Uniform parentage act (2000) with prefatory note and comments (and with unofficial annotations

Family Law Quarterly

Volumn 35, Issue 1, 2001, Pages 86-203

  Sampson, John J ^a  

^a NONE

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EID: 77449121202     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (275)

1. Nothing a lawyer, or a law professor, can do will teach cooperation and humility so much as drafting statutes, particularly a Uniform Act. The process is long and involved, taking at least two years and usually three years or more to complete. In that time at least four "official" drafts are produced (this was more like twelve), and the act is reviewed with a vengeance in two (or three) public readings with approximately 300 eagle-eyed commissioners examining the work of the reporter and the Drafting Committee.
2. As the list of personnel involved in the drafting process indicates, eleven commissioners participated in the Drafting Committee's work; each providing contributions in varying degree to the final text. In addition, there was an advisor from the ABA, and ten observers, all of whom made great contributions to the process. The advisor and observers brought specific expertise to assist the Drafting Committee in its understanding of the issues. The areas of expertise included: adoption; assisted reproduction technologies (ARTS); child support enforcement and establishment of paternity, especially by the IV-D programs; federal legislation and its interaction with state law; genetic testing; private practice of family law as it relates to paternity cases; probate law; and, public record keeping of vital statistics.
3. The contributions of the Style Committee of NCCUSL, especially by our liaison, Frank W. Daykin of Nevada, cannot be overestimated. In my first encounter with the Style Committee in the early 1990s, I was not an unalloyed fan of that entity. Thanks to both the mellowing of age and a crash course in diplomacy and accommodation, over the years I have learned great respect, if not always agreement, for most of the Style Committee's views. Unquestionably, the text of the statute was greatly enhanced by the efforts of Frank Daykin and the other members of that committee.
4. Finally, although absolute precision is sought in drafting a uniform act, it is seldom achieved. An example of the degree of precision sometimes attempted was provided at the NCCUSL 2000 Annual Conference when § 706 (b) was read as follows: "The consent of the former spouse to assisted reproduction may be revoked by that individual in a record at any time before placement of eggs, sperm, or embryos." A commissioner rose to ask "The use of the term 'placement,' just in common usage, seems to beg the question. Placement where? Is this the best term that the committee was able to use?"
5. As the reporter, a really terrific response came to mind. Fortunately, Drafting Committee Chairman Tindall responded "We invite a suggestion. That's the term we've used throughout the drafting process and that seems to be the word of art in the industry." Equally fortunate, the language was left as-is while I kept silent. But, in the hypertechnical world of statutory drafting, there is a point underlying the inadvertent humor in the question. To have been perfectly precise, we certainly could have drafted directions to the medical profession of how to proceed in placing embryos. Obviously, here the conclusion reached was that perfectly precise drafting of a statute would have constituted overdrafting. But generally the rule is to be as precise as possible, which explains why the statutory text often seems redundant and somewhat stilted. After all, in litigation all of the lawyers involved are searching for a construction of the controlling statute favorable to their clients. As everyone reading this knows, this can lead to some pretty bizarre twists of the English language.
6. The drafting of the prefatory note and comments, often called the "official comments" is a collective effort, much as that described in the preceding footnote. But, there are significant differences. First and foremost, the Style Committee takes no part regarding the prefatory note and comments. These are left to the Drafting Committee, primarily the chairman and reporter. Participation in this process is much more a voluntary act on the part of the participant, and not nearly as universal as is the participation in drafting the statutory text.
7. In drafting the prefatory note and comments I am particularly indebted to the most energetic and dedicated chairman a reporter could ever have, Harry L. Tindall of Texas, to Jack Davies of Minnesota, editor extraordinaire, and to Art Peterson of Alaska, who kept me straight on many issues of grammar and punctuation. A wide variety of the rest of the commissioners on the Drafting Committee, plus the dedicated observers contributed many valuable suggestions.
8. In 1993, I agreed to provide unofficial annotations to the original Uniform Interstate Family Support Act (UIFSA) for publication in this journal. I am proud to say I guess I started something because the two articles in this publication that follow the "uniform act with annotations format" are the fifth and sixth of this type. It is true that the comments provide great insight to the intent of the Drafting Committee. Relatively often courts actually cite the comments as authoritative-that's much less the case for the unofficial annotations. The comments, together with the annotations, provide a brief version of a legislative history which ordinarily is not found in state legislation. I do decry the fact that in enacting uniform acts legislators, and publishers do not commonly make available to the bench and bar the comments of the Drafting Committee for use by trial courts in construing the acts. The complete list of prior annotated versions of uniform acts is as follows (other than the two in this publication) : Robert G. Spector, Uniform Child-Custody Jurisdiction and Enforcement Act (with Prefatory Note and Comment), 32 Fam. L. Q. 301 (1998);
9. John J. Sampson, Uniform Interstate Family Support Act (1996), Statutory Text, Prefatory Note, and Commissioners Comments (with More Unofficial Annotations), 32 Fam. L. Q. 385 (1998);
10. Joan Heifetz Hollinger, The Uniform Adoption Act: Reporter's Ruminations, 30 Fam. L. Q. 345 (1996);
11. John J. Sampson, Uniform Interstate Family Support Act with Unofficial Annotations, 27 Fam. L. Q. 91 (1993). In writing these annotations I had inestimable help from: Debbie Steed, my administrative assistant, and Harry L. Tindall, and to my colleague at the Children's Rights Clinic at the University of Texas Law School, Cynthia Bryant. I am also much indebted to Paula Roberts for writing her article for this publication. Her comprehensive coverage of parentage caselaw allows me to concentrate on the "legislative history" of the Act without fear that the caselaw aspect of the big picture is short-changed.
12. The Constitution of the National Conference of Commissioners on Uniform State Laws [hereinafter NCCUSL] provides: "Section 1.2. Purpose. It is the purpose of the Conference to promote uniformity in the law among the several states on subjects as to which uniformity is desirable and practicable." 2000-2001 NCCUSL Reference Book, at 90. As a practical matter, to conserve limited resources NCCUSL seeks to draft legislation that has a reasonable chance of passage in several states, and does not engage its time or efforts in theoretical or abstract discussions of legal principles.
13. Beginning in 1968, a series of decisions rendered by the U. S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution mandates equal legal treatment of legitimate and "illegitimate" children over a broad range of substantive areas: Quotations from two decisions of that era still illustrate the Supreme Court's views on this subject:
14. The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual-as well as an unjust-way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where-as in this case-the classification is justified by no legitimate state interest, compelling or otherwise.
15. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175-76 (1972). We have held that under the Equal Protection Clause of the Fourteenth Amendment a State may not create a right of action in favor of children for the wrongful death of a parent and exclude illegitimate children from the benefit of such a right. Similarly, we have held that illegitimate children may not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their parent. Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother. For a State to do so is "illogical and unjust." We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.
16. Gomez v. Perez, 409 U. S. 535, 537-38 (1973). Accordingly, in providing substantive legal equality for all children regardless of the marital status of their parents, UPA (1973) fulfilled the mandate of the Constitution. Because the Supreme Court cases equalized the substantive legal positions of children with and without a presumed father, the substance of UPA (1973) was largely concerned with the sine qua non of equal legal rights-the identification of the man against whom these rights may be asserted.
17. Va. Code Ann. §§ 20-156 to 20-165 (Alternative A, recognizing valid "surrogacy agreements");
18. N. D. Cent. Code §§ 14-18-01 to 14-18-07 (choosing Alternative B, which declares such an agreement to be "void')
19. UPA (2000) was on the consent docket for approval by the ABA House of Delegates at its meeting in San Diego for Monday, February 19, 2001. Last minute concerns expressed by the Individual Rights and Responsibilities Section in a letter from its chair, Michael S. Greco, dated Friday, February 16, resulted in withdrawal of the UPA from the consent docket, copy on file with author [hereinafter ABA-IR&R Letter].
