I. A Brief History of the Uniform Parentage Act
“First promulgated in 1973, the [Uniform Parentage Act (UPA)] is a comprehensive statutory scheme for determining a child’s legal parentage.”2 The UPA, like many other Uniform Acts, is a product of the Uniform Law Commission (ULC).3 The ULC is a nonprofit organization that “provides states with non-partisan, well-conceived, and well drafted legislation that brings clarity and stability to critical areas of state statutory law.”4 Since its initial promulgation, the UPA has been quite influential. More than half the states have parentage statutes that are based on the UPA. “Approximately nineteen states—ranging from Montana to Kansas to Hawaii to Rhode Island—enacted the UPA (1973) in whole or in significant part. And eleven states—ranging from Alabama to Wyoming to Texas to Maine—enacted the UPA (2002).”5 So far, three states—California, Vermont, and Washington—enacted all or substantial portions of the UPA (2017).6
The first promulgation of the UPA—UPA (1973)—“had its genesis in an article [published in 1966] entitled ‘A Proposed Uniform Act on Legitimacy’” authored by Professor Harry Krause.7 At that time, the parentage laws in many states discriminated against nonmarital children. Such laws were not only unfair, they were also likely unconstitutional.8 Heeding Professor Krause’s warning, a study committee was appointed by the ULC in 1969 to consider the subject. While the committee deliberated, the U.S. Supreme Court issued a number of decisions declaring that laws that discriminated against so-called “illegitimate” children may be unconstitutional.9 As the Court explained in one such case:
[I]mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. . . . Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where—as in this case—the classification is justified by no legitimate state interest, compelling or otherwise.10
These decisions made it all the more clear that the project was necessary and that states needed the Act as soon as possible,11 as “the law of many states continued to differentiate very significantly in the legal treatment of legitimate and illegitimate children.”12
A core purpose of the original UPA was to help states “fulfill the mandate of the Constitution” by “providing substantive legal equality for all children regardless of the marital status of their parents.”13 In this way, from its initial inception, the UPA was intended to help states “reform their parentage laws to eliminate rules that discriminated against [various classes of] children.”14
In the 1990s, it was determined that the Act needed a reboot. Courts in different states interpreted provisions of the Act inconsistently. In addition, the Act did not address a number of important parentage issues that had arisen in the intervening years. Finally, technological advances with respect to genetic testing and assisted reproduction warranted “a thoroughgoing revision of the Act.”15 A revision to the UPA was approved by the ULC in July 2000. It was scheduled to be considered by the ABA House of Delegates in February 2001, but the Act was withdrawn from consideration after concerns were raised by two ABA entities: what was then known as the ABA Section of Individual Rights and Responsibilities (ABA-IRR)16 and the ABA Steering Committee on the Unmet Legal Needs of Children.17
These ABA entities contended that some of the changes in the revised UPA violated a core principle of the UPA (1973) by “treat[ing] children of an unmarried couple differently than those of a married couple” and by failing to include and equally protect the children of same-sex couples.18 As approved by the ULC in July 2000, the Act included means of establishing the parentage for marital fathers that were not available to nonmarital fathers. For example, under the July 2000 version of the Act, a husband who was not biologically related to the child could be recognized as a parent under the marital presumption. The July 2000 version, however, eliminated a previously existing parallel provision—the “holding-out presumption”—under which a nonbiological, nonmarital father could be recognized.19 In addition, the assisted reproduction provisions of the July 2000 version—Articles 7 and 8—applied only to married intended parents.20 Thus, there too, the Act provided means of protecting marital fathers that were not equally extended to nonmarital fathers.
The ULC then participated in a series of negotiations with ABA representatives to address these concerns. I participated in these negotiations as a representative from the ABA-IRR Section.21 After approximately eighteen months of work, “policy differences [were resolved] in an amicable fashion.” The result was the UPA (2002).22 Under the UPA (2002), the holding-out presumption was restored, albeit in a revised form,23 and Articles 7 and 8 were made expressly marital-status neutral, applying equally to married and unmarried couples who had children using assisted reproduction. On February 10, 2003, the ABA approved the UPA (2002).24
Again, concerns about discrimination against different family forms functioned as a key driver of the drafting process. The changes incorporated into the UPA (2002) were intended to further the principle that “a child born to an unmarried man and woman, including children born through assisted reproduction or in the context of a gestational agreement, should have the same rights and relationship with his or her parents or intended parents as a child born to a married couple.”25 But while the negotiations process resulted in an “amicable resolution” with respect to children born to unmarried different-sex couples, direct engagement with “[i]ssues relating to same-sex couples were left to another day.”26 Throughout the Act, the UPA (2002) refers only to couples consisting of a “man” and a “woman.”27
By 2015, it became clear that the parentage of children of same-sex couples could no longer be “left to another day.” As Committee Chair Jamie Pedersen wrote in a memorandum to the ULC in June 2015, just before the Supreme Court announced its opinion in Obergefell v. Hodges:28 “Given the widespread reality of legally married same-sex couples across the United States, the Study Committee believes that establishment of a drafting committee [to update the UPA] is both necessary and urgent.”29 The gender-specific references to couples consisting only of a man and a woman, Chair Pedersen continued, “may lead to confusion about the application of the [Act] to married same-sex couples and legal uncertainty for the children born into these families.”30 Chair Pedersen predicted that “a court might take a literal approach and refuse to apply the marital presumption and other marriage-dependent doctrines to same-sex spouses.”31
II. Background About the Drafting Process for the UPA (2017)32
Based on the recommendation of Chair Pedersen, the ULC Committee on Scope and Program recommended the formation of a drafting committee to amend the UPA in November 2015.33 “This recommendation was approved by the Executive Committee and the drafting committee was formed.”34 Initially, the Drafting Committee was given a limited scope of work. The initial charge directed the Drafting Committee to limit its amendments to “issues relating to same-sex couples, surrogacy, and the right of a child to genetic information.”35 “The Scope and Program Committee and the Executive Committee subsequently gave the [D]rafting [C]ommittee authority to make additional, nonsubstantive revisions to the UPA to improve its clarity and flow (June 2016); to revise, rather than merely amend, the UPA (August 2016); to address the issue of de facto parentage (January 2017); and to address the parentage of children conceived through sexual assault (April 2017).”36
The Drafting Committee consisted of Commissioners from states around the country, including Arizona, Colorado, Idaho, Minnesota, and Texas. Several Commissioners on the Committee are or were state legislators.37 The Committee also benefitted from a number of “Observers” who provided feedback and guidance during the drafting process. These Observers included 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.38
The Drafting Committee had three in-person meetings in March 2016, October 2016, and March 2017.39 The Committee also held
eight telephone meetings to discuss thorny issues in the UPA such 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 the parentage of children born through sexual assault.40
Before the ULC considered the Act, several organizations submitted letters in support of the UPA (2017). These organizations included National Center for Lesbian Rights, National Child Support Enforcement Agency, Academy of Adoption and Assisted Reproduction Attorneys, National Association for Public Health Statistics and Information Systems, and the Society for Assisted Reproductive Technology.
On July 19, 2017, the Uniform Law Commission voted to approve the UPA (2017). Forty-four jurisdictions voted to approve the Act, four jurisdictions voted nay, and five jurisdictions abstained. The UPA was approved by the ABA on February 5, 2018. As of October 2019, three states—California, Vermont, and Washington—had adopted all or substantial portions of the UPA (2017).41
III. Substance of the UPA (2017)
The revisions to the UPA primarily address six issues: (A) ensuring the equal treatment of children born to same-sex couples, (B) expanding recognition of nonbiological parents, (C) providing guidance in cases involving competing claims of parentage, (D) addressing the parentage of children conceived through sexual assault, (E) updating the rules governing children born through a surrogacy agreement, and (F) establishing a procedure to enable children conceived through assisted reproduction to access information about any gamete providers. Each is addressed in turn below.
A. Equal Treatment of Children Born to Same-Sex Couples
A core goal of the UPA (2017) Drafting Committee was to ensure the equal treatment under the Act of children born to same-sex couples. The prior versions of the UPA—UPA (1973) and UPA (2002)—were written in gender-specific terms and their provisions presumed that couples consisted of a man and a woman. For example, the marital presumption of the UPA (2002) provided that a “man is presumed to be the father of a child if . . . he and the mother of the child are married to each other and the child is born during the marriage.”42 The assisted reproduction articles—Articles 7 and 8—likewise expressly referred only to different-sex couples. Section 703 of the UPA (2002), for example, 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.”43
It was clear by 2015, however, that not all marriages and not all unmarried couples consist of one man and one woman. In this way, the terminology used by the earlier versions was out-of-date as a practical matter. It had also become clear that laws denying equal treatment to same-sex couples likely were unconstitutional. In Obergefell v. Hodges, the Supreme Court declared that the Constitution requires that marriage be equally available to same-sex couples and that same-sex married couples be afforded “the constellation of benefits that the States have linked to marriage.”44 The marriage-related benefits that must be equally extended to same-sex spouses include protections related to children. Consistent with this principle, two years after Obergefell, the Supreme Court held in Pavan v. Smith that Arkansas must list a female spouse on the birth certificate of a child born to her wife, just as it would for a male spouse under the same circumstances.45
This constitutional principle of equal treatment without regard to sex or sexual orientation also applies to parentage rules. This is what a federal district court in Utah held in Roe v. Patton even before Pavan was decided.46 Under the Utah Parentage Act (which is based on the UPA (2002)), a husband who consents to his wife’s insemination is the legal parent of the resulting child.47 Although the provision is written in gendered terms, the district court held that the plaintiffs were “highly likely to succeed in their claim” that extending the “benefits of the assisted reproduction statutes to male spouses in opposite-sex couples but not for female spouses in same-sex couples” was unconstitutional.48 More recently, the Arizona Supreme Court held in McLaughlin v. Jones that that state’s marital presumption “cannot, consistent with the Fourteenth Amendment’s Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples. 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.”49 As evidenced by Roe and McLaughlin, same-sex spouses can seek protection even under gendered parentage provisions.
