Concerns About the NCCUSL Revised
Uniform Parentage Act (UPA) of 20001
Joan Heifetz Hollinger
The primary purpose of the Uniform Parentage Act (UPA), approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in August 2000 is to ensure equal treatment of all children regardless of the marital status of their parents.2
While the new UPA aims to advance a number of significant goals to ensure child support and other protections for all children, it falls short of its purported primary purpose by unreasonably limiting parentage to married couples and biogenetic parents. By failing to address many of the different kinds of families in which children are now being raised, including an increasing number of the families created through assisted reproduction, the new UPA takes a step backward, to the detriment of the children who are its intended beneficiaries.
1. The new UPA is inconsistent with the ALI Principles of the Law of Family Dissolution, which expressly extend parentage by estoppel to unmarried couples. Under the ALI Principles, some men and women who are not a child’s biological parent may become parents by estoppel of their unmarried heterosexual or same-sex partner’s child. [see excerpts from ALI in Appendix].
2. It is also inconsistent with American Bar Association (ABA) policies affirming the principle of equal protection for all children without regard to their parents’ marital status or sexual orientation.
3. In contrast to the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA ignores the needs of many children born outside of marriage, including the need for legal recognition of their existing economic and emotional relationships to the individuals who are actually functioning as their parents. This represents a step backward from the 1973 version of the UPA. In particular:
a. Section 204 eliminates the presumption of paternity for an unmarried man who takes a child into his home and holds the child out as his own. See Comment to § 204.
b. Section 608 limits the application of estoppel principles for assigning parental responsibility, including child support obligations, to married couples. See Comment to § 608:
c. By providing no way for children born to same-sex couples to have two legal parents [except through adoption, which is permitted in some states and under the Uniform Adoption Act (1994) Section 4-102, but is not an available option in many states], the new UPA raises serious concerns about the best interests and equal protection of these children.
4. The new UPA invades the privacy of individuals and families by requiring that, to make a voluntary acknowledgment of paternity, a man must swear under penalty of perjury that the child was conceived as a result of his sexual intercourse with the child’s mother. See §§ 301, 302. By contrast, the federal statute, 42 U.S.C. § 666(a)(5)(C), that conditions federal funding of state child support enforcement programs on the creation by the states of a “simple civil process” for voluntary acknowledgment of parentage does not require an assertion of genetic parentage.
5. With respect to assisted reproduction, Article 7 precludes an unmarried partner of a birth mother from establishing parentage based on his or her intentions to co-parent with the mother, thereby leaving a child born to an unmarried couple through assisted reproduction with only one legal parent -- and only one adult responsible for child support. See § 703.
6. Article 8 of the new UPA requires the “intended parents” in a gestational surrogacy arrangement to be married, to prove their infertility and inability to bear a child, and to undergo a “home study” to confirm their parental fitness. See §§ 801(b), 803(b). These prerequisites invade the privacy of the intended parents, are not related to any credible test of parental fitness, unreasonably exclude unmarried couples from participating in a gestational surrogacy arrangement, and are inconsistent with contemporary standards for evaluating the suitability of prospective adoptive parents. See, e.g., NCCUSL’s Uniform Adoption Act, Art. 2, Part 2 (1994); CWLA Revised Adoption Standards (2000).
7. The new UPA fails to safeguard the health and general well-being of children conceived through assisted reproduction by leaving to “other law” any requirements for the collection, preservation, and disclosure of the health medical histories and biogenetic profiles of egg, sperm, or embryo donors. Nor does the UPA provide for the consensual disclosure of donors’ identities to the children or their legal parents.
8. The genetic testing provisions of the UPA raise serious privacy concerns relating to the scope of judicial orders for genetic testing, the confidentiality of test results, the future use of specimens, and the unauthorized release of genetic information. See §§ 508(a), 511.