20. The "concerns" expressed will be discussed throughout these annotations in conjunction with the specific sections of the Act involved. One theme of the letter, however, deserved a general comment. Repeatedly Mr. Greco's letter refers to ALI Principles, meaning the ALI Principles on the Law of Family Dissolution, Tentative Draft No. 4 (April 10, 2000). Please note these "principles" in no way are intended to constitute a restatement of law. Indeed, the use of the term "principles" has nothing to do with the first definition of that term in my Webster's, New Collegiate Dictionary, to wit: "a comprehensive and fundamental law, doctrine, or assumption. "
21. In fact, many of the principles espoused are not the law anywhere in the United States. Nor are many of the principles likely to be accepted by many (or perhaps any) state legislatures in the near-term foreseeable future. For example, crucial to the concerns expressed in the ABA-IR&R letter, is the ALI principle that certain same-sex and opposite-sex unmarried couples should have rights identical to married couples with regard to property division, alimony, and children raised in the household. Such
22. In fact, the Comment should say "parentage testing" because the definition itself refers to testing of both "a man as the father or a woman as the mother of a child." The statutory text reflects a floor amendment to the definition of "genetic testing" which, as originally presented, referred only to testing the alleged father. The following discussion took place during the final reading of the Act as presented for approval to the Annual Meeting of the NCCUSL in St. Augustine, Florida, on July 31, 2000.
23. COMMISSIONER KIMBERLY A. TAYLOR (Virginia) :... Baby is left in a dumpster. You have evidence to say who the mother may be. But in order to terminate her parental rights - part of the problem with babies left like that is there is tremendous uncertainty with respect to termination of parental rights in order to facilitate adoption. This whole section is targeted at men. Could there not be situations where one would, in fact, for termination of parental rights and other reasons like that, want to know who the mother is? Therefore, shouldn't this section be broadened, although it would almost always have to do with men?
24. COMMISSIONER TINDALL (Texas) [Chairman of the UPA (2000) Drafting Committee]:... [T]his act may be used to adjudicate maternity.
25. COMMISSIONER TAYLOR: Shouldn't the genetic testing part also require a mother, require a putative mother to submit to genetic testing?
26. COMMISSIONER TINDALL: Yes. [We will add your suggestion.] Occasionally it comes up at border crossings that women will present themselves and say that the child is theirs and they order maternity testing to determine if the infant as represented by the mother is her child. It does come up with some regularity. Mix up in the hospital.
27. MR. JOHN J. SAMPSON (Reporter) : [We have tried to] maintain some control over the drafting process. Even though it is potentially possible to have maternity suits, they are so rare-[If] you add this possibility throughout the act, you make the act much more awkward to read.
28. Transcript of NCCUSL Annual Meeting, July 31, 2000, at 53-54 [hereafter 2000 Annual Meeting Transcript 7-31-00], on file with the author electronically.
29. See Appendix to Article 8, Table of Gestational Agreement Laws.
30. As should always be the understanding, but often is not, the Act is not intended to regulate by silence, or preempt by implication. A good example of this principle is the issue of estoppel, which may prevent a man or a mother from challenging a man's apparent paternity under certain circumstances. Section 204, "Presumption of Paternity in Context of Marriage," eliminates the presumptions of paternity not related to marriage formerly found in UPA (1973). Section 608, "Authority To Deny Motion for Genetic Testing," establishes a statutory period for estoppel of a dispute over presumed parentage under specifically described fact circumstances, which can have an effect on such challenges otherwise allowed under § 607, "Limitation: Child Having Presumed Father." This combination of statutory provisions should not be construed as affecting "other law of this State," such as application of the court-created doctrine of estoppel in fact situations which the court deems that doctrine appropriate to apply.
31. See § 608 and accompanying comment and annotations.
32. Although the focus of this Act is entirely on parentage issues, the establishment, enforcement, and modification of child support is inextricably intertwined with its provisions. From the very beginning of the federal IV-D program, establishment of paternity has been a crucial element of that effort. Indeed, state support enforcement agencies have a virtual monopoly on the establishment of paternity, even if that position is by default. In this regard the Drafting Committee had the expert advice from an experienced cadre of observers, to wit: Susan Notar, Federal Office of Child Support Enforcement; Wally Murray, National District Attorneys' Assoc; Susan F. Paikin, Eastern Regional Interstate Child Support Assoc; Paula Roberts, Center for Law & Social Policy; and Marilyn Ray Smith, National Child Support Enforcement Assoc. All but Ms. Notar are veterans of the drafting of the Uniform Interstate Family Support Act (UIFSA).
33. As is often the case in Family Law, the policy of the forum trumps a variety of other considerations, as the following colloquy demonstrates:
34. COMMISSIONER EDWIN E. SMITH (Massachusetts) : This is probably a very naive question. The way I read the section, the forum is told not to apply its own choice of law rules, it's to go right to the substance of the act. Is this a field where choice of law type principles are widely disregarded anyway, that once you get into the court this is where the core substance of the matter lies, or does this lead to the possibility of forum shopping to get into a particular jurisdiction where this substantive law would apply without regard to choice of law rules?
35. COMMISSIONER TINDALL: We have found no state that does choice of law. In other words, apply the law of England because the child was born in England or the parents lived in Canada for 20 years and they are now in Massachusetts for the last year. This says that all determinations will be made by the law of the forum.
36. COMMISSIONER SMITH: The only question I raise is whether that leads to the possibility of forum shopping, that the first one who gets into the right forum knows that that forum will apply its own substantive law without regard to choice of law rules. This may be typical for this area.
37. COMMISSIONER TINDALL: This is a very typical provision. We have had 19 states, and they have always applied the law of their own state.
38. COMMISSIONER JACK DA VIES (Minnesota) : I would add that the Child Custody Jurisdiction Act functions to usually throw the decision into a state that appropriately applies its own laws.
39. Annual Meeting Transcript 7-31-00 at 6-7, supra note 8.
40. The ABA-IR&R Letter, supra note 7, expressed the following concern:
41. [N]ew barriers to establishing parentage hurt the children, who are at risk of losing enforceable child support payments, social security, veterans, and worker's compensation benefits, and the right to maintain an existing parent-child relationship.
42. Reply: Nothing in UPA (2000) creates 'barriers' to establishment of the parent-child relationship. Once parentage is established, UPA (2000) does not deal with the issues of custody, or child support and other entitlements. These matters are left to other law. This policy is designed to insure that conflicting substantive and procedural provisions will not be enacted by a state legislature.
43. The ABA-IR&R Letter, supra note 7, expressed the following concern:
44. The primary purpose of the UPA is to ensure equal treatment of all children regardless of the marital status of their parents. See § 202 and Prefatory Note. While the new UPA aims to advance a number of significant goals, it seriously falls short of its purported primary purpose in several important ways. Because of the shortfalls, rather than advancing the state of the law, the new UPA takes a step backward, to the detriment of the UPA's intended beneficiaries, the children.
45. Reply: This concern is so vague and sweeping in its assertions, no specific reply is possible other than a request "to read the Act."
46. The ABA-IR&R Letter, supra note 7, expressed the following concern:
47. The new UPA is inconsistent with existing ABA policies affirming the principle of equal protection for all children without regard to their parents' marital status.
48. Reply: Section 202 continues unchanged the position pioneered by UPA (1973), which incidentally was an extraordinarily bold, even courageous act for its day. UPA (1973) stated: "A child bom 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."
49. I don't know where the IR&R was in 1973, but the NCCUSL bravely stepped up to the plate on this issue when equal treatment for nonmarital children was in its infancy. To illustrate, examine the key number system in a West Reporter circa 1973. You will not be able to find a listing for "illegitimate children" or "children out-of-wedlock" (today's listing). Rather, the key number system of that era listed the topic under "Bastards."
50. A long-time aspect of the presumptions created in UPA (1973), which incidentally has been a lot of fun to teach over the years, was discovered during the floor debate:
51. COMMISSIONER WILLIAM R. BREETZ, JR. (Connecticut) : It seems to me that the possibility exists in that context that you might find two putative fathers being at one moment in time to be suggested as the father of the same child.... It just seems to me that the legal presumption in the context where there may be a dispute is not something the Conference ought to support.