In addition to the constitutional mandate of equal protection, the terms of the UPA itself expressly mandate that gendered provisions be applied equally without regard to sex. Every iteration of the UPA includes a provision stating that provisions addressing the parentage of men must be applied equally to determine the parentage of women.50 Consistent with this statutory mandate, most courts applying earlier iterations of the UPA concluded that provisions for determining men’s parentage—including gendered provisions creating presumptions of paternity—must be applied equally to determine maternity when it is at issue.51 For example, a number of courts have applied their state’s gendered holding-out presumption equally to women.52
Even with the inclusion of the gender neutrality mandate, however, some courts—indeed even some courts in UPA states—resisted applying gendered provisions equally to same-sex spouses.53 For example, one Texas Court of Appeal held in 2017 that that state’s gendered marital presumption and its gendered assisted reproduction provisions could not be applied to a female spouse. The court reasoned: “The word ‘husband’ and the word ‘wife’ are not expressly defined in the Texas Family Code. . . . The substitution of the word ‘spouse’ for the words ‘husband’ and ‘wife’ would amount to legislating from the bench, which is something that we decline to do.”54 This decision refusing to apply gendered parentage provisions equally to a woman is in the minority; most courts have complied with the Act’s statutory mandate to apply its provisions regarding determinations of paternity equally to cases involving a woman’s parentage, when that is at issue. But the fact remains that a minority of courts have resisted this mandate. These decisions leave same-sex partners and other women with claims to parentage and their children in vulnerable positions. Moreover, even if this reasoning is ultimately rejected,55 same-sex couples and their children will have endured years of uncertainty about their family status when a similarly situated different-sex couple would not have been required to do so.
To assist states in addressing this potential constitutional infirmity and to ensure that children born to same-sex couples are accorded equal treatment and protection under the Act, the UPA (2017) updates provisions throughout the Act so that they expressly apply equally to same-sex couples. This express gender neutrality removes any uncertainty for courts and for the parties about whether particular provisions can be applied to determine a woman’s parentage. In this way, “[l]ike its predecessors, the UPA (2017) seeks to help states comply with newly recognized constitutional obligations and to better reflect and address the reality of the modern family.”56
The UPA (2017) furthers this goal of equal treatment in a number of different ways. First, the UPA (2017) replaces most of the gendered terminology with gender-neutral terminology. These terminology revisions start from the basics and move systematically through the Act. Prior iterations of the Act set forth distinct means of establishing the “mother-child relationship,” on the one hand, and “father-child relationship,” on the other.57 By contrast, the UPA (2017) consolidates all of the methods of establishing parentage under a single umbrella provision that lists seven different means of establishing parentage; these means all apply equally, without regard to gender.58
Second, consistent with this basic principle, throughout the Act, specific provisions governing the establishment of parentage were made gender neutral. For example, as noted above, in earlier versions of the Act, the marital presumptions were written in gendered terms, applying only to a “man” who was married to the woman who gave birth. Under the UPA (2017), the marital presumptions apply to any “individual”59 who was married to the woman who gave birth to the child.60
The Drafting Committee considered but ultimately rejected making the marital presumption fully gender neutral. Under a fully gender-neutral marital presumption, the presumption would apply to any spouse of any legal parent, regardless of whether that legal parent was the birth parent. Thus, for example, under a fully gender-neutral marital presumption, if a husband had a sexual relationship with a woman not his wife that resulted in the birth of a child, his wife would be a presumed parent.61 At least in states that limit the number of parents to two, there were questions about how this would work in practice since (outside the context of surrogacy) a woman who gives birth to a child is a parent.62 Ultimately, the Committee decided against the adoption of a fully gender-neutral marital presumption. This is in line with developments in the states. Seven jurisdictions have expressly gender-neutral marital presumptions.63 None of these states has a fully gender-neutral marital presumption.64
The assisted reproduction Articles—Article 7 governing nonsurrogacy-assisted reproduction and Article 8 governing surrogacy—likewise were revised. The UPA (2002) updated Articles 7 and 8 so that they applied equally without regard to the marital status of the intended parents.65 Under the UPA (2017), these Articles now also apply equally without regard to the sex or sexual orientation of the intended parents. For example, Section 703 now provides: “An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child.”66 Article 8 likewise was updated to apply equally to all intended parents, without regard to sex, sexual orientation, or marital status.67
2. Substantive Changes
Some substantive changes were also necessary to fulfill the goal of equal treatment. One important set of substantive changes in this regard was to Article 3, governing “VAPs,” or “voluntary acknowledgments of parentage” (previously called “voluntary acknowledgments of paternity”). VAPs provide a streamlined administrative process for establishing parentage. A properly completed, unrescinded VAP has the force of a judgment and is statutorily entitled to full faith and credit in all other states.68 States must have VAP procedures in place to be eligible to receive federal child support enforcement funds.69 As a result, all states have VAP procedures. The protection extended by this procedure is important.
In most states today, VAPs can only be used to establish the parentage of a man who is claiming to be the genetic parent of a child born to a woman who is not his wife.70 VAPs provide this subset of men who have a basis for asserting parentage under the Act a streamlined, free, nonjudicial means of establishing their parentage with certainty.71 Federal law requires other states to recognize and give effect to an out-of-state VAP.72 By contrast, in most states, women with a statutory basis for claiming parentage do not have access to a similar streamlined administrative system for determining their parentage with certainty.73
To remedy this inequality, the UPA (2017) renames the process. Under the UPA (2017), these acknowledgments are now referred to as “acknowledgments of parentage.” The UPA (2017) also expands the groups of people who can establish parentage through the VAP process. In addition to alleged genetic fathers, VAPs now can “also be used to establish the legal parentage of ‘an intended parent’ of a child born through [nonsurrogacy forms of] assisted reproduction and of a ‘presumed parent’ (which, most commonly, will be the woman’s spouse—male or female).”74 This change allows women to access this critical protection that currently is available only to men in many states.
This is an important development. To be clear, these newly added groups of people are parents or are presumed to be parents under the Act. “But in the absence of a formal judgment of parentage, other states may not be required to respect and recognize that parent-child status.”75 This is true because under the constitutional principle of Full Faith and Credit, courts in other states generally are permitted to apply forum law to an action pending in that state. Thus, even if a person is considered a parent under the law of one state, in the absence of a judgment or a VAP, a court of the second state can apply its own law to determine that person’s parentage. If the second state has not adopted the UPA (2017) or rules that are similar in substance to the UPA (2017), the person might not be considered a legal parent under the law of that second state. This leaves such individuals and their children extremely vulnerable. By allowing these individuals to obtain a nonjudicial establishment of parentage that should be respected in other states, the UPA (2017) helps mitigate some of the uncertainty that parents—particularly same-sex parents—often face today.76
While this revision at first may seem surprising to some, it is consistent with a core principle of the UPA, which is to protect and provide certainty and finality to families. Thus, for example, the UPA (2002) placed a two-year statute of limitations on challenges to the parentage presumptions, as well as to effective voluntary acknowledgments of paternity. These rules are based on the principle that, at some point, an established parent-child relationship ought not to be disrupted. By providing greater certainty and security to same-sex spouses and to all intended parents of children born through assisted reproduction, the changes to Article 3 likewise seek to further this goal. As of September 2019, six states had, or soon will have, procedures in place that permit a wider range of individuals, including women, to establish parentage through an administrative process. The six states are California (effective January 2020), Maryland, Massachusetts, Nevada, Vermont, and Washington.
B. Recognition of Nonbiological Parents
The UPA has always included provisions under which people who were unconnected to children through biology could be recognized as parents. These provisions include the marital presumption, under which a husband (and now a spouse) is presumed to be the parent of a child born to that person’s wife. Every iteration of the UPA has included a marital presumption.77 Many people are the biological parents of children born to their spouses, but this is not always the case. The marital presumption applies to all spouses, whether or not they are biologically connected to the child.78 And while this presumption of parentage is rebuttable, it is not necessarily rebutted by evidence or knowledge regarding the spouse’s lack of genetic connection.79
This has also been possible under the so-called “holding-out presumption.” Under the original 1973 version of the holding-out presumption, a man was presumed to be a parent if he had received the child into his home and held the child out as his own during the child’s minority.80 As with the marital presumption, this presumption was not necessarily rebutted by evidence that the man was not a genetic parent.81 In this way, a court could establish the parentage of a man who was not connected to the child through either marriage or biology based on his conduct of having lived with and functioned as the child’s father. Variations of the “holding-out presumption” have been included in every iteration of the UPA.82
Like its predecessors, the UPA (2017) includes a number of other methods by which a person who is not genetically related to a child can establish his or her parentage. These carried-over methods of establishing parentage for nonbiological parents include the marital presumptions83 and the holding-out presumption,84 as well as the assisted reproduction rules provided for in Article 7 (nonsurrogacy-assisted reproduction) and Article 8 (surrogacy). Importantly, however, these provisions have now all been revised so that they are expressly gender neutral. Thus, for example, the marital presumption now provides that an “individual is presumed to be a parent of a child if . . . the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage.”85
2. De Facto Parentage
The UPA (2017) also includes a new method for establishing the parentage of a nonbiological parent: the de facto parentage provision included in Section 609. This provision reflects and incorporates the national trend. Today, the majority of states protect relationships between children and functional, nonbiological, nonmarital parents.86 These states span the country, ranging from West Virginia to Texas to Alaska.87 Some states protect these functional parent-child relationships under equitable doctrines. Other states extend rights to such people through broad third-party custody and visitation statutes.88 Courts in still other states, including California, Colorado, Kansas, Massachusetts, New Hampshire, and New Mexico, have held that such people can be legal parents under various parenting presumptions, including the holding-out presumption. In addition, prior to the adoption of the UPA (2017), two states—Delaware and Maine—included de facto parents in their statutory definition of parent.
