THE NEW UNIFORM PARENTAGE ACT (2000): PARENTING FOR THE MILLENNIUM
Laura Wish Morgan
I. Introduction: Why a New Uniform Parentage Act
Since 1970, a number of Uniform Acts have been promulgated and adopted that address the subject of parentage. In 1973, the National Conference of Commissioners on Uniform Laws passed the Uniform Parentage Act, which was subsequently adopted by 19 states. The major innovations of UPA (1973) was its rules for the presumption of parentage.
The UPA (1973) suffered from some serious flaws, however. The UPA (1973) did not address the relationship between a divorce and a determination of parentage; it did not address the standing of nonmarital fathers to sue an intact family for filiation; it did not address genetic testing; it did not address surrogacy and gestational agreements.
Because of the inadequacies in the UPA (1973), and because the federal government began in the 1980s to require states to paternity registries, the National Conference of Commissioners on Uniform Laws adopted in 1988 the Uniform Putative and Unknown Fathers Act, and the Uniform Status of Children of Assisted Conception Act. To date, no state has adopted the Uniform Putative and Unknown Fathers Act, and only two states have adopted the Uniform Status of Children of Assisted Conception Act.
To address the inadequacies of the UPA (1973), and to integrate the policies of the Uniform Putative and Unknown Fathers Act, and the Uniform Status of Children of Assisted Conception Act, on August 4, 2000, the National Conference of Commissioners on Uniform Laws approved the new Uniform Parentage Act (2000), and on October 18, 2000, released the official commentary to the new Act.(Full text.) The UPA (2000) integrates much of the UPA (1973), and incorporates provisions covered by the Uniform Putative and Unknown Fathers Act (1988), the Uniform Status of Children of Assisted Conception Act (1988). Consequently the Uniform Putative and Unknown Fathers Act (1988), the Uniform Status of Children of Assisted Conception Act (1988) have been withdrawn as Acts of the Conference, and the UPA (2000) will be the only uniform act dealing with parentage.
The UPA (2000) conforms to the mandate in 42 U.S.C. § 666(a)(5)(A) requiring states to provide for parentage proceedings at any time before a child attains 18 years of age. Further, under the UPA (2000), a parentage proceeding covers any and all disputes in parentage, whether in a paternity action, divorce, probate, or other legal proceeding.
II. The Provisions of UPA (2000)
A. Article 1
Article 1 of the UPA (2000) contains definitions, mostly derived from UPA (1973), the Uniform Putative and Unknown Fathers Act (1988), the Uniform Status of Children of Assisted Conception Act (1988). A few definitions are also borrowed from the Uniform Child Custody Jurisdiction and Enforcement Act (§§ 102(5), 102(15), 102(16)), the Uniform Electronic Transfer Act (§ 102(13)), and the Uniform Interstate Family Support Act (§ 101(20).
Article 1 also provides choice of law rules: the local court always applies local law.
B. Article 2
Article 2, the Parent-Child Relationship, includes all possible bases of establishing the parent-child relationship, including presumptions of paternity, gestational agreements, adoption, birth, acknowledgment, consent to assisted reproduction, and adjudication. The Article also incorporates the policy that there is to be equal treatment of all children, marital and nonmarital.
One big change in Article 2 is the elimination of the two nonmarital presumptions found in the 1973 Act: acknowledgment in writing, and receiving the child into the home and holding the child out as the natural child. Genetic testing, now covered under Article 5, was considered a more economical method of resolving the paternity question.
C. Article 3
Article 3, the Voluntary Acknowledgment of Paternity, now incorporates changes deemed necessary by the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (also known as the Welfare Reform Act). The Welfare Reform Act conditioned federal child support enforcement funds to a requirement that all states enact laws that greatly strengthened the effect of a mans voluntary acknowledgment of paternity. Under the Welfare Reform Act, a valid acknowledgment of paternity is to be considered the equivalent of a judicial determination of paternity. Article 3 was designed to provide a comprehensive version for the states to comply with the new law.
Under Article 3, if a child that is the subject to an acknowledgment has also a presumed father, the husband of the mother, the presumed father should cooperate by filing a denial of paternity in conjunction with the acknowledgment by the other man, or the acknowledgment document is void. If the presumed father is unwilling to cooperate in this manner or cannot be located, a court proceeding is necessary to resolve the issue of parentage.
Acknowledgment can also be rescinded within a short time period (60 days). This too was required by the Welfare Reform Act, which however did not state a particular time frame.
