Catching up with Obergefell: Uniform Parentage Act revisions

In 2015, the U.S. Supreme Court held that same-sex couples have a fundamental right to marry and that laws barring marriage between couples of the same-sex are unconstitutional. Obergefell v. Hodges, 135 U.S. 2584 (2015). This groundbreaking decision represented equal treatment and recognition for same-sex couples in the eyes of the law. However, while the U.S. Supreme Court had made strides toward equal treatment for same-sex couples, the rights of children born to same-sex couples and representation for their family's configurations lagged behind the court's decision.

Parentage laws were couched in gendered and traditional terms, largely identifying only male and female couples as parents, and referring only to "mothers and fathers." These traditional terms and definitions remained in the Uniform Parentage Act until the 2017 UPA revisions.

These revisions included more gender-neutral terms, predominantly found in Article 2, which defines and addresses the parent-child relationship. For example, in Section 201, "parent-child relationship" replaces the term "mother-child relationship," and "individual" replaces "woman" and "man."

Section 204 of Article 2 changes a "presumption of paternity" to a "presumption of parentage." The provisions within the revised Section 204 now also include gender neutral terms. These revisions ensure that marital presumptions regarding parentage apply to same-sex couples in conformity with Obergefell.

According to the Reporter's Comment to the 2017 revisions, "The 2017 UPA merges into a single list what had been separate provisions for establishing the parentage of women and men, respectively. This approach removes unnecessary distinctions based on gender."

The 2017 revisions also address the non-nuclear methods by which many parent-child relationships are established. For example, some provisions now reference surrogacy and assisted reproductive technology. The revisions introduce Article 9, which addresses the rights of children born through reproductive technology to collect their genetic information.

Among other provisions, Article 9 provides that a donor must have the choice to sign either an affidavit agreeing to disclose their identity to the resulting child upon request when the child is at least eighteen years of age; or the donor must sign an affidavit declaring that they do not agree to disclose their identity to the child.

Further, Article 9 provides: "Upon request by a child conceived through assisted reproduction who is at least eighteen years old, the gamete bank or fertility clinic licensed in the state that collected the gametes shall provide to the resulting child access to the nonidentifying medical history of the donor."

These UPA revisions afford children conceived with assisted reproductive technology the right to access important aspects of their genetic information, creating a "win" for children of non-traditional family configurations.

The UPA revisions make strides toward providing children of same-sex couples and non-traditional family configurations equal representation and treatment. These steps reduce discrimination by complication, in that the gender-neutral terms make the parent-child relationship much clearer when referencing non-traditional families.