The UPA (2017) follows this strong state-based trend in a particularly robust way by adopting the approach of Delaware and Maine and expressly recognizing de facto parentage under the Act. As noted above, the UPA has always included means of recognizing the parentage of people who are genetically unconnected to children. In this way, the underlying premise of the de facto parentage provision is not new at all. That said, the new de facto parent provision may protect people who would not be captured by the current version of the holding-out presumption.
To understand the relationship between the de facto parent provision and the holding-out presumption, it is helpful to review briefly the evolution of the holding-out presumption. In the original UPA (1973), the holding-out presumption had no time limitations; the court could find that a man was a parent if, at any time during the child’s minority, he had received the child into his home and held the child out as his own.89 As noted above, the holding-out presumption was briefly removed from the Act in the 2000 version. When the holding-out presumption was re-included in the UPA (2002) as a result of the negotiation process between the ULC and the ABA, a new time limitation was added. Under the UPA (2002), a man could assert parentage under the holding-out presumption only if he had resided in the same household with the child and held the child out as his own “for the first two years of the child’s life.”90
The Drafting Committee of the UPA (2017) decided to carry over that time-limited version of the holding-out presumption. The Committee was concerned, however, that the time limitation might result in the denial of recognition of some people who were functioning as, and were seen by the child to be, the child’s parent but who came into the child’s life at some time after the child’s birth. Section 609—the de facto parent provision—was added to address this gap in protection. As the Comment explains, the de facto parent provision “ensures that individuals who form strong parent-child bonds with children with the consent and encouragement of the child’s legal parent are not excluded from a determination of parentage simply because they entered the child’s life sometime after the child’s birth.”91 To be clear though, while such a person would be unprotected under the UPA (2002)’s version of the hold-out presumption, they may be recognized as a parent under the 1973 version of the holding-out presumption. (A number of states still have holding-out presumptions that are based on the UPA (1973).92) Thus, in some ways, the de facto parent provision can be seen as adding back in some protections that had been eliminated along the way.
For these reasons, there was support among the Drafting Committee for the inclusion of this provision. At the same time, some members expressed concern that the provision might inadvertently capture people who were caring for children but who should not be recognized as legal parents. To address these concerns, the provision—Section 609—includes a number of safeguards or hurdles. First, only the person claiming to be a de facto parent can initiate an action under the provision; an existing legal parent cannot establish someone else’s parentage under Section 609.93 “This limitation was added to address concerns that unsuspecting stepparents or partners might be pursued for child support after the breakdown of the adults’ relationship.”94 In contrast to Section 609, any individual with standing can bring an action to determine the parentage of someone alleged to be a parent under the holding-out presumption. Thus, for example, the woman who gave birth can bring the action to establish the parentage under the holding-out presumption of an individual who has been living with and treating the child as their own.95 Likewise, a child support enforcement agency could initiate an action seeking to adjudicate the parentage of someone alleged to be a parent under the holding-out presumption.96
In addition, Section 609 includes a number of hurdles that make it difficult for a person claiming to be a de facto parent to establish parentage. For example, Section 609 includes a heightened evidentiary standing requirement. Moreover, even if the person is able to establish standing under this heightened standard, “Section 609 also sets forth a series of robust substantive standards that must be established [by clear-and-convincing evidence] before a court can adjudicate an individual to be a de facto parent.”97 Someone who has been parenting a child for only a short time would not meet these standards. This is true because the person would be unable to demonstrate that they had been “a regular member of the child’s household for a significant period” and that they had developed a “bonded and dependent relationship with the child which is parental in nature.”98 A person who was just helping out with care likewise would not meet the standard. This is true because the person must have “held out the child as the individual’s child.”99 The person must also establish that they “undertook full and permanent responsibilities of a parent.” Critically, in all cases, this bonded and dependent parent-child relationship must have been “fostered or supported” by the child’s parent.100 “Thus, an individual cannot unilaterally become a de facto parent.”101 Even if all of these requirements are met, the court must also find that “continuing the relationship between the individual and the child is in the best interest of the child.”102
Finally, meeting all of the substantive standards of the section does not always result in a determination of parentage. If the individual fulfills all of the statutory requirements in Section 609 and there is only one other individual who is or has a claim to parentage, then the court must declare the individual to be a parent.103 But, if there is more than one individual who is or has a claim to be a parent other than the individual claiming to be a de facto parent, then the court must determine parentage under Section 613. Section 613 is the provision that applies in cases involving competing claims of parentage. In most cases involving competing claims, the court must choose between the competing candidates. Section 613 does, however, include an alternative provision that, if enacted by the state, allows the court in rare cases to find that a child has more than two legal parents.104 Issues related to multiple parentage are discussed in more detail in Part III.C.
By way of contrast, a number of these safeguards or hurdles included in Section 609 of the UPA (2017) do not appear in the statutory de facto parent provisions in Delaware and Maine. In Delaware, for example, an action to determine the parentage of an alleged de facto parent can be initiated by any individual with standing.105 In both Delaware and Maine, if the court finds that the individual meets the relevant standard, the statute directs the court to declare the individual to be a parent, regardless of how many other individuals are parents or have claims to be the parent of the child.106
In sum, the de facto parent provision is at once broader and narrower than the holding-out presumption. Consider a situation where a man moved in with a woman and the women’s child when the child was one and thereafter co-parented for the next eight years. The holding-out presumption would not apply because the man did not live with the child for the first two years of the child’s life. However, the man might be able to establish his parentage under the de facto parent provision. In this way, the de facto parent is broader than the holding-out presumption. It applies to factual scenarios not captured by the holding-out presumption. This expansion was intentional. The de facto parent provision “ensures that individuals who form strong parent-child bonds with children with the consent and encouragement of the child’s legal parent are not excluded from a determination of parentage simply because they entered the child’s life sometime after the child’s birth.”107 But, at the same time, the de facto parent provision is narrower in some respects. In the scenario described above, the action could be brought only by the man; the woman or the Department of Child Support Enforcement could not initiate the action under Section 609.108
C. Competing Claims of Parentage
1. Standard for Resolving Competing Claims
The original 1973 version of the UPA acknowledged that there may be cases in which more than two people have claims to parentage of a child under the Act. Such cases could involve, for example, parentage claims asserted by a spouse and a person who has a claim to parentage under the holding-out provision. The UPA (1973) directed courts to determine which presumption was “founded on the weightier considerations of policy and logic.”109
In contrast, the UPA (2002) did not provide express guidance for cases involving competing claims of parentage. The UPA (2002), however, implicitly acknowledged that such cases may arise. Section 608 of the UPA (2002) authorized a court to deny a request for genetic testing in cases, for example, in which a genetic father sought to challenge the spouse’s status as a parent under the marital presumption. If the request for genetic testing was denied, then the spouse would be declared to be the child’s legal parent. If the request was permitted and the genetic testing revealed that the alleged genetic father was a genetic father, then the court was required to declare the genetic father to be a parent. In deciding whether to deny a request for genetic testing, Section 608 of UPA (2002) directed a court to consider a list of factors. In this way, the UPA (2002) addressed multiple parentage only indirectly through the granting or denial of a request for genetic testing; there was no provision expressly directing how to weigh and evaluate conflicting claims to parentage. As a result, confusion sometimes arose about how such cases should be handled, especially when the parties already knew that the husband was not the genetic parent.
To provide greater clarity and guidance to courts and to parties, the UPA (2017) sets forth an express rule that applies to cases in which two or more people, other than the woman who gave birth, claim to be a child’s legal parent. Such cases are governed by Section 613—“Adjudicating Competing Claims of Parentage.” While the UPA (2017) departs from its immediate predecessor in expressly addressing the issue, the factors listed in Section 613 draw from and are similar to the factors enumerated in Section 608 of UPA (2002), which, as noted above, governed requests for genetic testing.
2. Number of Parents
Section 613 “also expressly addresses another issue that UPA (2002) did not: whether a court may conclude that a child has more than two parents under the act.”110 As discussed above, it is certainly possible for more than two people to have claims to parentage of a child under the Act. In practice, more and more courts have been presented with cases involving multiple claimants.111
The Act includes two alternatives with respect to the number-of-parents issue. “Alternative A provides that a child cannot have more than two legal parents. Alternative B permits a court, in rare circumstances, to find that a child has more than two legal parents.”112 Alternative B is consistent with the emerging trend in the states. Five states—California, Delaware, Maine, Vermont, and Washington—statutorily permit a court to find that a child has more than two legal parents.113 Courts in some other states “have reached that conclusion as a matter of common law.”114 Courts in another group of jurisdictions, including Arizona, Colorado, D.C., Minnesota, New Jersey, New York, Pennsylvania, Texas, and Washington, have held that a child had two legal parents and an equitable parent or a person statutorily entitled to seek custody.115 The Drafting Committee chose to follow this trend by including Alternative B based on its recognition of two things: that some children have established parent-child bonds with more than two people and that abruptly terminating established parent-child bonds can be harmful to the child.