52. MR. JOHN J. SAMPSON (Reporter) : This... possibility [of two-or morepresumed fathers has existed]... ever since the Parentage Act was enacted. Multiple fathers, easily hypothesize as follows. Woman divorces. Six months later has a child. In the interim she has married a second man. Which one is presumed to be the father? Both are presumed to be the father.
53. If you went only by the presumption, you would then debate between reality of life - that is, the man she has married is probably the father of the child. The... time of conception, obviously, was when she was married to the first man.
54. The way you settle it is go to court. The way you settle it now in this act, go to the DNA testing. That is how you would resolve the conflicting presumptions which are just built in to the fact situation....
55. COMMISSIONER BREETZ (Connecticut) : I am not familiar with situations where we state in the statute that we are presuming an outcome when we know that that presumption has some likelihood of not being accurate. In the situation that you are positing, the law would require two presumptions. Then it seems to me that we ought to create a statute that says where there is a conflict, neither presumption will prevail until a court has decided it....
56. COMMISSIONER JACK DA VIES (Minnesota) : [T]his is not a factual presumption or an evidentiary presumption, but rather is a legal presumption. This presumption gives the status. If the law gives that status to two different men, then it has to be worked out by an adjudication or an acknowledgement and a denial of paternity pursuant to the next section.
57. Annual Meeting Transcript 7-31-00 at 10-11, supra note 8.
58. The ABA-IR&R Letter, supra note 7, expressed the following concern:
59. In contrast with the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA largely ignores the needs of children born outside of marriage, representing a step backward from the 1973 version. In particular: Section 204 eliminates the preexisting presumption of parenthood for an unmarried man who takes a child into his home and holds the child out as his own. See Comment to § 204
60. Reply: UPA (2000) is not a "step backward" for children; the position urged in the Greco letter had been extensively debated by the Drafting Committee. A presumption of parentage arising out of taking a child into the home of the man was eliminated because a trial on that factual assertion is considered an expensive and time-consuming manner of determining parentage. Moreover, assertion of that particular presumption could be a subterfuge to avoid the rigors of adoption of a child. With the availability of inexpensive genetic testing, the remaining presumptions are confined to those arising out of the marriage relationship. And finally, the law is misstated. The presumption in UPA § 4 (a) (4) is not limited to a claim by an "unmarried man. "
61. The ABA-IR&R Letter, supra note 7, expressed the following concern:
62. The new UPA invades the privacy of individuals and families by requiring that, to make a voluntary acknowledgment of paternity, the person must swear under penalty of perjury that the child was conceived as a result of his sexual intercourse with mother. See §§ 301, 302
63. Reply: Admittedly the' Drafting Committee never considered invading privacy as a consideration for requiring that a man who swears to an acknowledgment must assert himself to be the genetic father of a child through the standard means of acquiring that status. To adults who do not believe in storks, it is a "DUH!" proposition that a man acknowledging paternity is confessing sexual intercourse with the mother. As the comments to §§ 301-02 note, the Drafting Committee was concerned that a voluntary acknowledgment could be falsely employed to avoid application of state adoption laws or to perpetrate a fraud on the real genetic father. Thus, the purpose of the swearing "under penalty of perjury" is to try to ensure that this short-cut to parentage does not open the door to the possibility of wholesale fraud. Acknowledgment is intended to be applicable only in fact situations in which both the mother and the genetic father agree on the genetic relationship between the child and the acknowledging father. Uniquely, in the situation described it would be the mother who could not be certain of paternity in the absence of sexual intercourse.
64. Only when it is understood that the ABA-IR&R concerns are actually centered on protecting gay and lesbian rights does this particular concern make any sense at all. The focus of this concern is the gay man who seeks to assert paternity of a child but cannot honestly swear the child was conceived through sexual intercourse with the mother. Given the millions of out-of-wedlock children whose paternity is yet to be established, many of whom were born to married women and genetic fathers other than the women's husbands, the IR&R Section has its priorities badly out of balance. The few gay men in the fact situation described (perhaps hypothesized is a better verb) have a ready alternative, to wit, a parentage suit under Article 6 of this Act. The Conference, like Congress which created the acknowledgment procedure, drafts statutes for the overwhelming majority of likely cases, and not for the exceptions. Here the ABA-IR&R would have us focus on a relatively miniscule number of cases to the detriment of the thousands of children born under these circumstances.
65. This Miranda-type warning was added at the NCCUSL Annual Meeting in response to the following suggestion.
66. COMMISSIONER BATTLE R. ROBINSON (Delaware) : [S]everal years ago in the Uniform Adoption Act we dealt with consents to termination of parental rights. In that act, we gave a long list of elements that are necessary for an informed consent. We also had very specific information about the person who could take that consent. This act, as far as I can tell, for an acknowledgement, which has equally weighty legal consequences, has no such protections. You have to remember that these are mainly signed at hospitals shortly after the birth of a child, a highly emotional time, that many of the people who are signing these acknowledgements are not highly educated and, indeed, many are teenagers. I wonder if the committee would be willing to put in a factor No. 5 [so the signatories]... will have some indication of the legal consequences of what they are doing.
67. Annual Meeting Transcript 7-31-00 at 19, supra note 8.
68. Congress apparently did not consider this possibility, leading to the conclusion that Congress knows as much about family law as a dog knows about chess (dogs do know poker, I've seen pictures of them playing). Given the tens of thousands, if not hundreds of thousands, of such cases every year, it is was necessary to construct a statute that takes into account the fact that in many cases somewhere out there is a presumed father of a child born to a married woman and her current "boyfriend," (the word "paramour" having fallen into disfavor).
69. As with the preceding note, the authorization for filing an acknowledgment and a denial of paternity separately takes the reality of these fact situations into account. It is hard to imagine as a commonplace occurrence a scene in which the mother, her lover, and her previously-absent husband all gather together after the birth of a child as a happy trio with their faces pressed up against the nursery glass.
70. This provision is the result of a long, complicated discussion on the floor at the NCCUSL Annual Meeting.
71. COMMISSIONER ROBINSON: I am concerned about the fact that [§ 305]... has no provisions stating when the acknowledgement... becomes effective. I think it's implied throughout this section that it's effective upon filing, but it never states that anywhere in this section.... There are other times that an acknowledgement may take effect, such as the date at which the acknowledgement is executed or the date set out in the acknowledgment.... I think that needs to be made clear in this section.
72. The terms are not defined in the federal act. It will be left to state courts to construe the requirements for a "challenge." Since the PRVVORA requirements have been in place, several state cases have discussed "fraud, duress, and mistake of fact" in the context of challenges to acknowledgments of paternity. State of West Virginia ex rel, Dept. of Health and Human Services v. Michael K., 531 S. E.2d 669 (W. Va. 2000), stated that the ultimate decision should involve consideration of all applicable preferences, presumptions, and equitable principles that must be applied in paternity cases-including, as the paramount factor, the best interests of the child.
73. In White v. Cordier, No. FA 940616380, 2000 WL 773006 (Conn. Super. Ct. 2000), the court stated:
74. [T]he court finds the language of the paternity acknowledgment act instructive in determining what constitutes a "mistake." The statute includes "evidence that he is not the father" as a "material mistake of fact." The court observes that there is no requirement of "mutual mistake." The material mistake can be mutual or unilateral. Secondly, it is significant that the clause is preceded by the word "may." Thus the amendment still does not create a bright line standard but merely allows the court to consider evidence of non-paternity among other factors.
75. It is difficult to consider what happened at the initial trial in this case to fall under the rubric of "mistake." The defendant's lack of diligence at trial is also a factor on the issue of mistake. The facts were all before the trial court. DNA testing had been ordered. If there was a mistake it was caused by the defendant's failure to avail himself of the DNA test timely or even within four months after trial. The court does not find mistake to be an appropriate basis to open this judgment.
76. See Appendix to Section 309: Methodology for Rescinding Acknowledgment of Paternity, infra, which provides a table identifying the methods with which various states address the issue as of May 1999.