In addition, Article 3 seeks to prevent the circumvention of adoption laws by requiring a sworn assertion of actual parentage of the child through sexual intercourse in support of acknowledgment.
D. Article 4
Article 4, Registry of Paternity, adopts the concept of the paternity registry, which was held constitutional in the case of Lehr v. Robertson, 463 U.S. 248 (1983). Lehr dealt with a New York statute that required fathers of children born out of wedlock to register is they wished to be notified of any termination of parental rights or adoption proceeding. Other legislatures followed suit soon after Lehr was decided; currently 28 states have some form of paternity registry.
Part 2 of Article 4 is concerned with the actual operation of a registry, including furnishing of information, confidentiality, fees for registration, penalties for releasing information, and untimely registration. Part 3 of Article 4 is concerned with the search of a registry, including the issuance of a certificate indicating that a search of the registry has been done.
Article 4 does have significant differences with the New York model in Lehr. The new Act excepts from the registration requirement those fathers who initiate a proceeding for paternity, notwithstanding a failure to register. Also, in order to expedite adoption proceedings, this Article applies only to children under one year of age at the time of the court hearing. This section of the article was designed to allow the nonmarital father the opportunity to accept the responsibilities of parenthood but would not prevent a termination or adoption proceeding, should the father not step forward.
E. Article 5
Article 5 governs Genetic Testing and again reflects changes made necessary by the Welfare Reform Act, which requires genetic testing in certain cases. Both voluntary testing and involuntary testing pursuant to an order of a court or support-enforcement agency are covered.
Article 5 takes into account the fact that testing for paternity may take place without testing the mother and, in some cases, without testing the father, by testing close relatives of the father. A court may not order in utero testing of the mother if a request for genetic testing is made before birth, because of the marked risk to the life and health of the fetus and the mother.
The Article also governs the mechanics of genetic testing, including the form of the report of genetic testing, the rebuttal of that report, confidentiality of the report, and the costs of the genetic testing.
F. Article 6
Article 6, Proceeding to Adjudicate Parentage, governs the nature of the proceeding, the rules of the proceeding, and hearings and adjudication. Admissibility of the results of genetic testing and the admission of paternity are addressed under sections concerning the special rules of the proceeding.
The proceeding is specifically declared to be a civil proceeding, to eliminate any implication that criminal law is involved in any way. Many states, following the English common law, treated the determination of paternity as a criminal proceeding. The ramifications of such criminal proceedings were eliminated by Article 6. In addition, this declaration of a civil proceeding means that the determination of paternity is governed by the ordinary rules of civil procedure, including full discovery, the ability to compel the testimony of all witnesses, and to have the case tried under the preponderance of the evidence standard.
UPA (2000) incorporates changes reflecting the changes that occurred over the years in the probate code, specifically the Uniform Probate Code, both the 1969 draft and the current version from 1990. For example, by the time of the 1990 draft, the imposition of burdens on children born out of wedlock seeking paternal inheritance had been recognized as discriminatory, illogical, and unjust. In addition, the Supreme Court, in Reed v. Campbell, 476 U.S. 852 (1986), had ruled that these burdens were unconstitutional by application of the intermediate scrutiny test formulated under the 14th Amendment. The preponderance of the evidence standard had been adopted by a number of states by 1990, which impelled the Committee revising the Uniform Probate Code to abandon the clear and convincing evidence standard for determining paternal relationships. The UPA (2000) adopts the preponderance of the evidence standard, following the lead of the Uniform Probate Code and the majority of states.
Article 6 eliminates the requirement contained in UPA (1973) that the child is a necessary party to the action. This requirement was held to have outlived its usefulness with widespread use of genetic testing. On the other hand, failure to join a child as a party may result in a later successful collateral attack on the original determination of paternity to be filed by the child (see Lalli v. Lalli, 977 P.2d 776 (Ariz. 1999)). Therefore, a minor child is still a permissible party; however, the Article specifically rejects the view of the 1973 Act that the child necessarily has an independent standing in a parentage proceeding.
Article 6 of the UPA (2000) specifically provides that there is no statute of limitation on a proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated father, even after the child becomes an adult or if an earlier proceeding to adjudicate paternity has been dismissed based on an existing statute of limitation. This provision was prompted, to some extent, by the Welfare Reform Act. The Welfare Reform Act, in 42 U.S.C. 666(a)(5)(A)(i), mandates that a state must have laws that permit the establishment of the paternity of a child at any time before the child attains 18 years of age. The states have promulgated several different age options: twenty states say 18 years of age; six states, age 19; two states, age 20; ten states, age 21 ; two states, age 22; two states, age 23; and nine states have no limitation. The UPA (2000) reflects that view that the right to determine ones parentage is a very important right, which should not be subject to limitation, except when an estate has been closed.