Alternative B, however, stakes out a “narrow, limited approach.”116 The standard for finding that a child has more than two parents under Alternative B is quite high; under Alternative B, a court can determine that “a child has more than two legal parents only when failure to do so would cause detriment to the child.”117 Thus, it is only in rare cases that this standard would be met. In contrast, some of the jurisdictions that permit a court to find that a child has more than two legal parents utilize a lower substantive standard. For example, Delaware and Maine permit a court to find that a child has a de facto parent and two other legal parents any time the de facto parent standard is met; no showing of detriment is required.118 Under the new Vermont provisions, “court may determine that a child has more than two parents if the court finds that it is in the best interests of the child to do so.”119
While the Committee wanted to provide states with an option of recognizing more than two parents in some cases, there was concern that some states would oppose this approach. To ensure that opposition to this one subsection did not prevent a state from adopting the Act, the UPA (2017) includes an alternative. Under Alternative A, “[t]he court may not adjudicate a child to have more than two parents under this [act].”120
D. Parentage of Children Conceived Through Sexual Assault
The UPA (2017) includes an entirely new provision—Section 614—that addresses the parentage of a child conceived through sexual assault. “Various studies over the last two decades estimate that there are between 17,000 and 32,000 rape-related pregnancies in the United States each year.”121 Congress responded to this reality in 2015 when it enacted the Rape Survivor Child Custody Act.122 Under the federal statute, federal financial incentives are provided to states that enact laws “that allow the mother of any child that was conceived through rape to seek court-ordered termination of the parental rights of her rapist with regard to that child, which the court is authorized to grant upon clear and convincing evidence of rape.”123 If adopted, Section 614 helps states comply with this federal statute.
In terms of the substance of the provision, “[t]his section permits a court to declare that the perpetrator is not a parent if the person has been convicted of sexual assault or if the sexual assault is proved by clear and convincing evidence in the proceeding and the child was conceived as a result [of] the sexual assault. The latter method of proof must be included to meet the requirements of the federal statute.”124 What conduct falls within the scope of the Section is left for states to determine. “A state may, for example, want to exclude from coverage some forms of statutory rape where the individuals are close in age, or incest between consenting adults who do not have a parent-child relationship.”125
The action to declare the nonparentage of a perpetrator of sexual assault generally must be brought within two years of the child’s birth.126 As noted in the official comment, this two-year limitations period is consistent with other provisions in the Act that impose a similar limitations period.127 “Even if the action is timely filed, a court must deny the request to preclude the man’s parentage of the child if the man has developed a bonded and dependent parent-child relationship with the child. This exception is consistent with the act’s focus on the best interest of the child, and with the act’s goal of protecting established parent-child bonds.”128 A number of states have statutes that contain similar exceptions.129 In cases in which the court declares the person to be a nonparent, the court shall nonetheless “require the man [to pay] child support, birth-related costs, or both, unless the woman requests otherwise and the court determines that granting the request is in the best interest of the child.”130
The UPA (1973) addressed only one specific type of assisted reproduction. Section 5 of UPA (1973) addressed the parentage of children born through “artificial insemination” to a married husband and wife.131 The Comment to Section 5 acknowledged that the UPA (1973) left many forms of assisted reproductive technology (ART) unaddressed.132 Specifically, the UPA (1973) did not address assisted reproduction utilized by single women or unmarried couples or any forms of surrogacy. Although it was not exhaustive in its coverage, the drafters determined that it was nonetheless “useful . . . to single out and cover in this Act at least one fact situation that occurs frequently.”
In the years after 1973, the use of other forms of assisted reproduction, including surrogacy, increased. By the late 1990s, the ULC determined that it should “venture into [the] controversial subject [of surrogacy].”133 Ultimately, the Drafting Committee of the UPA (2002) chose to permit and regulate surrogacy. In recognition of the mixed position of the states on the subject at that time, the Article—Article 8—was bracketed, meaning its adoption was optional for the states. Article 8 of the UPA (2002) covered both gestational surrogacy and genetic (also called “traditional”) surrogacy. The UPA (2002) applied the same rules to both types of surrogacy agreements. These rules followed an adoption-based model that utilized a fair amount of court involvement and oversight. For example, the UPA (2002) required a home study, unless waived.134 It required two court proceedings—a validation action prior to pregnancy and another proceeding to confirm parentage after birth. Moreover, the court was given discretion whether to validate even fully compliant agreements.135 This adoption-like process did not prove to be attractive to the states; only two states—Utah and Texas—adopted Article 8 of the UPA (2002).136 In addition, in the over fifteen years since the UPA (2002) was promulgated, its surrogacy model became increasingly out of step with contemporary surrogacy law and practice.
Accordingly, Article 8 of the UPA (2017) is completely revamped. This update includes a number of important changes. First, the UPA (2017) sets forth a number of requirements that apply to all forms of surrogacy agreements to better safeguard the interest of all parties to the agreement, including the person acting as a surrogate. These safeguards include a requirement that all parties “have independent legal representation . . . throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement”;137 a requirement that the intended parents “must pay for [the] independent legal representation” for the person acting as a surrogate;138 and a requirement that the person acting as a surrogate must be permitted “to make all health and welfare decisions regarding herself and her pregnancy.”139 These requirements were added to address the reality that there are often significant power differentials between the participants in a surrogacy arrangement, and to protect the right of individuals to make decisions about their own bodies.
Second, while these common requirements apply to all forms of surrogacy agreements, the UPA (2017) differentiates in some respects between gestational surrogacy and genetic surrogacy (also known as “traditional” surrogacy).140 This was a change from the UPA (2002), which applied identical rules to gestational and genetic surrogacy. The Drafting Committee decided to take a different approach in the UPA (2017).141
With respect to gestational agreements, the Act streamlines the process in a number of respects. It eliminates the requirement included in the UPA (2002) of pre-pregnancy validation and it provides that a compliant gestational agreement cannot be terminated after a successful transfer has occurred.142 The UPA (2017) also provides that upon birth, the intended parents are the legal parents of a child born as a result of a compliant gestational agreement as a matter of law; no court proceeding is required either before or after birth.143 While no court action is required in such cases, the Act permits the parties to obtain court orders establishing the parentage of the intended parents, and the Act permits these actions to be commenced prior to birth. Any such orders, however, do not become effective until after the birth of the child.144
At the same time, the Act adds additional procedural safeguards and substantive requirements for genetic surrogacy agreements. For example, the Act requires genetic surrogacy agreements to be validated prior to pregnancy.145 The Act also provides that a person acting as a genetic surrogate must be permitted to withdraw her consent up until seventy-two hours after the birth of the child.146
Some scholars, advocates, and policy makers disagree with this approach of treating gestational and genetic surrogacy differently in some respects.147 A foundational principle of the UPA (2017) is that biology is not necessarily dispositive as to parentage. One may argue that if that is true—that “biology does not necessarily make one a parent”—then it follows that “the surrogacy rules should apply equally, without regard to whether the surrogate is genetically related to the child.”148 The approach of the UPA (2017) to treat them differently, one may continue, “unnecessarily re-elevates the importance of genetic connections.”149 As attorney Richard Vaughn notes, one may also object to this approach on the ground that it creates additional cost and time hurdles and legal uncertainty with respect to the type of surrogacy—genetic surrogacy—that is less medically risky for the person acting as a surrogate and that eliminates the need for and risks associated with ova harvesting.150 These are important points, and they should be considered carefully by legislators and others working on surrogacy legislation.
The decision of the Drafting Committee to treat the two types of surrogacy differently in some respects was based a number of considerations. The Committee determined that from a practical perspective, treating both types of surrogacy identically did not reflect current treatment of surrogacy in state legislatures or in the courts. Today, thirty years after the first appellate court decision on surrogacy,151 very few states expressly permit genetic surrogacy by statute. Moreover, the few jurisdictions that do permit genetic surrogacy utilize an approach that is similar to the approach taken by the UPA (2017): while they permit and regulate genetic surrogacy agreements, they impose additional requirements on such agreements, as compared to gestational surrogacy agreements.152 Court decisions likewise typically treat the two types of surrogacy differently.153 Therefore, the approach of the UPA (2002) to treat genetic and gestational surrogacy agreements identically in all respects was not consistent with contemporary legislative or judicial approaches to the issue. “While ULC drafting committees seek to advance the law substantively, they also seek to draft laws that can be widely enacted, with the ultimate goal of uniformity throughout the nation.”154 Here, the Drafting Committee ultimately determined that the best way to further those goals was through the adopted approach of including both gestational and genetic surrogacy but treating them differently in some respects.
The UPA (2017) continues to permit and regulate all forms of surrogacy. By so doing, the Act sets forth a clear set of rules, requirements, and basic safeguards that apply to all surrogacy arrangements. As such, the Act provides greater clarity and certainty for all participants with regard to their rights and legal statuses, and it sets forth basic safeguards to protect the interests and dignity of all involved parties. At the same time, the provisions regarding genetic surrogacy erect additional safeguards and requirements in recognition of the political and legal realities on the ground.
