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Abstract:
In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that sought to treat all children equally by removing the legal distinction between marital and nonmarital children. The 1973 UPA demonstrated the progressive thinking of the Conference and led to similar changes in the parentage laws of every state in the country. In 2000, the Conference promulgated a new Uniform Parentage Act that includes broad provisions for determining parentage of children conceived through assisted reproductive technologies (ART). Unlike the 1973 UPA, however, this Act does not attempt to treat all children equally. Instead, the 2000 UPA leaves thousands of children conceived via ART and born to same-sex couples in the emotionally and financially vulnerable position of having only one legal parent.

This article analyzes the scientific advancements, social movements, and Supreme Court precedent that convinced the Conference to recognize both parents of nonmarital children in the 1973 UPA and argues that similar scientific advancements, social movements, and Supreme Court precedent existed in support of recognizing both parents of children conceived through ART and born to same-sex couples in the 2000 UPA. When faced with these arguments in 1973, the Conference made a bold - and ultimately overwhelmingly successful - choice. In 2000, however, the Conference made a short-sighted decision and proffered a model act that fails to address the needs of courts and states facing parentage determinations for these children throughout the country.

Uniform Parentage Act, Parentage, Same-Sex Couples, Assisted Reproductive Technology

Abstract:
Prebirth parentage orders are often sought by parties to surrogacy agreements to formalize the intent of the parties to the agreement before the child is born. Such orders declare the intended parents to be the legal parents of the child. This article discusses the benefits of such orders, as well as the difficulties in obtaining them. The availability and efficacy of prebirth parentage orders depends on many factors including the type of surrogacy arrangement, the state law that governs the proceeding, and whether the parties are in unanimous agreement. This article analyzes the various factors which impact whether obtaining a prebirth parentage order is possible and whether such an order is enforceable in several representative jurisdictions in the United States.

Surrogacy, Assisted Reproductive Technologies, Family Law

Abstract:
From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to legal parents at birth. This right derives from the Substantive Due Process privacy right to form intimate, familial relationships, as well as the right to intimate association and ensures that a child may develop the parent-child relationships necessary to preserve her liberty, protect her rights, and define her identity.

To guarantee children’s fundamental right to legal parents at birth, states must reform their current parentage statutes. This article argues that states must first replace all presumptions in parentage statutes with clear determinations of legal parentage at birth. Next, states must grant legal parentage of children conceived through sexual reproduction to the child’s genetic parents. For children conceived through assisted reproductive technology, states must grant legal parentage to the intended parents. By adopting statutes that assign children parents from these respective groups, states ensure that the persons who are most likely to act in the child’s best interest become the child’s legal parents. In so doing, the state fulfills its parens patriae obligation to guarantee every child’s fundamental right to legal parents at birth.

Assisted reproductive technology, constitutional law, fundamental rights, substantive due process, right to intimate association, paternity, maternity, parentage, marital presumption, children’s rights