77. The "infamous Footnote 9" in Stanley v. Illinois, 405 U. S. 645, 657 (1972), mentions publication of notice to unknown alleged fathers. As a result, many states, either through their enactments or through legislative inaction, demonstrated a need for guidance on the subject of the rights of unwed fathers. In 1984 the Uniform Law Conference decided that an Act dealing specifically with those rights would be appropriate and helpful. This ultimately led to the promulgation of the Uniform Putative and Unknown Fathers Act in 1988 [hereinafter UPUFA (1988)]. The intent of this act was to codify U. S. Supreme Court decisions and to provide answers to some questions left by decisions interpreting Stanley. Unfortunately, the Act has not received any acceptance-not a single state has enacted it. UPUFA (1988) was withdrawn by the Conference with the promulgation of UPA (2000), which incorporates lessons learned from that worthy, but failed venture.
78. See Appendix to Section 401, Paternity Registry Statutes, infra.
79. Included in the critics of Lehr v. Robertson, 463 U. S. 248 (1983), was the prior formulation by the Conference. The comment to UPUFA § 3 states:
80. The Act does not include a putative fathers registry [because]:
81. While "ignorance of the law is no excuse," most fathers or potential fathers-even very responsible ones-are not likely to know about the registry as a means of protecting their rights, and the objective is providing some actual protection, not relying on a cliche more relevant to the criminal law;
82. Individual state registries do not protect responsible fathers in interstate situations; and
83. Since the registries rely on unsupported claims, their accuracy is in doubt and their potential for an invasion of privacy and for interference with matters of adoption, custody, and visitation is substantial. It has also been pointed out that such a registry could provide a means for blackmailing the mother. The registry can, however, provide a simple (albeit "hard- nosed" and potentially unjust) solution when a father fails to register, as in Lehr v. Robertson.
84. 9B U. L. A. 2000-2001 Supp. at 106. The hostility of the Conference in 1988 for the Lehr decision has not abated in the intervening period. During floor discussion on the paternity registry, Commissioner Art Peterson (Alaska), former Chair of the UPUFA Drafting Committee and member of the UPA (2000) committee, termed the U. S. Supreme Court decision "outrageous." 2000 Annual Meeting Transcript 7-31-00 at 32.
85. In 1988 NCCUSL explicitly rejected adoption of a paternity registry in its promulgation of UPUFA (1988). In contrast, UPA (2000) accepts the concept of a Registry of Paternity, but with some significant differences from the New York model.
86. As pointed out by Commissioner Eugene Burdick (North Dakota), long-time Chairman of the ubiquitous Style Committee, the parent-child relationship may have been established in an earlier lawsuit under a different statute, perhaps even in another state. 2000 Annual Meeting Transcript 7-31-01 at 32.
87. Supra note 27. Moreover, in Lehr, the father was actually already in litigation seeking to establish his parental rights, but still did not prevail because he had failed to register his claim. The Supreme Court affirmed on the basis that the genetic father had failed to register in compliance with the statute.
88. Supra note 27.
89. Supra note 25.
90. UPUFA § 3 provided a wealth of detail regarding notice to putative and unknown fathers in the context of adoption proceedings and various other child "care and protection" proceedings that could result in a dispositional order terminating parental rights. In contrast, § 405 abstains from the creation of special rules for notice to an alleged father after the child reaches one year of age. Notice to the alleged father is left to the regular state law regarding notice of the proceeding.
91. By granting the court apparently almost unlimited authority to designate recipients of the information, the laundry list following subsection (b) (1) is exemplary, not exclusive.
92. The drafting of this chapter was immeasurably assisted by the Drafting Committee Observer George C. Maha, Ph. D-J. D. Dr. Maha is a medical geneticist and Director of Laboratory Operation, Department of Parentage Evaluation, LabCorp. The author also received considerable instruction about the science affecting this chapter from Margaret J. Sampson, Ph. D-J. D, a molecular
93. Reliance was also placed on Dr. Maha's chapter in Nina Vitek (Editor), Disputed Paternity Proceedings, ch. 15, Analysis of Genetic Test Results for Courtroom Use (Matthew Bender 2000)
94. Id., ch. 14, Kamrin T. MacKnight, Scientific Aspects of DNA Testing.
95. Time and time again in floor debate the commissioners at the Annual Meeting expressed concern about genetic privacy. Approximately 25% of the total pages in the transcript of the discussion of UPA (2000) were devoted to the subject. See Appendix to Article 5, Excerpts of Genetic Privacy Debate, NCCUSL 2000 Annual Meeting.
96. The addition of the language in § 501 limiting genetic testing "to determine parentage" is illustrative of the serious concern the Conference expressed about the issue. One of the many vigorous discussions on this subject-two pages in the original transcript-may be summarized as follows:
97. COMMISSIONER SELDON F. KURTZ (Iowa) : Why doesn't the scope section indicate that the purpose of this testing is for the determination of parentage or for the purpose of determining the parentage is not existing?... I have two concerns. One, I assume here testing is limited for the purposes of this act. Two, I am very concerned about whether or not the specimen may be available at some future point in time for other purposes....
98. COMMISSIONER K. KING BURNETT (Maryland) : I think that is a good point. When you read this section alone, the scope section, it could be criminal... the
99. Person is being tested to see if they are the killer or whatever-There is no limit. It says any genetic testing.
100. COMMISSIONER TINDALL: The reporter has suggested to me that it's okay to say this article governs genetic testing for the purpose of [determining] paternity of an individual. Does that address your concern?
101. COMMISSIONER KURTZ: That makes me happy.
102. Annual Meeting Transcript 7-31-00 at 42-44, supra note 8.
103. Catawba County v. Khatod, 479 S. E.2d 270 (N. C. Ct. App 1997) (jury found nonpaternity of defendant with 99.99% probability, husband's exclusion not admitted in evidence);
104. Yokley v. Townsend, 849 S. W.2d 722 (Mo. Ct. App. 1993) (defendant voluntarily submitted to testing without court order; court sustained objections regarding lack of chain of custody and foundation for overcoming hearsay).
105. The Drafting Committee concluded that eleven sections are necessary to cover the subject of genetic testing. Compare this approach with the whole of the statutory formulation regarding "blood tests" in UPA (1973), to wit: § 11. [Blood Tests].
106. (a) The court may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood tests. The tests shall be performed by an expert qualified as an examiner of blood types, appointed by the court.
107. (b) The court, upon reasonable request by a party, shall order that independent tests be performed by other experts qualified as examiner of blood types.
108. (c) In all cases, the court shall determine the number and qualifications of the experts. § 12. [Evidence Relating to Paternity]. Evidence relating to paternity may include:...
109. Blood test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity;....
110. The second sentence was added after a question by an alert commissioner:
111. COMMISSIONER LEO H. WHINERY (Oklahoma) : I assume that... providing a record of a genetic testing expert, is admissible as evidence of the truth of the facts asserted and the report gets you over the hearsay hurdle. Don't you want that record to be authenticated, or are you relying on the general rules of evidence for purposes of authenticating that record?
112. COMMISSIONER HARRY L. TINDALL (Texas) : [I]t' s got to be signed by a designee of the agency and it has to contain certain information. [W]e certainly intend for it to be self-authenticating, and that is certainly the prevailing practice in all 54 jurisdictions... The report comes in as the truth of what it says.
113. Annual Meeting Transcript 7-31-00 at 82-83, supra note 8.
114. Dotson v. Petty, 358 S. E.2d 403 (Va. Ct. App. 1987), reversed the trial court's finding that the report of the results of genetic testing was not admissible in a paternity case because the pilot of the airplane that transported the specimens did not testify regarding the chain of custody. Other jurisdictions apparently have not had this problem.
115. State ex rel. K. R. v. Brashear, 841 S. W.2d 754 (Mo. Ct. App. 1992), states that an item need not be continually possessed, and hand-to-hand evidence is not required.
116. DeLaGarza v. Salazar, 851 S. W.2d 380 (Tex. App.-San Antonio 1993, no writ), confirms that a verified report will suffice without the necessity of laying a business records predicate.
117. All states except Texas employ either testing based on the probability of paternity or the combined paternity index, or both. Thus, there will be a minimum impact on legal precedents.
118. Rebutting the presumption elicited some attention at the Annual Meeting: COMMISSIONER MORGAN: But as I read this... the objecting party could call his own experts to challenge the results of that testing, and if that was done, then the nonobjecting party would hire another set of experts to challenge the qualifications of the objecting party's experts.