F. Access to Information About Gamete Providers
The UPA (2017) includes a new article, Article 9, that addresses the ability of children conceived through assisted reproductive technology to access medical and identifying information regarding any gamete providers. According to recent reports, more than 1.5 percent of all children in the United States were conceived through IVF.155 That number does not include the much larger number of families who conceive children using the simpler processes of alternative or artificial insemination and intrauterine insemination.156 Professor Naomi Cahn asserts that the existing research (albeit limited at this point) “shows . . . that many donor-conceived individuals want to know more about their donors, and thousands of them have signed up for voluntary registries to try to find a match with their donors and donor-conceived siblings.”157 In recognition of this reality, and to bring the law of assisted reproduction in better alignment with trends in favor of providing adopted children with information about their birth parents, Article 9 seeks to codify and standardize procedures for providing children conceived through ART access to their gamete providers, if the children decide they want that information.
Article 9 stakes out a middle ground with respect to information disclosure. Article 9 does not require disclosure of the identity of any third-party gamete providers.158 It does, however, require sperm banks and fertility clinics to collect identifying and medical history information from all gamete providers and to obtain a declaration from all gamete providers addressing whether they would like their identity disclosed upon request once the child turns age eighteen.159 In addition, regardless of whether the gamete provider’s identity is disclosed, Article 9 requires covered facilities to make a good faith effort to disclose nonidentifying medical history information regarding the gamete provider upon request.160
Since its inception in 1973, a core goal of the UPA was to help states “fulfill the mandate of the Constitution” by “providing substantive legal equality for all children.”161 Consistent with this principle, the UPA (2017) reforms earlier iterations of the Act to “eliminate rules that discriminated against [various classes of] children,”162 and to better address the realities of today’s families. We are hopeful that the UPA (2017) will be as successful as the versions of the Act that preceded it.
1. See Unif. Parentage Act (Unif. L. Comm’n 2017), https://www.uniformlaws.org/committees/community-home/librarydocuments?communitykey=c4f37d2d-4d20-4be0-8256-22dd73af068f&tab=librarydocuments. The Final Act, with Comments, is also included as the Appendix to this Article. The UPA was not the first uniform act to address issues of parentage. The Uniform Illegitimacy Act was promulgated in 1922, the Blood Tests to Determine Paternity Act was promulgated in 1952, and the Uniform Paternity Act was promulgated in 1969. See Unif. Parentage Act prefatory note (Unif. Law Comm’n 1973). The Uniform Probate Code also addresses issues related to parentage.
2. Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J.F. 589, 597 (2018).
3. The ULC was previously known as the National Conference of Commissioners on Uniform State Laws (NCCUSL).
4. Overview, Unif. L. Comm’n, http://www.uniformlaws.org/aboutulc/overview (last visited Sept. 30, 2019).
5. Joslin, Nurturing Parenthood, supra note 2, at 598 (footnote omitted); see also Unif. Parentage Act refs. & annos. (Unif. Law Comm’n 1973) (listing state adoptions); Unif. Parentage Act (2000), Unif. L. Comm’n, http://www.uniformlaws.org/committees/community-home?CommunityKey=5d5c48d6-623f-4d01-9994-6933ca8af315 (last visited Sept. 30, 2019) (listing the following states as adopters of the UPA (2000/2002): Alabama, Delaware, Illinois, Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming).
6. Unif. Parentage Act (2017), Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?communitykey=c4f37d2d-4d20-4be0-8256-22dd73af068f (last visited Sept. 30, 2019).
7. Unif. Parentage Act prefatory note (Unif. Law Comm’n 1973) (citing Harry D. Krause, Bringing the Bastard into the Great Society—A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829 (1966)); see also Harry D. Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967) [hereinafter Krause, Equal Protection].
8. Krause, Equal Protection, supra note 7, at 498 (arguing that this “legislatively enforced inequality between legitimate and illegitimate children may rest on . . . prejudice”).
9. See, e.g., Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) (holding unconstitutional Louisiana workers’ compensation statutes that denied equal treatment to dependent unacknowledged illegitimate children); Levy v. Louisiana, 391 U.S. 68 (1968) (holding unconstitutional Louisiana wrongful death statute that denied recovery to illegitimate children for the wrongful death of their mother).
10. Weber, 406 U.S. at 175 (footnote omitted).
11. Unif. Parentage Act prefatory note (Unif. Law Comm’n 2002) (“A series of United States Supreme Court decisions invalidating state inheritance, custody, and tort laws that disadvantaged out-of-wedlock children provided . . . both the impetus and a receptive climate for the Conference to promulgate UPA (1973).”).
12. Unif. Parentage Act prefatory note (Unif. Law Comm’n 1973).
13. Id.; see also id. § 2 (“The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”); id. § 2 cmt. (“Sections 1 and 2 [of the UPA (1973) are] the major substantive sections of the Act [and] establish the principle that regardless of the marital status of the parents, all children and all parents have equal rights with respect to each other.”).
14. Joslin, Nurturing Parenthood, supra note 2, at 597.
15. Unif. Parentage Act prefatory note (Unif. Law Comm’n 2002).
16. That Section is now known as the ABA Section of Civil Rights and Social Justice.
17. See, e.g., John J. Sampson, Uniform Parentage Act (2000) with Prefatory Note and Comments, 35 Fam. L.Q. 83, 105 n.15 (2001) [hereinafter Sampson, UPA (2000)] (including the following quote from the ABA-IRR objection letter: “The new UPA is inconsistent with existing ABA policies affirming the principle of equal protection for all children without regard to their parents’ marital status.”); id. at 108 n.17 (including the following quote from the ABA-IRR objection letter: “In contrast with the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA largely ignores the needs of children born outside of marriage, representing a step backward from the 1973 version. In particular: Section 204 eliminates the preexisting presumption of parenthood for an unmarried man who takes a child into his home and holds the child out as his own.”); id. at 162 n.73 (including the following quote from the ABA-IRR objection letter: “In contrast with the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA largely ignores the needs of children born outside of marriage, representing a step backward from the 1973 version. In particular: With respect to assisted reproduction, Article 7 precludes an unmarried partner form [sic] establishing parentage based on his intentions, thereby leaving a child born to an unmarried couple through assisted reproduction with only one parent. See § 703.”).
18. John J. Sampson, Preface to the Amendments to the Uniform Parentage Act (2002), 37 Fam. L.Q. 1 (2003) [hereinafter Sampson, Preface to the UPA (2002)].
19. See, e.g., Unif. Parentage Act § 204 cmt. (Unif. Law Comm’n 2002) (“Originally the 2000 version of the new Act limited presumptions of paternity to those related to marriage. The objection by the ABA Steering Committee on the Unmet Legal Needs of Children and the Section of Individual Rights and Responsibilities that this could result in differential treatment of children born to unmarried parents resulted in the revision to this section.”).
20. Sampson, Preface to the UPA (2002), supra note 18, at 2 (noting that “both assisted reproduction issues and gestational agreements were limited to married couples”).
21. See id. at 3 n.5. The other representatives from ABA-IRR were Mark Agrast, Professor Joan Hollinger, and Shannon Minter. Id.
22. In the interim, a few states, including Texas, enacted the revised UPA. See id. at 4. As a result, the version of the UPA in Texas, for example, departs in some respects from the UPA (2002).
23. The holding-out presumption of the UPA (2002) applies only if the man “resided in the same household with the child and openly held out the child as his own” “for the first two years of the child’s life.” Unif. Parentage Act § 204(a)(5) (Unif. Law Comm’n 2002) (emphasis added). There was no similar time requirement in the holding-out presumption of the UPA (1973). Unif. Parentage Act § 4(a)(4) (Unif. Law Comm’n 1973) (“A man is presumed to be the natural father of a child if . . . while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.”).
24. Sampson, Preface to the UPA (2002), supra note 18, at 3.
27. See, e.g., Unif. Parentage Act § 204(a)(1) (Unif. Law Comm’n 2002) (“A man is presumed to be the father of a child if . . . he and the mother of the child are married to each other and the child is born during the marriage.”); id. § 703 (“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.”).
It is important to note, however, that both the UPA (1973) and the UPA (2002) include a section clarifying that provisions regarding the establishment of paternity must be applied equally to establish maternity where that issue is presented. Unif. Parentage Act § 21 (Unif. Law Comm’n 1973) (“Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this Act applicable to the father and child relationship apply.”); Unif. Parentage Act § 106 (Unif. Law Comm’n 2002) (“Provisions of this [Act] relating to determination of paternity apply to determinations of maternity.”).
28. 135 S. Ct. 2584 (2015).
29. Memorandum from Jamie Pedersen, Chair, Study Comm. on Possible Amendments to the Unif. Parentage Act, to the Comm. on Scope & Program 1 (June 12, 2015), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=8c23d4ba-928f-66ef-5f31-1f4240bc952e&forceDialog=0.
30. Id. at 3.
31. Id. For an example of such a decision, see In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App. Apr. 27, 2017) (interpreting the Texas version of the UPA (2000) and reasoning that “[t]he substitution of the word ‘spouse’ for the words ‘husband’ and ‘wife’ [in the marital presumption and the assisted reproduction provision] would amount to legislating from the bench, which is something that we decline to do”).
32. This Part is adapted from Memorandum from Jamie Pedersen, Chair & Courtney Joslin, Reporter, Unif. Parentage Act Drafting Comm., to the Unif. Law Comm’rs (June 9, 2017), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=4cba0e51-85bd-98cd-4aa6-b5c7b3fe3c55&forceDialog=0 [hereinafter 2017 Annual Meeting Issues Memo].