9. The new UPA’s approach to establishing parentage is inconsistent with the inclusionary principles and specific provisions of NCCUSL Uniform Adoption Act (1994). See, e.g., UAA § 1-102: “Subject to this [Act], any individual may adopt or be adopted by another individual for the purpose of creating the relationship of parent and child between them.” See also Comment: “No one is categorically excluded by the Act from being considered as a prospective adoptee or as a prospective adoptive parent. Determinations concerning the availability and suitability of individuals to become each other's adoptive parent or child are to be made on the basis of the particular needs and characteristics of each individual.”
EXCERPTS from ALI Principles Governing the Allocation of Custodial and Decisionmaking Responsibility for Children (last approved version, Summer 2000)
§ 2.03 Definitions
For purposes of this Chapter, the following definitions apply.
a. Legal parent. This Chapter uses the term “legal parent” to refer to any person recognized as a parent under other state law. Persons defined as parents under state law ordinarily include biological parents, whether or not they are or ever have been married to each other, and adoptive parents. In some states, an individual may be a parent also by virtue of an unrebutted legal presumption, such as the presumption that a husband is the father of his wife's child. An individual is not a parent under § 2.03(1)(a) if, under applicable state law, the person’s status as parent has been terminated.
1. Ruth and John lived together for three years, during which time Ruth legally adopted Fred, John's nine-year-old son from a former marriage.
The law of every state would consider John, as Fred's biological father, and Ruth, as Fred's adoptive parent, to be Fred’s legal parents. Thus, both are legal parents under this Chapter.
2. Caroline and Ed, the biological parents of two-year-old Corinne, never married and never lived together. Corinne lives with and is being raised by Caroline. Ed has never seen Corinne, nor has he ever provided her economic support.
To the extent that the state recognizes Ed as Corinne’s legal father, he is her legal parent under this Chapter, unless his rights have been terminated under state law.
b. Parent by estoppel. An individual who is not a legal parent may be a parent by estoppel under Paragraph(1)(b). A parent by estoppel is an individual who, even though not a legal parent, has acted as a parent under certain specified circumstances which serve to estop the legal parent from denying the person’s status as a parent. A parent by estoppel is afforded all of the privileges of a legal parent under this Chapter, including standing to bring an action and to have notice of and participate in an action brought by another under § 2.04, the benefit of the presumptive allocation of custodial time provided for in § 2.09(1)(a), the advantage of the presumption in favor of a joint allocation of decisionmaking responsibility afforded by § 2.10(2), the right of access to school and health records specified in § 2.10(4), and priority over a de facto parent in the allocation of primary custodial responsibility under § 2.21.
i. Person who is liable for child support. Three circumstances are specified in Paragraph (1)(b) as creating parent by estoppel status. First, an individual is a parent by estoppel when he or she is liable for child support under Chapter 3. See § 2.03(1)(b)(i). Most persons upon whom a child support obligation is imposed under Chapter 3 are legal parents and thus covered by Paragraph (1)(a). Section 3.02A permits the imposition of a child support obligation upon other persons, however, when their prior conduct is determined to estop them from denying the obligation. For example, a stepfather who undertook to replace a child’s biological father by supporting the child and otherwise assuming responsibility for the child may be estopped, under some circumstances, from denying a child support obligation when the marriage underlying the stepparent relationship ends. See § 3.02A, Illustration 2. If such an individual is held liable for child support under § 3.02A, § 2.03(1)(b)(i) provides that the person is also a parent by estoppel for purposes of Chapter 2 claims. The determination of child support liability must precede the determination of parenthood under this section, but whether a child support obligation is ultimately imposed, and in what amount, would ordinarily await determination of the custodial arrangements. In any event, an individual who might have been liable for child support under § 3.02A, but against whom an obligation is not sought, is not a parent by estoppel under Paragraph (1)(b)(i).
iii. Person who is a co-parent, by agreement with the legal parent. Finally, an individual may be a parent by estoppel on the basis of having lived with the child for two years or more and having held himself or herself out as the child’s parent and accepted the full responsibilities thereof, with the agreement or acquiescence of a legal parent. § 2.03(1)(b)(iii). This category substitutes the requirement of an agreement or acquiescence for the good faith belief requirement of Paragraph (1)(b)(ii). Because of the general policy in favor of having some potential for court supervision of agreements by parents affecting such basic questions of parental identification and responsibility, the section’s requirements are met only when the court finds that recognition of the person as a parent by estoppel is in the child’s best interests.