119. DR. GEORGE C. MAHA: It should be resolved fairly quickly unless there is a discrepancy between the two laboratories. Then you would have to resolve the discrepancy, which may or may not involve additional testing.
120. COMMISSIONER TINDALL: How often does that occur?
121. DR. MAHA: Very rare. Maybe one or two cases a year out of several hundred thousand.
122. Annual Meeting Transcript 7-31-00 at 83-84, supra note 8.
123. See Appendix to Section 505, Table of Paternity Presumption Statutes, infra. In considering the "99 percent probability standard," it is crucial to note that a proceeding to adjudicate paternity is a civil action to be decided on a "preponderance" of the evidence. It is not a termination of parental rights lawsuit to be decided on "clear and convincing" evidence, nor a criminal action to be judged on evidence "beyond a reasonable doubt."
124. This clause came straight from the floor debate regarding genetic privacy, as follows:
125. COMMISSIONER REX BLACKBURN (Idaho) : [T]he committee may be amenable to adding the following... "for good cause shown and under such circumstances as the court deems just." That would allow the court to determine whether the testing is appropriate... and, secondly, to govern the disposition of the specimen and the results in a manner that protects the privacy interests of the individual being tested.
126. COMMISSIONER HARRY L. TINDALL (Texas) : [T]hat is acceptable [for] the court [to] enter such protective measures as to provide maximum protection to the genetic privacy of the individual tested.
127. 2000 Annual Meeting Transcript 7-31-00 at 68, supra note 8.
128. In some cases, a court has refused to order the testing for lack of personal jurisdiction. William M. v. Superior Court (Dana F), 275 Cal. Rptr. 103 (Ct. App. 1990), held that the trial court lacked authority to order putative grandparents to be tested. The putative grandparents were not proper parties, either in their individual capacities or as parents of the deceased alleged father of an out-of-wedlock child. Other courts have ordered the testing on the basis that the individual needed for testing is an essential witness.
129. In Estate of Rogers, 583 A.2d 782 (N. J. Super. Ct. App. Div. 1990), four claimants asserted that they were the children of a decedent. This claim was resisted by four children born to the marriage of decedent and his ex-wife, who was a nonparty because she had been divorced from decedent before he died. The appellate court concluded the ex-wife/mother was a witness with testimony that could be ordered and sanctioned if she refused to provide a sample for DNA testing. At least one state has incorporated language similar to this section in its statutes.
130. See Minn. Stat. Ann. § 257.62 (1).
131. The views of the Drafting Committee that the invasion of privacy is "relatively slight" and far outweighed by the right of the child to have parentage determined is not a universal. A substantial minority of commissioners saw it otherwise, regarding § 508 as a violation of genetic privacy. Surprisingly, this section was the most controversial provision in the entire Act. It is the only part of the Act to trigger a floor vote; a motion to delete § 508 was defeated by a division vote of 92-35, 2000 Annual Meeting Transcript 7-31-00 at 67-68, supra note 8. See Appendix to Article 5, Excerpts of Genetic Privacy Debate, NCCUSL 2000 Annual Meeting.
132. In Illinois Dept. of Public Aid ex rel. Masinelli v. Whitworth, 652 N. E.2d 458 (I11. App. Ct. 1995), one of two identical twin brothers was the genetic father of the child (paternity indices of above 500 to 1), but which one? Nongenetic evidence indicated which of the twins was the more likely winner of the parentage award.
133. See e.g., 10 N. J. Stat. Ann. 10:5-43. Genetic Privacy Act;
134. See William F. Mulholland, III and Ami S. Jaeger, Genetic Privacy and Discrimination: A Survey of State Legislation, 39 Jurimetrics J. 317 (1999) [hereinafter Mulholland & Jaeger];
135. Karen Ann Jensen, Genetic Privacy in Washington State: Policy Considerations and a Model Genetic Privacy Act, 21 Seattle U. L. Rev. 357 (1997);
136. George P. Smith II, Accessing Genomic Information or Safeguarding Genetic Privacy, 9 J. L. & Health 121 (1994-95).
137. The ABA-IR&R Letter, supra note 7, expressed the following concern:
138. The genetic testing provisions of the UPA raise serious privacy concerns relating to the future use of specimens used for genetic testing, judicial orders for genetic testing, the confidentiality of test results, and unauthorized release of genetic information.
139. Reply: UPA (2000) § 511 deals directly with such concerns. A jurisdiction may elect to enact other state law to protect the unauthorized release of such records. Or, a state may elect the nondisclosure requirements of UPA, that conditions release of the results of genetic testing on either a court order or written authorization of the person tested.
140. Hall v. Lalli, 977 P.2d 776 (Ariz. 1999), held that a child's cause of action to establish his parentage is not precluded by a prior dismissal with prejudice of his mother's paternity suit against the alleged father. Supposedly, the doctrine of res judicata did not apply because the child was not in privity with either his mother or the state in the prior proceeding.
141. In 1973, the concept expressed in subsection (b) was labeled as "a novel, but not unheard of, extension of the 'long arm' concept." By 2000, this concept has been accepted in every American jurisdiction thanks to its inclusion in UIFSA.
142. See Appendix to Section 606, Statutes of Limitation for Establishment of PATERNny; Child Without Presumed Father.
143. See Appendix to Section 606, Statutes of Limitation for Establishment of Paternity; Child Without a Presumed Father, infra. UPA (1973) set "[three] years" beyond the age of majority. The comment in UPA (1973) § 7 noted:
144. The three year provision... will serve as an admonition that paternity actions should be brought promptly. In effect, however, this section provides for a twentyone-year statute of limitations, except that a late paternity action does not affect laws relating to distribution and closing of decedents' estates or to the determination of heirship. Since the U. S. Supreme Court decisions speak in terms of the child's substantive right to a legal relationship with his father, it was considered unreasonable to bar the child's action by reason of another person's failure to bring a paternity action at an earlier time. On the other hand, it is fully understood that such an extended statute of limitations will cause problems of proof in many cases.
145. See Appendix to Section 607, Standing to Challenge Marital Presumption of Paternity.
146. The Supreme Court issued five separate opinions in the process of upholding the California statute. The key questions raised were whether either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution is violated by a state's creation of a conclusive presumption of paternity based on the marital status of the mother at the time of birth. Justice Antonin Scalia, writing for a plurality of the court (only three Justices signed his lead opinion), declared that California's conclusive presumption did not violate either the substantive or procedural due process (or equal protection) rights of the biological father, even though:
147. There was clear and convincing scientific evidence of the putative father's paternity;
148. There was no full evidentiary hearing held on paternity or the best interest of the child;
149. The mother acknowledged the putative father's paternity;
150. The putative father had volunteered emotional and financial support of the child; and
151. The putative father had lived with the mother and child for a period of time.
152. While an opinion from such a divided court may be narrowly construed, nevertheless it sends a chilling message to those who may father a child of a married woman that, even if they "act like a father" and "develop a relationship with their offspring," the sanctity of the "unitary marital family" may be upheld.
153. On the other hand, recent state court decisions indicate that there is some weakening of the conclusive presumptions based merely on the marital status of the mother at the time of birth. A substantial number of states have construed their state constitutions to hold that a genetic father has a right to establish his paternity of a child despite the objections of a married woman and her husband. E.g., In re J. W. T., 872 S. W.2d 189 (Tex. 1994);
154. R. McG. v. J. W., 615 P.2d 666 (Colo. 1980). Although California continues to adhere to its Michael H. position
155. Dawn D. v. Superior Court, 952 P.2d 1139 (Cal. 1998), in a strong dissent Justice Chin notes that "in at least 20 states alleged natural fathers in circumstances similar to [the Michael H. facts] are entitled to some form of a hearing before they are forever excluded from the lives of their biological children. "
156. Id. at 1158.
157. The ABA-IR&R Letter, supra note 7, expressed the following concerns: [UPA 2000] is also inconsistent with ALI Principles of the Law of Family Dissolution, which expressly extend parentage by "estoppel" to unmarried couples, both heterosexual and same sex.
