Establishing Parental Rights
In 2000, the Uniform Parentage Act (“UPA”) attempted to simplify the determination of parentage for children born through Assisted Reproductive Technologies (ART). In this regard, the UPA promulgated rules for the establishment of a parent-child relationship, especially for non-marital children. The UPA replaces the traditional concept of “legitimate children” and “illegitimate children” with the concept of “legal parentage” and applies to all children equally irrespective of the marital status of their biological or adoptive parents.
Articles 7 and 8 of the UPA deal with determining parentage of children born through ART. Article 7 discusses the rules relating to children born to an unmarried or married woman as a result of ART (except gestational surrogacy). Article 8 deals with assigning parentage to a married or unmarried couple who wish or intend to parent a child born to a woman pursuant to an approved gestational agreement.
According to the UPA, all donors who are not intend to be a parent are precluded from claiming parental rights. Section 102 (8) of the UPA defines donor as an individual who produces eggs or sperm, either for consideration or without consideration, for the purpose of assisted reproduction. However, a donor does not include:
- a husband, who donates sperm, or a wife who provides eggs to be used for assisted reproduction by the wife;
- women who give birth to children by assisted reproduction method (except gestational agreements); or
- a parent under Article 7 or an intended rearing parent under Article 8.
The UPA allows the recipients of donated sperm, ova, or embryos to establish parental status, regardless of their status, i.e. if single women, married, or unmarried couples.
The intended parents are those parents who wish to or intend to parent the child born as a result of assisted reproduction method and who are unable to procreate through traditional means. To establish parental rights the intended parents must file a petition with a supporting affidavit of a physician and a copy of the surrogacy agreement. The surrogate and her husband, if she is married, must join in the petition. If the agreement is not terminated by the surrogate, the Court will issue an order approving and authorizing the surrogacy.
Certain states allow the surrogate to cancel her consent at any time before the adoption of the child by the intended rearing parents. Some states allow surrogates to invalidate pre-birth surrenders while other allow the surrogate to nullify the surrender after the child is born. If a surrogate changes her heart and seeks to maintain the custody of the child, the situation becomes complex.
However, if the court vacates the order upon receipt of notice of termination by the surrogate, the surrogate is the mother of a resulting child and if she is married, her husband becomes the father provided he is a party to the agreement. If the surrogate is unmarried or the surrogate’s husband is a non-party, then the UPA governs the paternity of the child.
Upon the child’s birth, the intended parents must file a notice with the court reflecting that the child has been born to the surrogate within 300 days after assisted conception. Subsequent to the filing of the notice, the court will issue a declaratory order recognizing the intended parents as the legal parents of the child. The declaratory order directs the hospital to prepare a birth certificate recognizing the intended rearing parents as the legal parents. Through the declaratory order the court will also order the Department of Vital Statistics to issue a birth certificate naming the intended parents as parents. The court will then order the original birth certificate sealed in the Department of Vital Statistics records. However, such a birth certificate can later be replaced by a birth certificate naming other individuals as parents of the child if an action to dispute the parentage of the intended rearing parents becomes successful.