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April 01, 2018 Uniform Parentage Act

The New Uniform Parentage Act of 2017

By: Jamie D. Pedersen

*As this issue went to presss, Washington State became the first to enact UPA 2017. Governor Jay Inslee signed Senate Bill 6037 into law on March 6, 2018. The Vermont, Rhode Island, and California legislatures were also considering enactment of all or part of UPA 2017.

Creation of the Uniform Parentage Act

Since 1892, the Uniform Law Commission (ULC) has brought together lawyers, judges, law professors, and legislators from across the United States to craft, and work for enactment of, nonpartisan, well-conceived, and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Among the most important products of the Uniform Law Commission in recent decades is the Uniform Parentage Act (UPA).

The ULC originally promulgated the UPA in 1973 in response to a series of U.S. Supreme Court decisions holding that the differential treatment of nonmarital children was unconstitutional. UPA 1973 removed the legal status of illegitimacy and provided a series of presumptions used to determine a child’s legal parentage. A core principle of UPA 1973 was to ensure that all children and all parents have equal rights with respect to each other, regardless of the marital status of the parents.

The ULC revised the UPA in 2002. UPA 2002 added a nonjudicial acknowledgment- of-paternity procedure equivalent to a court adjudication of parentage. UPA 2002 also included provisions governing genetic testing and rules for determining the parentage of children conceived with assisted reproductive technologies. Finally,    it included a paternity registry and optional provisions authorizing surrogacy agreements.

Changes in Law, Society, and Technology Have Required Updates

UPA 1973 and UPA 2002 were drafted in gender-specific terms that excluded the growing reality of families created and headed by same-sex couples. For example, section 703 of UPA 2002 provided that “[a] man who provides sperm for, or consents to, assisted reproduction by a woman as provided in Section 704 with the intent to be the parent of her child, is a parent of the resulting child.” In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the U.S. Supreme Court held that laws barring marriage between two people of the same sex are unconstitutional. It was clear that portions of UPA 2002 might not only be outdated but might actually be unconstitutional.

The ULC created a drafting committee to revise the UPA in light of the rapid developments in law, society, and technology that had been occurring since the beginning of the millennium. This decision was both prescient and timely: in June 2017, the U.S. Supreme Court held that a state may not, consistent with Obergefell, deny married same-sex couples recognition on their children’s birth certificates while recognizing married, different-sex couples as parents on their children’s birth certificates. Pavan v. Smith, 137 S. Ct. 2075, 2078–79 (2017).

After Obergefell and Pavan, parentage laws that treat same-sex couples differently from different-sex couples are likely unconstitutional. In September 2017, the Arizona Supreme Court held that refusing to apply that state’s marital presumption equally to same-sex spouses would violate the Due Process and Equal Protection Clauses of the U.S. Constitution. McLaughlin v. Jones, 401 P.3d 492, 498 (Ariz. 2017). The McLaughlin court held that the “marital paternity presumption is a benefit of marriage, and following Pavan and Obergefell, the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses.” 401 P.3d at 498. The court went on to explain that state legislatures, like state courts, are “obliged to follow the United States Constitution. … Through legislative enactments and rulemaking, [the] coordinate branches of government can forestall unnecessary litigation and help ensure that [state] law guarantees same-sex spouses the dignity and equality the Constitution requires— namely the same benefits afforded couples in opposite-sex marriages.” Id. at 501. UPA 2017 will give state legislatures the opportunity to do exactly that.

UPA 2017 makes five major changes to the UPA.

Major Changes in UPA 2017

UPA 2017 makes five major changes to the UPA. First, UPA 2017 seeks to ensure the equal treatment of children born to same-sex couples (and to cure the constitutional infirmity in previous versions of the UPA) by amending provisions throughout the Act so that they address and apply equally to same-sex couples. These changes include broadening the presumption, acknowledgment, genetic testing, and assisted reproduction articles to make them gender neutral.

These revisions will have immediate, practical effects in states that enact UPA 2017. For example, if an unmarried lesbian couple has a child through assisted reproduction consistent with Article 7 of the Act, both women will be legal parents of the child. Moreover, the women will be able to sign an acknowledgment of parentage. Pursuant to federal law, a properly completed acknowledgment must be treated  as a judgment, 42 U.S.C. § 666(a)(5)(D)(ii), and must be given full faith and credit in other states. 42 U.S.C. § 666(a)(5)(C)(iv). The process ensures that one’s status as a parent will be certain and stable even as families travel or move to different states.

Second, UPA 2017 includes a provision for the establishment of a de  facto parent as a legal parent of a child. Most states recognize and extend at least some parental rights to people who have functioned as parents to children but who are unconnected to those children through either biology or marriage. These states range from Massachusetts, West Virginia, and South Carolina to Texas, California, and Washington. Some states recognize such people under a variety of equitable doctrines, which are sometimes labeled “de facto parentage,” “in loco parentis,”  or “the psychological parent doctrine.” Other states extend rights to such people through broad third-party standing statutes. More recently, states have begun to treat such people as legal parents under their parentage laws. Two states, Delaware and Maine, achieve this result by including “de facto parents” in the definition of parent in their state versions of the UPA. Other states, including California, Colorado, Kansas, New Hampshire, and New Mexico, reached this conclusion by applying their existing parentage provisions to such persons.