158. In contrast with the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA largely ignores the needs of children born outside of marriage, representing a step backward from the 1973 version. In particular: § 608 limits the application of 'estoppel' principles for assigning parental responsibility, including child support obligations, to married couples. See Comment to § 608.
159. Reply: No case law supportive of paternity by estoppel outside the context of marriage has been discovered. In fact, this position has been specifically rejected in case law, see Van v. Zahorik, 597 N. W.2d 15 (Mich. 1999). No legislature has recognized such basis for parentage-and especially no legislature has recognized parentage by estoppel for a same sex couple. The ALI Principles on the Law of Family Dissolution, Tentative Draft No. 4 (April 10, 2000), are aspirational only, and do not purport to be a restatement of Family Law as we know it in 2001. The "Principles" do not cite case or statutory law in support of their positions. Finally, UPA (2000) deals only with parentage and does not deal with parental rights and duties, which are left to other state law. Accordingly, cases dealing with equitable estoppel for child support are not relevant to UPA (2000).
160. As noted in the annotation to § 103, supra, nothing in this act is meant to preclude or override the equitable authority of a court to estop parties from denying the paternity of a man whose paternity would not be established under this Act, but who has acted as the child's father for sufficient time, and under such circumstances, as to make it unjust, and against the child's interests, to allow him or the mother to contest his legal status as the child's father. The estoppel doctrine has been used in this way by courts with respect to unmarried as well as married men.
161. E.g., Wright v. Newman, 467 S. E.2d 533 (Ga. 1996) (imposing child support obligation by estoppel on man who was neither the mother's husband nor the child's biological father). Under similar circumstances the ALI Principles argue that an equivalent estoppel should be imposed upon mothers who in a custody or visitation contest deny the paternity of the man who has always been the child's social father. The Principles recommend treating such cases under a general rubric of "parent by estoppel" applicable to married and unmarried parents alike. For its recommendations and its survey of the relevant case law
162. See ALI Principles, supra note 7, §§ 2.03 and 3.03.
163. The fact that this section explicitly does not apply to a child was triggered as follows:
164. COMMISSIONER MARTHA LEE WALTERS (Oregon) : Am I right that a child can always seek an adjudication of his or her father's paternity? There is no statute of limitations for a child?
165. COMMISSIONER HARRY L. TINDALL (Texas) : That is correct, unless the child had been previously represented by an attorney ad litem in another proceeding.
166. COMMISSIONER WALTERS: Okay. So, in part (b) here, it says an individual who is neither a signatory, et cetera. Would that include the child?
167. COMMISSIONER TINDALL: No. What this is saying is, if the child has an acknowledged or adjudicated father, an individual who is neither a signatory to the acknowledgment nor a party to the adjudication has two years [to commence a proceeding]. This is foreclosing the outsider who was not a party to the proceeding.
168. COMMISSIONER WALTERS: I understand your intent, Harry, but doesn't a child fit within the terms "an individual who is neither a signatory nor a party." That is broad enough such that it would include the child even though you do not intend it to. You mean an individual other than a child....
169. COMMISSIONER TINDALL: Yes.
170. Annual Meeting Transcript 7-31-00 at 77, supra note 8.
171. Some things are best left to the tender mercies of general state law:
172. COMMISSIONER WILLIS: Is the term "genetic testing expert" defined?
173. COMMISSIONER TINDALL: I don't think so. The genetic testing results are certainly described.
174. COMMISSIONER WILLIS: [H]aving worked on the rewriting of Uniform Rules of Evidence, it troubles me a bit that you are trying to write some special rule of evidence here. But having looked at Daubert and the problems wrestled with there, what happens if you have a complaint that this so-called expert is not expert, that the methodologies being used are unacceptable?
175. COMMISSIONER TINDALL: [I]t would be up to the court to qualify the expert. Are you a recognized expert in your field? And what is your training? And do you have knowledge beyond the knowledge of a layman in this field? It would be up to the party to qualify the expert....
176. COMMISSIONER WILLIS: [T]he result always happens when you try to write some special evidentiary or procedural rule without fully defined terms, you either have to go back and rewrite the entire code or wind up with these sometimes horrendous problems.
177. COMMISSIONER TINDALL: Well, there are special rules here to let these genetic test results in. We can look at if we need to maybe say the genetic test results are admissible as evidence of the truth-[T]he proceeding [is] subject to your state's rules of civil procedure, which would include your rules of evidence-we can't do more in this act other than say we have special rules for the admissibility of the testing results and we have rules allocating who is going to pay for them to come to court if there are games being played. But we can't go beyond trying to prescribe in this code their training, their special expertise.
178. Annual Meeting Transcript 7-31-00 at 84-85, supra note 8.
179. The view of genetic science is that a "battle of experts" is seldom, if ever encountered:
180. COMMISSIONER LISA KELLY MORGAN (Connecticut) : [S]ubsection (b)... provides that the objecting party bears the expense for the expert testifying. Does the objecting party also have to pay for the nonobjecting party's experts?... I interpreted it to mean that the objecting party could call his own experts to challenge the results of that testing, and if that was done, then the nonobjecting party would hire another set of experts to challenge the qualifications of the objecting party's experts. Once you get into the battle of the experts, then who bears those fees?
181. COMMISSIONER TINDALL: It really wouldn't work that way. There is going to be one round of testing ordered by the court, and either the father is excluded, at which time we provide that the mother have the court order by right a second round of testing, or the father is included, at which time the father has an absolute right to a second test. This is federal law. But they pay for the second round.
182. COMMISSIONER MORGAN: And that would be the end of it. There wouldn't be any further rounds after that?
183. DR. GEORGE C. MAHA: It should be resolved fairly quickly unless there is a discrepancy between the two laboratories. Then you would have to resolve the discrepancy, which may or may not involve additional testing. [This is] Very rare. Maybe one or two cases a year out of several hundred thousand.
184. Annual Meeting Transcript 7-31-00 at 83-84, supra note 8.
185. There are issues at trial involving DNA testing that are not subject to summary disposition:
186. COMMISSIONER CARLYLE C. RING, JR. (Virginia) : In this section you say admissible to prove.... I think all you're really talking about is that it meets the initial burden of persuasion. If I wanted to contest the reasonableness of the bill, I can put in evidence, I assume, to rebut that. I am just wondering whether you could use a different term rather than saying admissibility to prove, because "prove" seems to imply more than simply that I have a rebuttable prima facie case.
187. COMMISSIONER TINDALL: "Admissible to establish," and that gets away from this burden of proof, the shifting of the burden, and so on....
188. Annual Meeting Transcript 7-31-00 at 86, supra note 8.
189. Compare Cable v. Anthou, 674 A.2d 732 (Pa. Super. Ct. 1996)
190. Aff' d, 699 A.2d 722 (Pa. 1997) (mother failed to show DNA buccal swab testing defective; alleged father not subjected to second testing)
191. With In re Paternity of Bratcher, 551 N. E.2d 1160 (Ind. Ct. App. 1990) (first test excluded alleged father; court had authority to order second round, which indicated he could be the genetic father).
192. See Nadine E. Roddy, The Preclusive Effect of Paternity Findings in Divorce Decrees, 10 Div. Litig. 169 (Sept. 1998).
193. See Nadine E. Roddy, The Preclusive Effect of Paternity Findings in Divorce Decrees, 10 Div. Litig. 169 Id. (1998).
194. In confronting the issue of parentage in conjunction with the modern forms of assisted reproduction, the Drafting Committee was fortunate to have the advice of observer Ami Jaeger, Santa Fe, NM, Co-chair of the ABA Family Law Section Reproductive and Genetic Technologies Committee. Another member of that committee, Bruce Wilder, Pittsburgh PA, also contributed significant input. To download the latest draft version of the proposed Model Act to regulate ARTS, go to http://www.abanet.org/family/home.htmI, and open the "Reports" section. Note that the scope of this Act is limited to parentage issues, while the proposed Model Act is a comprehensive attempt to deal will all aspects of ARTS.
195. In addition, American Academy of Matrimonial Lawyers observer Ellen A. Yarrell, Houston, TX, is very knowledgeable on the practice issues thanks to her involvement in innumerable cases involving ARTS.