An individual may become a parent by estoppel under Paragraph (1)(b)(iii) under a number of different circumstances. For example, a husband who marries a woman who is pregnant with another man’s child, agrees with the mother to act as the child’s father and, for the requisite period, lives with the child and accepts responsibilities as if he were a parent, is a parent by estoppel under Paragraph (1)(b)(iii). Another example covered by Paragraph (1)(b)(iii) is the situation of two cohabiting adults who undertake to raise a child together, with each adult having all of the rights and responsibilities of parenthood. Although adoption is the clearer and thus preferred legal avenue for recognition of such parent-child relationships, not all jurisdictions permit adoption in this situation, especially if both adults are of the same sex. These Principles do not address the subject of adoption, but they fill in the gap left in some jurisdictions by recognizing a parent by estoppel in appropriate circumstances.
A formal, written agreement is not required to create a parent by estoppel status under Paragraph (1)(b)(iii), but whether or not certain formalities were respected might affect the factfinder’s determination of whether an agreement, in fact, existed. The significance of a formal, written agreement, or the absence thereof, would depend upon the circumstances and the expectations that those circumstances produce. For example, it would not necessarily be expected that a man who marries a woman when she is pregnant with another man’s child and agrees to raise the child as his own, when there is no other father on the scene, would execute a written agreement accordingly. On the other hand, in the less traditional context of two women who undertake to have a child together and contemplate that each will have the full rights and responsibilities as parents, a formal agreement memorializing their intentions and reducing the ambiguity thereof would be more expected. The important thing is whether, given the circumstances, the actions of both the person seeking status as parent and the legal parent who may be estopped from denying that status are clear and unambiguous enough to indicate that a parent status was intended.
An individual may not be a parent by estoppel under this Paragraph if the agreement provides for less than a full assumption of the responsibilities as a parent. An agreement for visitation only, or an agreement that specifically excludes obligations for financial support or for caretaking responsibility, does not serve as the basis for recognition as a parent by estoppel, although in appropriate circumstances, the agreement may receive some recognition nonetheless. See §§ 2.09(1)(e) & Illustration 33 to § 2.09. These Principles, however, do not recognize the creation of parent by estoppel status through agreement.
In deciding whether recognition as a parent by estoppel under this section is in the child’s best interests, one of the factors a court should consider is whether the child already has two legal parents. This factor is not dispositive, particularly if one of the child’s legal parents has formed no significant parental relationship with the child. If two legal parents exist, however, the case for recognition is weaker. The extent of the involvement of the person in the child’s life and the strength of the emotional bond between them are other factors the court should consider.
The parent by estoppel category is not intended to resolve all of the emerging issues having to do with non-traditional reproductive technologies. For the most part, issues of parenthood arising from non-traditional reproduction are beyond the scope of this project and must be resolved under other state law.
1. This Outline of Concerns about the UPA (2000) contains a number of my own concerns as well as those raised at the mid-year meeting of the American Bar Association, February 2001. Pending its receipt and consideration of more detailed comments later this spring from the ABA’s Sections on Individual Rights & Responsibilities, Family Law, and Unmet Needs of Children, NCCUSL withdrew its request for approval of the UPA from the ABA House of Delegates.
2. UPA § 202: “A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other”; UPA § 106: “Provisions of this [Act] relating to determination of paternity apply to determinations of maternity.” See also Prefatory Note.