Nurturing Parenthood Through the UPA (2017)

Abstract

Same-sex couples now have the right to marry throughout the country. Douglas NeJaime’s insightful article carefully explains how LGBT parent-families remain vulnerable despite this important development. NeJaime demonstrates that while the law recognizes nonbiological parentage, it does so in asymmetrical ways that “reflect[] and perpetuate[] inequality based on gender and sexual orientation.” These asymmetries harm the adults and the children in these families, and violate core constitutional mandates.

This Response shows how the recently approved revisions to the Uniform Parentage Act (UPA)—UPA (2017)—address many of the critical gaps in parentage law identified by NeJaime. The UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the longstanding holding-out provision, but revises it so that it applies equally to men and women. The UPA (2017) also adds a new provision on de facto parents, under which someone who has been acting as a parent can legally establish his or her parentage, and expands the classes of people who can establish parentage through the voluntary acknowledgment process. The Act also updates the assisted reproductive technology (ART) provisions to permit individuals of any gender to establish their parentage based on proper consent to the ART procedure.

In addition, the UPA (2017) removes many gender-based distinctions that long have shaped parentage law. In so doing, the UPA (2017) helps states bring their parentage statutes into compliance with the Supreme Court’s decisions in Obergefell v. Hodges, Pavan v. Smith, and Sessions v. Morales-Santana. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect.

By adopting the UPA (2017) and making these changes, states can reform parentage law to more evenhandedly protect all parent-child relationships.

Keywords: parentage, parenthood, equal protection, gender, sexual orientation, discrimination, same-sex marriage, Obergefell, UPA