196. Although the pace of scientific advances in assisted reproduction during the last one-third of the 20th Century is mind-boggling, the subject is not new to the Conference. As long ago as the promulgation of UPA (1973), the Conference endorsed the only then-existing method of assisted conception. The statutory text and comment stated:
197. § 5. [Artificial Insemination].
198. (a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband's consent with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown.
199. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived. COMMENT
200. This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was thought useful, however, to single out and cover in this Act at least one fact situation that occurs frequently. Further consideration of other legal aspects of artificial insemination has been urged on the National Conference of Commissioners on Uniform State Laws and is recommended to state legislators....
201. This is not to imply that ARTS is strictly an American phenomenon. See Symposium, 35 Tex. Int' l L. J: 1 (2000). Included are:
202. Dalia Domer, Human Reproduction: Reflections on the Nachmani Case, p. 1 (Israel);
203. Aditi Gowry, Reproduction, Rights, and Public Policy: A Framework for Assessment, p. 13 (United States);
204. Loane Skene, An Overview of Assisted Reproductive Technology Regulation in Australia and New Zealand, p. 31;
205. Xizhe Ping; Population Policy and Program in China: Challenge and Prospective, p. 51;
206. Claudia Lima Marquez, Assisted Reproductive Technology (ART) in South America and the Effect on Adoption, p. 65;
207. Trees A. M. te Braake, Regulation of Assisted Reproductive Technology in the Netherlands, p. 93.
208. See Teri E. Robbins, Who Is My Mother?: Does the Uniform Status of Children of Assisted Conception Act Answer the Question?, 47 Med. Trial Tech. Q. 331 (2001).
209. A famous case involving Frank Serpico of the NYC police and movie fame stands for the proposition that a man's support duties to a child are unaffected by the fact that the child was conceived with a woman who falsely represented that she was using contraceptives. Serpico's claim that the mother's deceit deprived him of his constitutional procreative freedom did not persuade. See, In re Pamela P., 449 N. E.2d 713, (N. Y. 1983).
210. See also N. Y. Times, May 4, 1983, at Al;
211. N. Y. Times, Nov. 6, 1981, § 2, at 1. For a full exposition of the issueof reproductive freedom
212. See John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton Univ. Press 1994);
213. John A. Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 Va. L. Rev. 405 (1983).
214. The ABA-IR&R Letter, supra note 7, expressed the following concern:
215. The new UPA fails to safeguard the health of children by neglecting to provide for the collection, preservation, and consensual disclosure of medical histories and biogenetic profiles of donors.
216. Reply: UPA (2000) is not a regulatory act applicable to assisted reproductive technology generally. It is only designed to provide answers for issues of parentage when a child is born. The Drafting Committee worked with the ABA Committee on Reproductive and Genetic Technologies to make certain that the two projects would not overlap. Co-Chair of that committee, Ami Jaeger, attended the Drafting Committee meetings and fully participated. The discussion draft of the yet-to-be-proposed Model Act can be downloaded from http://www.abanet.org/family/listsum.html, the ABA Family Law Section website under "Reports."
217. This adopts the decision made by USCACA § 4 (a), which chose between conflicting views circa 1988 regarding the parental status of sperm donors. The comment to that section states:
218. Present statutory law is split concerning the parental status of sperm donors. Fifteen states have statutes... specifying that a donor will not be considered the father of a child born of artificial insemination if the semen was provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife. Fifteen other statutes... shield donors from parenthood in all situations where a married woman is artificially inseminated with her husband's consent....
219. Subsection 4 (a)... opts for the broader protection of donors provided by the latter group of statutes-This provides certainty for prospective donors. It should be noted... that... nonparenthood is also provided for those donors who provide sperm for assisted conception by unmarried women. In that relatively rare situation, the child would have no legally recognized father.
220. 9B U. L. A. 2000-2001 Supp. at 204-05.
221. Undoubtedly the USCACA (1988) statement that unmarried women resorting to ARTS would be "relatively rare" has, over time, been proven to be "relatively wrong." The issue of whether a male friend may furnish sperm to a would-be mother for a "turkey baster insemination" was quietly resolved in favor of classifying the male friend as a "donor." In 1988 that probably met the expectations of most of the parties unless there was an agreement specifically to the contrary.
222. In today s context, however, although such unofficial donation is irregular, perhaps medically dangerous, and almost certainly far more prevalent than in the long-ago bygone era of 1988. To hold liable a "donor" under these circumstances would be unfair in the opinion of the majority of persons consulted on the topic.
223. The ABA-IR&R Letter, supra note 7, expressed the following concern:
224. In contrast with the principles of the ABA, the ALI, and the purported goal of the UPA itself, the new UPA largely ignores the needs of children bom outside of marriage, representing a step backward from the 1973 version. In particular:
225. With respect to assisted reproduction, Article 7 precludes an unmarried partner form [sic] establishing parentage based on his intentions, thereby leaving a child bom to an unmarried couple through assisted reproduction with only one parent. See § 703.
226. Reply: This concern makes no sense at all. Section 703 deals only with the consent of a husband, and says nothing about assisted reproduction in the context of an unmarried couple. Section 701 is not limited to assisted reproduction by an unmarried woman, who is perfectly free to become pregnant through that means. Section 702 deals only with a "donor," as defined in § 102 (8).
227. The establishment of paternity based on intent of a nonmarital partner who contributes sperm with the intent to be a parent is analogous to § 102 (8) (A). Such a man can be found not to be a "donor" if the understanding between him and the mother was that they intended him to have parental rights, not donative exclusion of those rights. Further, if a woman has a child through assisted reproduction while living with another person of either sex, that individual may adopt the child, if permitted by other state law.
228. This section is only intended to deal with the consent required for a husband to be bound as a parent of a child born to his wife through ARTS. As the following colloquy demonstrates, there is no intent to preclude an unmarried woman from bearing a child through ARTS.
229. COMMISSIONER WILLIAM R. BREETZ (Connecticut) : [T]he qualifying word
230. COMMISSIONER TINDALL: An unmarried woman can consent to assisted reproduction in every state.
231. COMISSIONER BREETZ: So that the act does not deal with it and need not. Is that your determination?
232. COMMISSIONER TINDALL: Yes. A donor under 702 is not a parent. So, if an unmarried woman participates in assisted reproduction, she is the mother of the child under Article 3-There would be no father. That is the law we have today.
233. Annual Meeting Transcript 7-31-00 at 109, supra note 8.
234. Karen De Haan, Note, Whose Child Am I? A Look at How Consent Affects a Husband's Obligation to Support a Child Conceived Through Heterologous Artificial Insemination, 37 Brandeis L. J. 809 (1998/99).
235. Virtually every aspect of the problems associated with the scientific revolution in ARTS has been extensively commented upon. See, e.g., Ronald Chester, Double Trouble: Legal Solutions to the Medical Problems of Unconsented Sperm Harvesting and Drug-Induced Multiple Pregnancies, 44 St. Louis U. L. J. 451 (2000);
236. Laura A. Dwyer, Note, Dead Daddies: Issues in Postmortem Reproduction, 52 Rutgers L. Rev. 881 (2000);
237. Stacey Sutton, Note, The Real Sexual Revolution: Posthumously Conceived Children, 73 St. John's L. Rev. 857 (1999).
238. The entire article is bracketed, meaning that state legislatures should consider whether to delete the provisions regarding gestational agreements before introducing the Act to a legislature for consideration. In fact, the brackets represent a compromise between the Drafting Committee and important leaders of the Conference. There was, and is, a legitimate fear that the presence of this article could imperil passage of the Act, given the controversial nature of the topic of gestational agreements-more commonly known as surrogacy contracts. Certainly the track record of the Uniform Status of Children of Assisted Conception Act (1988) (a.k.a. USCACA), gives great credence to that fear, see succeeding footnote. The Drafting Committee, on the other hand, insisted that the matter was too prominent to ignore. No doubt the Drafting Committee's resolve on the subject was bolstered by the participation of two veterans of the ill-fated USCACA wars, member Peter K. Munson, Texas, and the Division Chair for Family Law issues, Robert C. Robinson, Maine, who had served as chairman of the USCACA drafting committee.
