Updated National Uniform Parentage ACT (UPA 2017) Approved
Nov 13, 2017
Author: Courtney Joslin, J.D. and Jamie Pedersen, J.D.
Published in: ASRM News November 2017
Guest author Courtney Joslin, J.D., served as the official “reporter” for the UPA (2017) drafting committee and is a professor of law at UC Davis School of Law, where she teaches family law, employment discrimination, sexual orientation, and gender identity and the law. Jamie Pedersen, J.D., served as the chair of the UPA (2017) drafting committee, is a practicing attorney in Seattle, Washington, and chairs the Law & Justice Committee in the Washington State Senate.
Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.
Updated National Uniform Parentage Act (UPA 2017) Approved
In July 2017, the Uniform Law Commission approved a new version of the Uniform Parentage Act (UPA), “UPA (2017)”. The UPA provides states with a uniform legal framework for establishing parent-child relationships. The UPA has been quite influential, shaping parentage law in over half the states in this country since it was originally promulgated in 1973 (UPA (1973). UPA provisions initially formed the basis for most state donor insemination laws, and for many other significant parentage laws since that time, including those addressing the legal parentage of children born through assisted reproductive technology.
The UPA was previously revised in 2002 (UPA (2002). UPA (1973) removed the legal status of illegitimacy and provided a series of presumptions used to determine a child’s legal parentage. When the UPA was revised in 2002, it augmented and streamlined UPA (1973). UPA (2002) added provisions permitting a non-judicial acknowledgment of paternity procedure that is the equivalent of an adjudication of parentage in a court, and added a paternity registry. UPA (2002) also included provisions governing genetic testing and rules for determining the parentage of children whose conception was not the result of sexual intercourse. Finally, UPA (2002) included a bracketed (optional) Article 8 to authorize surrogacy agreements and establish the parentage of children born under the agreements. Although a number of states adopted many provisions of UPA (2002), surrogacy (Article 8 of UPA (2002) was an exception. Only two states adopted UPA (2002) surrogacy’s provision. Developments in surrogacy practices were seen as outpacing the law. As a result, a number of states in recent years adopted frameworks more liberal than those laid out in UPA (2002).
UPA (2017) makes a number of important changesto the UPA. Three of these core changes are directly relevant to families formed through assisted reproduction.
First, UPA (2017) seeks to ensure the equal treatment of children born to same-sex couples. UPA (2002) was written in gendered terms, and its provisions presumed that couples consist of one man and one woman. In Obergefell v. Hodges (2015), the United States Supreme Court held that laws barring marriage between two people of the same sex are unconstitutional. In Pavan v. Smith (2017), the Court reaffirmed that that conclusion applies to rules regarding children born to same-sex spouses. After these decisions, parentage laws that treat same-sex couples differently than different-sex couples are likely unconstitutional. UPA (2017) updates the Act to address this potential constitutional infirmity by amending provisions so that they address and apply equally to same-sex couples. The earlier version of the Act—UPA (2002)—addressed the parentage of children born through assisted reproductive technology (ART), but its provisions referred only to intended couples consisting of one man and one woman. UPA (2017) updates these provisions by permitting and recognizing intended parents without regard to sex, sexual orientation, or marital status. In addition to helping states comply with the Constitution, these updates provide clarity to these families and avoid unnecessary litigation.
Second, in addition to making the provisions gender neutral, UPA (2017) also updates the surrogacy provisions to reflect developments in that area, making them more consistent with current surrogacy practice, and recently adopted statutes in several states. The surrogacy provisions in UPA (2002) followed an adoption-based model, requiring pre-pregnancy court validation of the agreement and requiring a home study of the intended parents unless waived by the court. UPA (2017) jettisons this approach for gestational surrogacy agreements, and generally streamlines the process with regard to such agreements. Among other things, if the parties comply with the statutory requirements, the intended parents of a child born through gestational surrogacy are treated as legal parents of the resulting child by operation of law, without the need for a court order or judgment. UPA (2017) also permits genetic (also referred to as “traditional”) surrogacy agreements, but it imposes additional requirements on these agreements. Among other things, judicial validation is generally required for genetic surrogacy agreements, and a genetic surrogate maintains the right to withdraw her consent up until 72 hours after the child’s birth.
Finally, UPA (2017) includes a new article – Article 9 – that addresses the right of donor conceived persons born through assisted reproductive technology to access medical and identifying information regarding any gamete providers. WhileArticle 9 does not require disclosure of the identity of a gamete donor, it does require that donors be asked whether they would like their identity disclosed. It also requires a good faith effort to disclose nonidentifying medical history information regarding the gamete donor upon request.
The approved UPA 2017 is available to adoption by state legislatures, and the text of the full Act (2017) can be found and accessed at http://uniformlaws.org/Act.aspx?title=Parentage%20Act%20.
A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.