For a child having a presumed father, the UPA (2000) has a two year statute of limitation on a proceeding brought by the presumed father, the mother, or another individual to adjudicate the parentage of the child. The statute begins to run upon birth. A proceeding seeking to disprove a father-child relationship, however, may be brought at any time if the court determines that the presumed father and the mother never cohabited nor engaged in sexual intercourse during the probable time of conception and the presumed father never openly treated the child as his own.
This section attempts to deal with the complex issues of asserting paternity of a child of a married woman and the sanctity of an intact family. The two year limitation reflects the belief that this is an adequate time period to resolve the status of a child within an intact family; any longer period would affect the child and may have serious consequences. If there was no intact family, and the presumed father neither cohabited with the mother nor treated the child as his own, the period is open-ended, again reflecting the idea that the right to determine parentage is near to a fundamental right.
Article 6 also contains a section that seeks to prevent a conflict with a section of the Uniform Interstate Family Support Act (or UIFSA). Section 610 of UPA (2000) provides that a proceeding to adjudicate parentage may be joined with a proceeding of adoption, termination of parental rights, child custody or visitation, child support, divorce, annulment, legal separation or maintenance, probate or administration of an estate, or other appropriate proceeding, except that a respondent may not join such proceeding with a proceeding to adjudicate parentage brought under UIFSA. UIFSA § 314 provides limited immunity from the assertion of personal jurisdiction in other civil proceedings over a litigant engaged in a proceeding to establish, enforce, or modify child support under UIFSA.
Section 637 discusses the binding effect of the determination of parentage upon the relevant parties. In a change from the UPA (1973), the UPA (2000) does not require the child to be made a party to the parentage proceeding, as noted above, and therefore the child is not bound by the determination of parentage, unless the determination was based on acknowledgment of paternity, which is consistent with genetic testing; the determination was based on a finding consistent with the result of genetic testing and that consistency is declared in the determination (or is otherwise shown); or the child was a party or was represented in the proceeding by a guardian ad litem. Note that, as stated above, the child is not a required party, but is a permissible party. For those seeking a binding effect, it may be wise to make the child a party to the action. The UPA (1973) required the child to be made a party to the action and therefore to be bound by the decree. The UPA (1973) did not address whether a divorce decree had a legal impact on paternity. UPA (2000) addresses this question. A majority of jurisdictions hold that the child is not bound by a divorce decree because the child was not a party to the proceeding. A minority hold that the child is bound and was in privity with the actions of the parents in the divorce decree. The UPA (2000) adopts the majority rule.
G. Article 7
Article 7, Child of Assisted Reproduction, reflects a major change and expansion of § 5 of the 1973 Act, which dealt solely with artificial insemination. Technological and medical advances being what they are, Article 7 now includes donor eggs, the implantation of embryos, as well as artificial insemination. Article 7 does not apply to the birth of a child conceived by sexual intercourse or as a result of a gestational agreement, which is the subject of Article 8. A great deal of Article 7 is derived from the Uniform Status of Children of Assisted Conception Act.
Consent by a married woman to assisted reproduction must be in record signed by the woman and her husband. On the other hand, failure of the husband to sign this consent will not preclude a finding that the husband is the father of the child born to his wife if the wife and the husband openly treat the child as their own. This latter is to comply and conform with the requirements of the Uniform Probate Code § 2-114(c).
Section 705 of Article 7 places restrictions on a husband's dispute of paternity in a case of assisted reproduction. These restrictions reflect and restate the views of other uniform laws: the Uniform Status of Children of Assisted Conception Act § 3 and the Uniform Probate Code § 2-114(c). Even if a marriage is declared invalid, the husband in an invalid marriage will not escape responsibility for paternity of the child of assisted reproduction except as provided in the exceptions applicable to a truly married man, as found in the Uniform Status of Children of Assisted Conception Act § 3.
Article 7, in an entirely new section, holds that [i]f a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were occur after a divorce, the former spouse would be a parent of the child. This consent can be withdrawn at any time before placement of the eggs, sperm, or embryos. This section derives from the concept in the Uniform Status of Children of Assisted Conception that if there is no liability for a child conceived after death, there should be no liability for a child conceived or implanted after divorce. The comment to this section notes that the UPA does not attempt to resolve the issues of control as to any frozen embryos.