33. Letter from Anita Ramasastry, Chair, ULC Exec. Comm., to Jamie Pedersen (Nov. 23, 2015), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=708646ee-7484-6ae8-1ce9-04d08ffa30dc&forceDialog=0 [hereinafter 2015 Scope & Program Resolution].
34. 2017 Annual Meeting Issues Memo, supra note 32, at 1.
35. 2015 Scope & Program Resolution, supra note 33.
36. 2017 Annual Meeting Issues Memo, supra note 32, at 1.
37. Commissioners who were current or former legislators include Lesley Cohen (NV), Bart Davis (ID), Melissa Hortman (MN), Claire Levy (CO), and Jamie Pedersen (WA).
38. 2017 Annual Meeting Issues Memo, supra note 32, at 1.
39. Id. at 1–2.
40. Id. at 2.
41. Unif. Parentage Act (2017), supra note 6.
42. Unif. Parentage Act § 204(a)(1) (Unif. Law Comm’n 2002) (emphasis added).
43. Id. § 703 (emphasis added).
44. Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015).
45. Pavan v. Smith, 137 S. Ct. 2075, 2077 (2017) (“When a married woman gives birth in Arkansas, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate—regardless of his biological relationship to the child. According to the court below, however, Arkansas need not extend that rule to similarly situated same-sex couples . . . . Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ we reverse the state court’s judgment.” (citation omitted)).
46. Roe v. Patton, No. 2:15-CV-00253-DB, 2015 WL 4476734 (D. Utah July 22, 2015).
47. Utah Code Ann. §§ 78B-15-201(2)(e), -703, -704 (West 2019).
48. Patton, 2015 WL 4476734, at *3.
49. McLaughlin v. Jones ex rel. Cty. of Pima, 401 P.3d 492, 498 (Ariz. 2017), cert. denied sub nom. McLaughlin v. McLaughlin, 138 S. Ct. 1165 (2018).
50. Every version of the UPA includes such a mandate. See, e.g., Unif. Parentage Act § 21 (Unif. Law Comm’n 1973); Unif. Parentage Act § 106 (Unif. Law Comm’n 2002); Unif. Parentage Act § 107 (Unif. Law Comm’n 2017).
51. See, e.g., Elisa B. v. Superior Court, 117 P.3d 660, 665 (Cal. 2005) (“Although, as noted above, the UPA contains separate provisions defining who is a mother and who is a father, it expressly provides that in determining the existence of a mother and child relationship, ‘[i]nsofar as practicable, the provisions of this part applicable to the father and child relationship apply.’ (§ 7650.)”); In re Parental Responsibilities of A.R.L., 318 P.3d 581, 584–85 (Colo. App. 2013) (holding that the state’s statutory gender neutrality provision required the court to apply the gendered holding-out presumption equally to a woman); Smith v. Gordon, 968 A.2d 1, 6 (Del. 2009) (“Section 8-106 [based on section 106 of the 2002 UPA] provides that provisions relating to paternity determinations apply to maternity determinations as well. Therefore, a woman whose maternity of the child is to be adjudicated can also bring an action to adjudicate parentage.” (footnote omitted)); Frazier v. Goudschaal, 295 P.3d 542, 547 (Kan. 2013) (holding, as a matter of statutory interpretation, that paternity provisions of the Kansas UPA, based on the 1973 UPA, must be applied equally to determine maternity); Partanen v. Gallagher, 59 N.E.3d 1133, 1137 (Mass. 2016) (holding that the state’s gender neutrality provision, which is based on section 21 of the 1973 UPA, required the court to apply the paternity presumptions equally to determine maternity); A.L.S. ex rel. J.P. v. E.A.G., No. A10-443, 2010 WL 4181449 (Minn. Ct. App. Oct. 26, 2010) (holding that the gender neutrality provision based on section 21 of the UPA required the court to apply provisions to establish paternity equally to establish maternity); St. Mary v. Damon, 309 P.3d 1027, 1032 (Nev. 2013) (relying on a statutory gender neutrality provision based on the 1973 UPA and holding that the provision allowing a man to establish parentage based on “unrebutted evidence of a genetic relationship between the father and the child” must be applied equally to a woman); In re Guardianship of Madelyn B., 98 A.3d 494, 499 (N.H. 2014) (holding that the state’s gender neutrality provision, which is based on section 21 of the 1973 UPA, required the court to apply the paternity presumptions equally to determine maternity); Chatterjee v. King, 280 P.3d 283, 293 (N.M. 2012) (holding that the state’s then applicable paternity presumptions based on the 1973 UPA must be applied equally to determine maternity).
52. See, e.g., Elisa B., 117 P.3d at 665; A.R.L., 318 P.3d at 584–85; Madelyn B., 98 A.3d at 499; Chatterjee, 280 P.3d at 293.
53. See, e.g., In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App. Apr. 27, 2017) (“The word ‘husband’ and the word ‘wife’ are not expressly defined in the Texas Family Code. . . . The substitution of the word ‘spouse’ for the words ‘husband’ and ‘wife’ would amount to legislating from the bench, which is something that we decline to do.”).
55. The Texas Supreme Court ultimately declined to review the decision in In re A.E. There are, however, a number of similar cases pending in other Texas courts.
56. Joslin, Nurturing Parenthood, supra note 2, at 597–99.
57. See, e.g., Unif. Parentage Act § 201(a) (Unif. Law Comm’n 2002) (providing a list of ways to establish “the mother-child relationship”); id. § 201(b) (providing a nonoverlapping list of ways to establish “the father-child relationship”).
58. Unif. Parentage Act § 201 (Unif. Law Comm’n 2017).
59. See, e.g., id. § 204. In addition to the various marital presumptions, the holding-out provision now provides that an “individual is presumed to be a parent of a child if . . . the individual resided in the same household with the child for the first two years of the life of the child, including any period of temporary absence, and openly held out the child as the individual’s child.” Id. § 204(a)(2).
60. Id. § 204(a)(1)(A).
61. See also Memorandum from Courtney Joslin, Reporter, to UPA Drafting Comm. (Jan. 31, 2016), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=7907c1cc-7516-73ad-5807-e0e0f87fdda3&forceDialog=0 [hereinafter 2016 Marital Presumption Memo].
62. Unif. Parentage Act § 201(1) (Unif. Law Comm’n 2017) (“A parent-child relationship is established between an individual and a child if . . . the individual gives birth to the child[, except as otherwise provided in [Article] 8].” (alterations in original)). For support for a variation of a fully gender-neutral marital presumption, see Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260, 2339–40 (2017).
63. The seven jurisdictions are California, D.C., Illinois, Maine, New Hampshire, Vermont, and Washington. Cal. Fam. Code §§ 7540, 7611(a) (West 2019); D.C. Code Ann. § 16-909 (2019); 750 Ill. Comp. Stat. Ann. 46/204(1) (2019); Me. Stat. tit. 19-A, § 1881(1) (2019); N.H. Rev. Stat. Ann. § 168-B:2(V) (2019); Vt. Stat. Ann. tit. 15C, § 401(a)(1) (2019); Wash. Rev. Code § 26.26A.115(1)(a)(i) (2019); see also 2016 Marital Presumption Memo, supra note 61 (surveying state law developments as of January 2016).
64. Washington briefly had a fully gender-neutral marital presumption. Wash. Rev. Code § 26.26.116(1)(a) (effective through Dec. 31, 2018) (“[A] person is presumed to be the parent of a child if . . . [t]he person and the mother or father of the child are married to each other . . . and the child is born during the marriage.”). On January 1, 2019, however, that provision was replaced by a partially gender-neutral marital presumption, as a result of Washington’s enactment of the UPA (2017). Wash. Rev. Code § 26.26A.115(1)(a)(i) (2019) (“An individual is presumed to be a parent of a child if . . . [t]he individual and the woman who gave birth to the child are married to . . . each other and the child is born during the marriage . . . .”).
65. Unif. Parentage Act § 703 (Unif. Law Comm’n 2002) (“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.”).
66. Unif. Parentage Act § 703 (Unif. Law Comm’n 2017) (emphasis added).
67. See, e.g., Unif. Parentage Act § 102(13) (Unif. Law Comm’n 2017) (“‘Intended parent’ means an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.”).
68. See, e.g., 42 U.S.C. § 666(a)(5)(D)(ii) (2018) (providing that “a signed voluntary acknowledgment of paternity is considered a legal finding of paternity”); id. § 666(a)(5)(C)(iv) (providing that states must “give full faith and credit to such an affidavit signed in any other State according to its procedures”); see also Courtney G. Joslin, Travel Insurance: Protecting Lesbian and Gay Parent Families Across State Lines, 4 Harv. L. & Pol’y Rev. 31, 44 (2010) (“If such an acknowledgment is validly signed by both parties and the period for rescission has elapsed, the acknowledgment is treated as a judicial adjudication of parentage, and states are required to give full faith and credit to this determination.”).
69. Leslie Joan Harris, Voluntary Acknowledgments of Parentage for Same-Sex Couples, 20 Am. U. J. Gender Soc. Pol’y & L. 467, 475 (2012) (“The federal government provides millions of dollars to states to fund their child welfare programs, provided that they enact a wide range of statutes and regulations required by federal laws. The federal funding is so critical to the functioning of the state programs that all states comply with these federal mandates, for the most part.”).
