named in Jackson’s will and try to obtain custody respectively.   It can be a complicated, if not downright tricky, legal issue when children are born in, let’s say non-traditional, means.  And… unlike some tabloid reports, the person(s) named on a child’s birth certificate are not necessarily conclusively entitled to such custody.  Allow me to deconstruct: 

When a man and woman get married, conceive a child, the woman carries the pregnancy and gives birth to the child, the child is both biologically related to both the man and the woman and the woman gives birth to the baby – both “paternity” and “maternity” are clear.  Both the man and the woman have a “parent and child relationship” with the baby.  The woman’s name is listed on the birth certificate as the mother and the man’s name is listed on the birth certificate as the father. 

With adoption of a child, parental rights are also well-settled.  The man and the woman petition the court to adopt the child, to terminate the biological mother (and father’s when known) legal rights, and for the adoptive parents to become the legal parents.   A Court Report of Adoption is prepared which contains the child’s original birth name, etc. and the natural parents’ names, as well as the child’s new name and information about the adoptive parents.  Then, the child’s original birth record is sealed and a new birth certificate is prepared listing the adoptive father’s name as the father and the adoptive mother’s name as the mother. 

With surrogacy, the legal rights of all involved start getting a little tricky.  First, there are many different types of surrogacy.  A woman’s eggs can be harvested and fertilized by her husband’s sperm and implanted into another woman (surrogate), eggs can be donated by another woman, sperm can be donated, a woman can volunteering (or be paid) to be inseminated with a married man’s sperm in order to conceive and carry a child for a married couple,  etc.   Donors may be known or anonymous.  The most common types of surrogacy according to surrogacy.com are outlined below: 

• Traditional Surrogacy (Artificial Insemination) 
  An arrangement between the intended parents of the child and a woman who agrees to donate her egg(s) to be artificially inseminated with the sperm of the intended father. In most states the intended mother does a step-parent adoption after the birth in order to establish her parental rights and so that the surrogate will relinquish her rights regarding the child.
• Gestational Surrogacy
  An arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) and sperm of the intended parents. The child(ren) of gestational surrogacy is/are the genetic child(ren) of the intended parents, and the surrogate carries the embryo/fetus to term in the role of “host” uterus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.
• Donor Egg/Gestational Surrogacy
  Arrangement between the intended parents of the child and a woman who agrees to carry the embryo(s) made from the egg(s) of a third party donor (who is often anonymous) and sperm of the intended father. The surrogate carries the embryo/fetus to term as a “host” uterus since there is no biological tie between the surrogate and the embryo/fetus. In this form of surrogacy, the surrogate may also be called the “gestational carrier”.

In many states, the woman who gives birth to a child is presumed to be the mother and is thus named on the birth certificate as such.  With the increase of “assisted conception” and “third party reproduction” methods, however, some states may have regulations in place regarding naming the intended or biological mother on the original birth certificate.  On the father’s side, the intended or biological father may be able to “acknowledge” paternity and be named on the original birth certificate.  However, in many states if a surrogate is married, her husband may be “presumed” to be the father and thus listed on the original birth certificate.  Of course, these “presumptions” may be rebutted through evidence otherwise.

In California, the names of the father or mother listed on a child’s original birth certificate can be changed through a court order called an “Adjudication of Facts of Parentage.” A hospital or the Department of Vital Records can not change the names on a birth certificate without this official court order or “adjudication.”  To get the court order, the person(s) must petition the court, present facts about their situation, and the court must officially determine whether a “parent and child relationship” exists in order for the birth certificate to be changed. 

The Adjudication of Facts of Parentage (court order) must state the following:

1. 1. Specifically instruct the Department of Vital Statistics to remove the existing father and add the new father.
2. 2. Include the child’s date and place of birth as listed on his or her original birth certificate.
3. 3. If the child’s name is being changed, the full new name must be listed in the court order.

Given all of the above, the birth certificates of Michael Jackson’s children may not necessarily be the whole story.  Of course, they would be evidence of legal paternity and maternity.  Since the stakes are quite high in circumstances such as these – i.e. who will obtain legal rights to custody of a child – it is extremely important to seek the advice of an experienced attorney when contemplating assisted conception, third party reproduction, surrogacy, or other methods to create your family.  For more information, contact a family law attorney or a surrogacy lawyer.