239. In conjunction with the integration of an updated version of USCACA in this
240. Act, the Conference has withdrawn USCACA (1988). Only two states, North Dakota and Virginia, have enacted the Act-the former chose Alternative B, which declares that a surrogate agreement "is void." Thus, Virginia is the only state that adopted the "real" USCACA during the dozen years that it was the policy of NCCUSL. 9B U. L. A. 2000 Supp. at 199. And, the Virginia version precludes payment to the gestational mother, which effectively precludes all gestational agreements, other than intrafamily arrangements. UPA (2000) deletes USCACA Alternative B in its entirety. See Appendix to Article 8, Table of Gestational Agreement Laws, infra.
241. A "gestational carrier" was defined in the North Dakota version of USCACA as "an adult woman, etc."
242. USCACA § 1 (3) supplied the following definition:
243. "Intended parents" means a man and woman, married to each other, who enter into an agreement under this [Act] providing that they will be the parents of a child bom to a surrogate through assisted conception using egg or sperm of one or both of the intended parents.
244. The now partially-passe rationale in the comment stated that:
245. The strong desire of some childless couples for a biologically-related child together with the technological capacity to utilize the sperm of a husband in impregnating a woman not his wife and the willingness of others to aid such couples in satisfying those desires creates a strong likelihood that such agreements will continue to be written.... [The] pre-conception authorization process is roughly analogous to adoption procedures currently in place in most jurisdictions. It should be noted that... at least one of the intended parents will be genetically related to the child (ren) bom of the arrangement.
246. 9B U. L. A. 2000-2001 Supp. at 206. Obviously times and social mores have changed sufficiently since 1988 to moderate the view that at least one of the intended parents must be genetically related to their child of choice.
247. See Appendix to Article 8, Table of Gestational Agreement Laws, infra.
248. The ABA-IR&R Letter, supra note 7, expressed the following concern: Article 8 of the new UPA requires the "intended parents" in a gestational agreement to be married, to prove their infertility and inability to bear a child, and to undergo a "home study" to confirm their parental Fitness.
249. See §§ 801 (b), 803 (b). These prerequisites invade the privacy of the intended parents, are not related to any credible test of parental fitness, and are completely inconsistent with contemporary standards for evaluating the suitability of prospective parents.
250. Reply: As of March 2001, gestational agreements are statutorily voided or effectively precluded by barring compensation to the gestational mother in at least 12 jurisdictions: Arizona, District of Columbia, Indiana, Kentucky, Louisiana, Minnesota, Nebraska, New York, North Dakota, Utah, Virginia, and Washington. Appellate decisions bar gestational agreements in Massachusetts and New Jersey. Thus, there are at least 14 jurisdictions that have rejected such agreements. Five states have passed legislation authorizing gestational agreements: Arkansas, Florida, Illinois, Nevada, and New Hampshire. A few others have exempted payments for surrogacy from the baby selling statutes, but provide no other statutory framework for these agreements. The Drafting Committee believed that a parentage act cannot ignore the subject, even though the legislative terrain is less than attractive. Almost all of the positive statutes require the intended parents to be married. By a lopsided floor vote, the Uniform Law Conference rejected an effort to open gestational agreements to single intended parents. The policy of NCCUSL is to draft a uniform act that has a substantial likelihood to passage. Opening the door for unmarried persons to enter into gestational agreements obviously is not an attractive idea to state legislators (given their hostility to such agreements involving married couples). Such a proposal has virtually no chance of significant adoption by the state legislatures of this country at this juncture in our history. The other requirements for a validated agreement criticized by the ABA-IR&R Letter follow traditional adoption standards.
251. Only two topics of discussion triggered contested motions during the consideration of the Act at the 2000 Annual Meeting of NCCUSL. One was genetic privacy, which was raised over and over again, see Appendix to Article 5, infra; Mulholland & Jaeger, supra note 49. The other major bone of contentions was the restriction of gestational agreements to a married couple.
252. See Appendix to Section 801, infra. In both instances, the recommendations of the Drafting Committee prevailed.
253. Sampling of the range of published opinion compels the conclusion that it will be some time before Article 8 is "uniformly" accepted as a uniform act. See, e.g., Jay R. Combs, Stopping the Baby-Trade: Affirming the Value of Human Life Through the Invalidation of Surrogacy Contracts: A Blueprint for New Mexico, 29 N. M. L. Rev. 407 (1999);
254. Weldon E. Havins & James J. Dalessio, Reproductive Surrogacy at the Millennium: Proposed Model Legislation Regulating "Non-Traditional" Gestational Surrogacy Contracts, 31 McGeorge L. Rev. 673 (2000);
255. Weldon E. Havins & James J. Dalessio, The Ever-Widening Gap Between the Science of Artificial Reproductive Technology & the Laws Which Govern That Technology, 48 DePaul L. Rev. 825 (1999);
256. Andrew W. Vorzimer, The Egg Donor and Surrogacy Controversy: Legal Issues Surrounding Representation of Parties to an Egg Donor and Surrogacy Contract, 21 Whitier L. Rev. 415 (1999);
257. Janet L. Dolgin, An Emerging Consensus: Reproductive Technology and the Law, 23 Vt. L. Rev. 225 (1998).
258. As of April 15, 2001, logging on to Westlaw yields 703 documents dealing with the case. Two good, efforts that provide citation to a wealth of additional reading are: Carol Sanger, (Baby) M Is for the Many Things: Why I Start with Baby M, 44 St. Louis U. L. J. 1443 (2000);
259. Danny R. Veilleux, Annotation, Validity and Construction of Surrogate Parenting Agreement, 77 A. L. R.4th 70 (1989).
260. Under § 803 (b) (3), the court will be informed of the results of a home study of the intended parents and the intended parents must satisfy the standards of fitness required of adoptive parents. Formerly, a study of the gestational mother was also required because of the possibility that she could terminate the agreement, in which case the gestational mother. would have been the legally recognized mother.
261. Further protection of the child is provided by the finding required that the court must assure itself, on the basis of medical evidence, that the pregnancy will not be dangerous to the child. No medical or genetic screening is required, but health-care costs during pregnancy must be assured.
262. In re Matter of Baby M., 537 A.2d 1227 (N. J. 1988), taught the medical community not to employ that procedure in order to avoid the psychological-sociological complications triggered by the fact that in that case the gestational mother and genetic mother were one in the same. Under this Act, the decision to give up the child is made before the pregnancy by an adult woman who has already experienced a previous pregnancy, and is an agreement that has been examined and approved by a court.
263. Given today's science, it is highly unlikely that a gestational mother may truthfully assert that a child born to her in the statutory timeframe was actually created by the union of her egg and her husband's sperm. Her own reproductive system is medically shut off prior to implantation of the pre-embryos, which virtually precludes the possibility.
264. In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. App. 1998).
265. USCACA § 5 (b).
266. This provision is parallel to those provisions in adoption statutes which provide that once an adoption creates or negates a parent-child relationship, that relationship, or negation of a relationship, applies in all circumstances. While strictly speaking subsection (b) may be redundant in light of subsection (a), it is included because of the importance of the situations' listed. The introductory clause primarily is designed to deal with situations where a parent-child relationship established under this Act is later severed through the placement of a child for adoption or, conversely, situations where a parent-child relationship is negated by the Act, but is later established by an adoption.
267. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. This is the only appendix that will appear on the website or in the Uniform Laws Annotated.
268. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
269. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
270. This appendix was not a part of the drafting process, but has been added by the author for the information of the readers of the Family Law Quarterly.
271. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
272. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
273. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
274. This Appendix was relied upon by the Drafting Committee during the preparation of the Act throughout the drafting process. The information contained was not independently verified by the Reporter, but served to provide the Drafting Committee with a general overview of the legal issues described. Further, the information contained is relatively time-sensitive. For this reason, in the final promulgation of the Act this appendix was deleted and does not appear on the website or in the Uniform Laws Annotated.
275. This appendix was not a part of the drafting process, but has been added by the author for the information of the readers of the Family Law Quarterly.