70. See, e.g., Harris, supra note 69, at 469; Joslin, Nurturing Parenthood, supra note 2, at 603. The states that do or soon will permit women to establish parentage through VAPs or VAP-like procedures include California, Maryland, Massachusetts, Nevada, Vermont, and Washington. 2018 Cal. Legis. Serv. ch. 876 (West) (A.B. 2684) (effective Jan. 1, 2020); Md. Code Ann., Family L. § 5-1028 (West 2019); Partanen v. Gallagher, 59 N.E.3d 1133, 1139 (Mass. 2016) (“Indeed, Gallagher concedes that a voluntary acknowledgment of parentage may be executed by a same-sex couple, even if one member of the couple is not biologically related to the children, and that, had an acknowledgment been executed here, it would have established Partanen as the children’s legal parent.”); Nev. Rev. Stat. §§ 126.053, .680 (2019); Vt. Stat. Ann. tit. 15C, § 301 (2019); Wash. Rev. Code § 26.26A.200 (2019); see also Alanna Durkin Richer, For Same-Sex Couples, a New Path to Legal Parenthood, AP News (Nov. 23, 2018), https://www.apnews.com/85b45896426e4904b4796ed39f608007.
71. And, indeed, the federal statute precludes states from adding any kind of judicial step to the process. 42 U.S.C. § 666(a)(5)(E) (“Procedures under which judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity.”); see also Harris, supra note 69, at 476 (“The state cannot condition the validity of the acknowledgment on any kind of proceeding.”).
72. 42 U.S.C. § 666(a)(5)(C)(iv) (providing that state procedures must “give full faith and credit to such an affidavit signed in any other State according to its procedures”).
73. For a more detailed discussion of how the existing system perpetuates existing inequalities, see Douglas NeJaime, supra note 62.
74. Joslin, Nurturing Parenthood, supra note 2, at 604.
76. Id. at 603–05.
77. See, e.g., Unif. Parentage Act § 4 (Unif. Law Comm’n 1973); Unif. Parentage Act § 204 (Unif. Law Comm’n 2002); Unif. Parentage Act § 204 (Unif. Law Comm’n 2017).
78. See, e.g., Unif. Parentage Act § 204(a)(1) (Unif. Law Comm’n 2002) (“A man is presumed to be the father of a child if . . . he and the mother of the child are married to each other and the child is born during the marriage.”).
79. For example, the presumption generally cannot be overcome after the child’s second birthday. See, e.g., id. § 607(a) (“Except as otherwise provided in subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two years after the birth of the child.”); see also Unif. Parentage Act § 608(b) (Unif. Law Comm’n 2017). Moreover, even if the presumption is challenged within the first two years of the child’s life, a court can declare the spouse to be a parent notwithstanding that person’s lack of genetic connection to the child. See, e.g., Unif. Parentage Act § 608 (Unif. Law Comm’n 2002) (permitting a court to deny a request for genetic testing “if the court determines that: (1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and (2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father”); see also Unif. Parentage Act § 608(c)(3) (Unif. Law Comm’n 2017) (providing that “[i]f the presumed parent is not identified . . . as a genetic parent of the child and the presumed parent or the woman who gave birth to the child challenges the presumed parent’s parentage of the child, the court shall adjudicate the parentage of the child in the best interest of the child based on the factors under Section 613(a) and (b)”).
80. Unif. Parentage Act § 4(a)(4) (Unif. Law Comm’n 1973).
81. See, e.g., In re Nicholas H., 46 P.3d 932, 941 (Cal. 2002) (holding that the holding-out presumption was not necessarily rebutted by evidence that the man was not the child’s genetic parent).
82. As noted above, the holding-out presumption was eliminated from the 2000 version of the UPA. This elimination of this important provision was a key reason the UPA was then withdrawn from consideration by the ABA House of Delegates in 2001. The re-inclusion of the holding-out presumption was critical to the negotiations with the ABA that resulted in the UPA (2002). Unif. Parentage Act § 204(a)(5) (Unif. Law Comm’n 2002).
83. Unif. Parentage Act § 204(a)(1)(A) (Unif. Law Comm’n 2017).
84. Id. § 204(a)(2).
85. Id. § 204(a)(1)(A).
86. Courtney G. Joslin, De Facto Parentage and the Modern Family, 40 Fam. Advoc. 31, 32 (Spring 2018).
89. Unif. Parentage Act § 4(a)(4) (Unif. Law Comm’n 1973).
90. Unif. Parentage Act § 204(a)(5) (Unif. Law Comm’n 2002) (emphasis added).
91. Unif. Parentage Act § 609 cmt. (Unif. Law Comm’n 2017).
92. See, e.g., Cal. Fam. Code § 7611(d) (West 2019); Colo. Rev. Stat. § 19-4-105(1)(d) (2019); Haw. Rev. Stat. § 584-4(a)(4) (2019); Ind. Code § 31-14-7-2(a) (2019); Minn. Stat. § 257.55(1)(d) (2019); Nev. Rev. Stat. § 126.051(1)(d) (2019); N.H. Rev. Stat. Ann. § 168-B:3(I)(d) (2019); N.J. Stat. Ann. § 9:17-43(a)(4), (5) (2019); Tenn. Code Ann. § 36-2-304(4) (2019).
93. Unif. Parentage Act § 609(a)(2) (Unif. Law Comm’n 2017) (“A proceeding to establish parentage of a child under this section may be commenced only by an individual who . . . claims to be a de facto parent of the child.”); see also 2017 Annual Meeting Issues Memo, supra note 32, at 4 (“[O]nly the alleged de facto parent can file an action under Section 609.”). In addition, the action must be initiated “before the child [who is still alive] attains 18 years of age.” Unif. Parentage Act § 609(b) (Unif. Law Comm’n 2017). This limitation was included to address probate-related concerns. See 2017 Annual Meeting Issues Memo, supra note 32, at 4.
94. 2017 Annual Meeting Issues Memo, supra note 32, at 4.
95. Unif. Parentage Act § 602(2) (Unif. Law Comm’n 2017).
96. Id. § 602(5).
97. 2017 Annual Meeting Issues Memo, supra note 32, at 3.
98. Unif. Parentage Act § 609(d) (Unif. Law Comm’n 2017).
101. 2017 Annual Meeting Issues Memo, supra note 32, at 4.
102. Unif. Parentage Act § 609(d)(7) (Unif. Law Comm’n 2017).
103. Id. § 609(d).
104. Id. § 613(c) (Alternative B).
105. Del. Code Ann. tit. 13, § 8-201(a)(4), (b)(6) (2019).
106. See, e.g., id.; Me. Stat. tit. 19-A, § 1891(5) (2019) (“The adjudication of a person under this subchapter as a de facto parent does not disestablish the parentage of any other parent.”). One Delaware court, however, held that applying the de facto parent provision “where the child already has two fit parents, violates the due process rights of the child’s biological parents.” Bancroft v. Jameson, 19 A.3d 730, 731 (Del. Fam. Ct. 2010).
107. Unif. Parentage Act § 609 cmt. (Unif. Law Comm’n 2017).
108. If the man obtained an order declaring him to be a parent, however, the woman then would be entitled to seek an order requiring him to pay child support.
109. Unif. Parentage Act § 4(b) (Unif. Law Comm’n 1973).
110. Unif. Parentage Act § 613 cmt. (Unif. Law Comm’n 2017).
111. See, e.g., D.C. Code §§ 16-831.01 et seq. (2019); Reipe v. Reipe, 91 P.3d 312, 316 (Ariz. Ct. App. 2004); In re Parental Responsibilities of M.W., 292 P.3d 1158 (Colo. App. 2012); LaChapelle v. Mitten, 607 N.W.2d 151, 157 (Minn. Ct. App. 2000); K.A.F. v. D.L.M., 96 A.3d 975 (N.J. Super. Ct. App. Div. 2014); Frank G. v. Renee P.-F., 37 N.Y.S.3d 155 (App. Div. 2016); Dawn M. v. Michael M., 47 N.Y.S.3d 898, 899 (Sup. Ct. 2017); David S. v. Samantha G., No. V25633/17, 2018 WL 1749894 (N.Y. Fam. Ct. Apr. 10, 2018); Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. Ct. 2007); In re Interest of B.N.L.-B., 523 S.W.3d 254 (Tex. App. 2017); In re Custody of M.J.M., 294 P.3d 746 (Wash. Ct. App. 2013).
For more detailed information about developments in this area, see, for example, Courtney G. Joslin et al., Lesbian, Gay, Bisexual and Transgender Family Law § 7:14 (2019); Naomi Cahn & June Carbone, Custody and Visitation in Families with Three (or More) Parents, 56 Fam. Ct. Rev. 399 (2018); June Carbone & Naomi Cahn, Parents, Babies, and More Parents, 92 Chi.-Kent L. Rev. 9 (2017). For exploration of developments in the United States, Canada, and England regarding recognition of multiparent families, see Haim Abraham, A Family Is What You Make It? Legal Recognition and Regulation of Multiple Parents, 25 Am. U. J. Gender Soc. Pol’y & L. 405, 408 (2017).