H. Article 8
Article 8, the Gestational Agreement, treads upon the complex and controversial ground of the so-called surrogate mother. The last time the gestational agreement was addressed by the National Conference of Commissioners on Uniform State Laws was in 1988, with the adoption of the Uniform Status of Children of Assisted Conception Act. That act offered two alternatives on gestational agreements: to either regulate them through a judicial review process or to void them. A measure of the controversy attendant with these agreements may be taken by the number of states that have adopted the Uniform Status of Children of Assisted Conception Act: only two. And of these two, they are split 50-50 as to how to handle gestational agreements: Virginia regulates these agreements; North Dakota voids them.
Eleven states allow gestational agreements by statutes or case law. Six states void such agreements by statute. Eight states statutorily ban compensation to the gestational mother, and two states have judicially refused to recognize such agreements.
Because of the controversy, the Drafting Committee chose to make the whole of Article 8 optional, without a recommendation either for or against its adoption. The rest of the UPA (2000) was considered too valuable and important to allow one article to jeopardize its passage. As the Committee notes in its official comment, If the inclusion of Article 8 is so controversial in a State considering adoption of this Act to cause a risk of failure, the article may be omitted entirely.
A gestational agreement, in the view of the Committee, is a significant legal act that should be reviewed by a court, just as an adoption agreement is. The UPA (2000) follows the 1988 act, with two significant departures. First, a nonvalidated gestational agreement is unenforceable, which would provide a strong incentive for the participants to seek judicial scrutiny. Second, individuals who enter into nonvalidated gestational agreements and later refuse to adopt the resulting child may be liable for support of the child.
Article 8 recognizes that medical science in this area will almost always outpace the law in its present state. In fact, medical science races ahead without heed to the views of average people. Artificial insemination, traditional surrogacy, and gestational carriers are part of the present, with cloning and gene splicing, the so-called designer babies or designer genes, in our imminent future.
Article 8 requires that the intended parents by married, and both spouses must be parties to the gestational agreement. The prospective gestational mother, her husband if she is married, and the donors must relinquish all rights and duties as the parents of a child conceived through assisted reproduction. One can see that Article 8 seeks to minimize possible areas of controversy, as well as areas of litigation.
A hearing to validate a gestational agreement shall be held by a court, which will also declare that the intended parents will be the parents of the child born during the terms of the agreement. The proceedings, records, and identities of the individual parties to a gestational agreement will be subject to the same standards of confidentiality applicable to adoptions.
A gestational agreement can be terminated by the prospective gestational mother, her husband, or either of the intended parents by giving written notice. This must be done before the prospective gestational mother becomes pregnant by means of assisted reproduction. The court, for good cause shown, may also terminate the gestational agreement.
Once a child is born to the gestational mother, the intended parents should file notice with the court that the child has been born within 300 days after assisted reproduction. The court will thereupon issue an order confirming that the intended parents are the parents of the child; ordering the child surrendered, if necessary, to the intended parents; and directing the production of a birth certificate naming the intended parents as the parents. If the child born to the gestational mother is alleged not to be the result of assisted reproduction, it is within the power of the court to order genetic testing to determine the parentage of the child.
If, after the issuance of an order under Article 8, the gestational mother marries, the marriage does not affect the validity of a gestational agreement, the new husbands consent to the agreement is not required, and the new husband is not a presumed father of the child.
If a gestational agreement is not judicially validated, it is not enforceable. If a child is born as a result of nonvalidated gestational agreement, that child's parents will be determined by the provisions of Article 2 of UPA (2000), Parent-Child Relationship. Note, however, that those parties to a nonvalidated gestational agreement as intended parents may be held liable for support of the resulting child, even if the agreement is unenforceable.
I. Article 9
Article 9 contains miscellaneous provisions of the Act, including uniformity of application and construction, severability, and the time the Act takes effect.
The new Uniform Parentage Act (2000) truly is an act for the new millennium. By directly addressing the new reproductive technologies and the problems caused by late discovery of paternity or of non-paternity, the new Act comes a long way from the hide in the sand attitude of the previous act.
Since time will undoubtedly bring us modes of parenting we cannot even now imagine, such as cloning, the new UPA may prove obsolete sooner than we imagine. Nonetheless, for now, it is useful and should be adopted by all states.