Under new section 609, an individual who has functioned as a child’s parent for a significant period and formed a bonded and dependent parent-child relationship may be recognized as a legal parent. Consistent with the case law and the existing statutory provisions in other states, this section does not include a specific time- length requirement. Instead, whether the period is significant is left to the court to determine based on the circumstances of the case. The length of time required will vary depending on the age of the child. Among the limitations built into the section are a heightened standing requirement and the rule that the section may not be used to establish parentage involuntarily.

Third, UPA 2017 includes a provision that precludes establishment of a parent- child relationship by the perpetrator of a sexual assault that resulted in conception of the child. In 2015, the U.S. Congress passed the Rape Survivor Child Custody Act, codified at 34 U.S.C. §§ 21301–08, providing incentives for states to enact “a law that allows the mother of any child that was conceived by rape to seek court-ordered termination of the parental rights of her rapist with regard to that child, which the court shall grant upon clear and convincing evidence of rape.” Id. at § 21303. In 2017, at least seventeen state legislatures were considering bills to enact such statutes.

New section 614 provides language to implement the federal effort, creating a process by which a woman may ask a court to prevent a perpetrator from being established as a legal father. He may still be ordered, however, to pay child support and birth-related costs.

Fourth, UPA 2017 substantially rewrites the surrogacy provisions of UPA 2002, which had not been widely adopted. UPA 2017 is modeled on recent legislation in Delaware and Maine that permits enforceable agreements between intended parents and women acting as gestational surrogates, with various safeguards for all those involved, including a requirement that the parties have independent legal counsel. Once these requirements are met, the parties are entitled to a court order that the intended parents are the legal parents of the child. The order may be obtained during the pregnancy but is not effective until the birth of the child.

UPA 2017 also permits genetic surrogacy, in which the woman acting as a surrogate is also the genetic parent of the child. This approach is less expensive and involves fewer invasive medical procedures but comes with other legal and emotional risks for the parties. The Act therefore includes additional requirements for genetic surrogacy, including court review of the contract before commencement of medical procedures and a seventy-two-hour rescission period for the woman acting as a surrogate after the birth of the child.

Finally, UPA 2017 includes a new article addressing the right of children conceived through assisted reproductive technology to access medical and identifying information regarding any gamete providers. Based on data from 2015, the federal Centers for Disease Control and Prevention report that approximately 1.6% of all infants born in the United States every year are conceived using ART. Data suggest that this percentage continues to increase. In the same way that adopted children have fought to have access to information about their birth parents, a generation of children conceived through assisted reproductive technology will have claims to access information about their gamete donors. UPA 2017 addresses this issue proactively. UPA 2017 does not require disclosure of the identity of a gamete donor, but it does require gamete banks   and fertility clinics to ask donors if they want to have their identifying information disclosed when the child attains eighteen years of age. It also requires disclosure of nonidentifying medical history of the gamete donor.

Onward to State Legislatures

Unlike most other organizations that draft model acts on various subjects, the Uniform Law Commission works actively toward the broad enactment of uniform laws by state legislatures. Commissioners from each state delegation consider whether uniform acts should be introduced in their states and, if the answer is yes, they work closely with ULC staff and the enactment committee for introduction and passage of the bill in their state.

Several states are preparing bills to enact UPA 2017 during the 2018 legislative sessions. Transforming UPA 2017 from well-crafted language into law around the country will require significant effort over the next several years. The Uniform Law Commission would welcome your support in that process. fa

The Uniform Law Commission Process

The drafting committee for UPA 2017 included current or former legislators from Washington, Idaho, Nevada, Minnesota, and Colorado and reflected significant political diversity, as well as a range of family law experts that included judges, family law practitioners, and leading family law professors. A large and engaged group of observers participated in the drafting process, including representatives from the American Academy of Assisted Reproductive Technology Attorneys, the American Academy of Matrimonial Lawyers, the American Bar Association Family Law Section, the American College of Trust and Estate Counsel, LabCorp, the National Association for Public Health Statistics and Information Systems, the National Center for Lesbian Rights, the National Center for State Courts, the National Child Support Enforcement Association, the federal Office of Child Support Enforcement, and the Society for Assisted Reproductive Technology.

The drafting committee met in person for six full days over eighteen months. In addition, the committee held eight telephone meetings to discuss such thorny issues in the UPA as whether and under what circumstances to treat de facto parents as legal parents; whether to limit the number of legal parents a child may have; the effect of noncompliant surrogacy agreements; and parentage of children born through sexual assault.

In accordance with longstanding custom and practice, the entire draft Act was read out loud, line by line, for  all three hundred-plus members of the Uniform Law Commission at the 2016 annual meeting in Stowe, Vermont, and again at the 2017 annual meeting in San Diego, California. Commissioners offered comments, suggestions, and amendments, and the drafting committee continued to refine the Act and incorporate dozens of changes. The Uniform Law Commission adopted UPA 2017 by a vote of forty-four to four (five jurisdictions did not vote) on July 19, 2017.

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Jamie D. Pedersen

JAMIE D. PEDERSEN ([email protected]) serves in the Washington State Senate, where he chairs the Law & Justice Committee, and as a commissioner on the Uniform Law Commission.

He chaired the drafting committee for the 2017 revisions to the Uniform Parentage Act. He is vice president and general counsel of McKinstry Co., LLC, in Seattle.