112. Unif. Parentage Act § 613 cmt. (Unif. Law Comm’n 2017).
113. Cal. Fam. Code § 7612(c) (West 2019) (“In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.”); Del. Code Ann. tit. 13, § 8-201(a)(4), (b)(6), (c) (2019) (requiring the court to declare a person to be a de facto parent so long as the person meets the statutory requirements); J.W.S. Jr. v. E.M.S., Nos. CS11-01557, CS13-01083, 2013 WL 6174814 (Del. Fam. Ct. May 29, 2013) (recognizing both biological father and former husband as legal parents); Me. Stat. tit. 19-A, § 1853(2) (2019) (“Consistent with the establishment of parentage under this chapter, a court may determine that a child has more than 2 parents.”); Vt. Stat. Ann. tit. 15C, § 206(b) (2019) (“Consistent with the establishment of parentage under this chapter, a court may determine that a child has more than two parents if the court finds that it is in the best interests of the child to do so.”); Wash. Rev. Code § 26.26A.460(3) (2019) (“The court may adjudicate a child to have more than two parents under this chapter if the court finds that failure to recognize more than two parents would be detrimental to the child.”); see also Memorandum from Courtney Joslin, Reporter, to UPA Drafting Comm. (Oct. 5, 2016), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=4bba6afd-774b-7d2d-c8c4-8c310f85c51b&forceDialog=0.
114. Unif. Parentage Act § 613 cmt. (Unif. Law Comm’n 2017) (citing Warren v. Richard, 296 So. 3d 813, 815 (La. 1974)).
115. See, e.g., Joslin et al., supra note 111, § 7:14.
116. Unif. Parentage Act § 613 cmt. (Unif. Law Comm’n 2017).
117. Id. California and Washington likewise utilize a detriment threshold. Cal. Fam. Code § 7612(c); Wash. Rev. Code § 26.26A.460(3). In contrast, Vermont utilizes a best interest of the child standard. Vt. Stat. Ann. tit. 15C, § 206(b).
118. See, e.g., Del. Code Ann. tit. 13, § 8-201(a)(4), (b)(6); Me. Stat. tit. 19-A, § 189.
119. Vt. Stat. Ann. tit. 15C, § 206(b).
120. Unif. Parentage Act § 613(c) (Unif. Law Comm’n 2017) (Alternative A).
121. Parental Rights and Sexual Assault, Nat’l Conf. St. Legislatures (June 21, 2019), http://www.ncsl.org/research/human-services/parental-rights-and-sexual-assault.aspx.
122. 34 U.S.C. §§ 21301–21308 (2019).
123. Id. § 21303.
124. Unif. Parentage Act § 614 cmt. (Unif. Law Comm’n 2017).
126. Id. § 614(d) (“Unless Section 309 or 607 applies, a woman must file a pleading making an allegation under subsection (b) not later than two years after the birth of the child.”).
127. Id. § 614 cmt.; see also id. § 608 (imposing a two-year statute of limitations to challenges to parentage presumptions).
128. Id. § 614 cmt.
129. See, e.g., Haw. Rev. Stat. § 571-61(5)(F) (2019) (providing that the court is not authorized to terminate the genetic father’s parental rights under the provision if “subsequent to the date of the sexual assault, the child’s natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child”); Mich. Comp. Laws § 722.1445(3) (2019) (providing that the provision permitting the court to find that the perpetrator of sexual assault is not a legal parent does not apply “if, after the date of the alleged nonconsensual sexual penetration described in subsection (2), the biological parents cohabit and establish a mutual custodial environment for the child”).
130. Unif. Parentage Act § 614(f)(3) (Unif. Law Comm’n 2017).
131. Unif. Parentage Act § 5(a) (Unif. Law Comm’n 1973) (“If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.”). The donor insemination provision—section 5(b)—was likewise limited to use of donor gametes by a married couple.
132. Id. § 5 cmt. (“This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination.”).
133. Unif. Parentage Act art. 8 cmt. (Unif. Law Comm’n 2002).
134. Id. § 803(b)(2) (requiring that, “unless waived by the court, the [relevant child-welfare agency] has made a home study of the intended parents and the intended parents meet the standards of suitability applicable to adoptive parents”).
135. Id. § 803(a) (“If the requirements of subsection (b) are satisfied, a court may issue an order validating the gestational agreement and declaring that the intended parents will be the parents of a child born during the term of the . . . agreement.”).
136. The nine other states that enacted the UPA (2002) chose not to adopt Article 8. This is true even though a number of them did enact statutory provisions permitting surrogacy.
137. Unif. Parentage Act § 802(a)(5) (person acting as a surrogate) & (b)(4) (intended parents) (Unif. Law Comm’n 2017); see also id. § 803(7).
138. Id. § 803(8).
139. Id. § 804(7).
140. See, e.g., id. at art. 8 cmt. (“While UPA (2017) continues to permit both types of surrogacy, UPA (2017) imposes additional safeguards or requirements on genetic surrogacy agreements.”).
141. See, e.g., id. (“This differentiation between genetic and gestational surrogacy is intended to reflect both the factual differences between the two types of surrogacy as well as the reality that policy makers view these two forms of surrogacy as being quite different.”).
142. Id. § 808(a) (“A party to a gestational surrogacy agreement may terminate the agreement, at any time before an embryo transfer, by giving notice of termination in a record to all other parties.”).
143. Id. § 809(a) (“Except as otherwise provided . . . , on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child.”).
144. Id. § 811(b) (“The court may issue an order or judgment [declaring the intended parents to be parents] before the birth of the child. The court shall stay enforcement of the order or judgment until the birth of the child.”).
145. Id. § 813(a) (“Except as otherwise provided in Section 816, to be enforceable, a genetic surrogacy agreement must be validated by the [designate court].”).
146. Id. § 814(a)(2) (“A genetic surrogate . . . may withdraw consent to the agreement any time before 72 hours after the birth of a child conceived by assisted reproduction under the agreement.”). In contrast, the agreement is binding on the intended parents once a successful gamete or embryo transfer has occurred. Id. § 814(a)(1).
147. See, e.g., Sara L. Ainsworth, Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States, 89 Wash. L. Rev. 1077, 1115 (2014) (“Further, as explained above, if women’s health is a priority, then surrogacy regulation should not insist upon gestational—as opposed to traditional—surrogacy, as traditional surrogacy imposes fewer health risks on the pregnant woman.”).
148. Joslin, Nurturing Parenthood, supra note 2, at 609–10.
150. Richard Vaughn, UPA 2017: An Improvement—Except Where Genetic Surrogacy Is Concerned, 52 Fam. L.Q. 471, 474 (2018) (“Genetic surrogacy, in which the surrogate is also the egg donor, can be significantly cheaper and less time-consuming.”).
151. In re Baby M, 537 A.2d 1227, 1234 (N.J. 1988).
152. See, e.g., Memorandum from Courtney Joslin, Reporter, to UPA Drafting Comm. (Feb. 8, 2016), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=00ecb070-1507-aee1-91a2-4f1f71b89be2&forceDialog=0; see also P.M. v. T.B., 907 N.W.2d 522, 531 (Iowa 2018) (“In the minority of states with statutes specifically addressing surrogacy, the enactments generally impose greater restrictions on traditional surrogacies[.]”).
153. See, e.g., J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007) (“[W]e would be remiss to leave unstated the obvious fact that a gestational surrogate, whose pregnancy does not involve her own egg, may have a different legal position from a traditional surrogate, whose pregnancy does involve her own egg.”).
154. Joslin, Nurturing Parenthood, supra note 2, at 610.
155. Karen Kaplan, More Than 1.5% of American Babies Owe Their Births to IVF, Report Says, L.A. Times (Mar. 3, 2015), https://www.latimes.com/science/sciencenow/la-sci-sn-ivf-live-births-success-rate-20150303-story.html.
156. The CDC numbers only track pregnancies resulting from IVF. One study reported that 60,000 children were born in 1998 as the result of donated sperm. See, e.g., Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 Berkeley J. Gender L. & Just. 18, 27 (2008). The number of children conceived through assisted reproduction has increased markedly in the twenty years since then. Moreover, even in 1998, that 60,000 number is likely an undercount. Many people do not utilize sperm banks or fertility centers, and, indeed, some forms of assisted reproduction can be performed without any medical assistance or intervention at all.
157. Naomi Cahn, What’s Right About Knowing?, 4 J.L. & Biosciences 377, 380–81 (2017) (footnote omitted).
158. Unif. Parentage Act § 905(a) (Unif. Law Comm’n 2017) (providing that, upon request of a child who is 18 years of age or older, a gamete bank or fertility center shall make a good faith effect to provide the child with the identifying information regarding the donor “unless the donor signed and did not withdraw a declaration [of nondisclosure]”). Some scholars have called for an end to anonymous gamete donation. See, e.g., Naomi Cahn & Wendy Kramer, Let’s Get Rid of the Secrecy in Donor-Conceived Families, Slate (Dec. 13, 2013), http://www.slate.com/blogs/xx_factor/2013/12/13/donor_conceived_children_deserve_to_know_the_truth_about_their_origins.html. Other scholars have argued against this position. Gaia Bernstein, Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy, 10 Ind. Health L. Rev. 291, 291–92 (2013) (arguing that “prohibitions on gamete donor anonymity . . . played a role in creating shortages in egg and sperm supplies”).
159. Unif. Parentage Act § 904 (Unif. Law Comm’n 2017) (providing that all gamete banks or fertility clinics licensed in the state must obtain from all donors either an affidavit of identity disclosure or an affidavit of identity nondisclosure).
160. Id. § 905(b).
161. Unif. Parentage Act prefatory note (Unif. Law Comm’n 1973); see also id. § 2 (“The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.”); id. § 2 cmt. (“Sections 1 and 2 [of the UPA (1973) are] the major substantive sections of the Act [and] establish the principle that regardless of the marital status of the parents, all children and all parents have equal rights with respect to each other.”).
162. Joslin, Nurturing Parenthood, supra note 2, at 597.