Nurturing Parenthood Through the UPA (2017)
A Response To
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.
Same-sex couples now have the right to marry throughout the country.1 Yet despite this important development, LGBT-parent families still often find that their parent-child relationships are not recognized and protected. In The Nature of Parenthood,2 Douglas NeJaime offers a careful exploration of why parentage law fails to protect LGBT-parent families and how it can be reformed to address those gaps in protection.
NeJaime’s article shows how parentage law fails to protect LGBT-parent families by only partially recognizing nonbiological parents. In contemporary discussions of family law, it is often claimed that parentage law seeks merely to identify and recognize biological parents.3 NeJaime shows that this claim is, at best, incomplete; the law has long recognized some nonbiological parents.4 However, the law’s recognition of nonbiological parentage has been “partial and incomplete.”5 Specifically, NeJaime demonstrates how the law recognizes nonbiological parenthood in asymmetrical ways that “reflect and perpetuate inequality based on gender and sexual orientation.”6 The marital presumption is one useful example. The marital presumption offers protection for nonbiological parents. In most states today, however, the literal text of the provision refers only to husbands, not wives.7 It is this type of asymmetry that leaves vulnerable LGBT parents and others who “break from traditional norms of gender and sexuality,”8 even in this post-marriage-equality era.
These asymmetries are cause for concern on a number of levels. First, adults in same-sex relationships are more likely to have their functional parentage relationships unprotected under current parentage law. This is yet another way in which LGBT-parent families continue to be treated unequally under the law. Second, these asymmetries can and often do harm children. If children’s relationships with their functional parents are not protected, they may experience “dire consequences.”9 In some states, “children [in these families] can legally be denied any continued relationship with one of the parents and any financial or other support from that parent.”10 In addition, these asymmetries in parentage law may be unconstitutional. Scholars and litigants alike are indebted to NeJaime for sharpening our understanding and appreciation of the inequalities that still pervade parentage law.11
After providing this context, NeJaime offers concrete suggestions as to how states could amend their parentage laws to eliminate, or at least minimize, inequality based on gender and sexual orientation.12 NeJaime gestures to courts as the entities most likely to resolve constitutional defects in parentage rules.13 But as this Response points out, constitutional oversight can also come from state legislatures. Like courts, legislatures have an obligation to comply with the Constitution. Even without being judicially ordered to do so, legislatures are well situated to proactively reform their parentage statutes to address these sex- and sexual-orientation-based distinctions that continue to permeate parentage laws in many states.
Indeed, efforts have already been made to help state legislatures do just that. The newly revised UPA (2017)14—a project of the Uniform Law Commission (ULC)—implements many of the specific reforms that NeJaime recommends.
First, the UPA (2017) expands the ways in which a nonbiological parent may establish her or his parentage. The Act carries over the holding-out provision, but revises it so that it applies equally to men and women.15 It 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.16 Finally, the Act 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.17 All ART provisions of the UPA (2017) apply equally without regard to the sex, sexual orientation, or marital status of the intended parents.18
Second, by adopting the UPA (2017), states would bring their parentage statutes into compliance with the Supreme Court’s decisions in Obergefell v. Hodges,19 Pavan v. Smith,20 and Sessions v. Morales-Santana21 by removing gender-based distinctions. These Supreme Court decisions make clear that family law provisions that discriminate on the basis of gender or sexual orientation may be constitutionally suspect. The UPA (2017) addresses this potential constitutional infirmity by removing most of the gender distinctions in the Act.22 As a result, most of the provisions in the Act apply without regard to gender or sexual orientation.
This Response to NeJaime’s article has two goals. First, I highlight some of the ways that The Nature of Parenthood deepens our understanding of both the past and present law of parentage. NeJaime carefully demonstrates that the law has long recognized nonbiological parentage, but that this recognition is rooted in and perpetuates discriminatory distinctions. Second, I show how the recently approved revisions to the Uniform Parentage Act (UPA) provide a concrete way for states to reform their parentage laws to correct many of the inadequacies identified by NeJaime.
In Part I, I provide a brief overview of the important contributions NeJaime makes in The Nature of Parenthood. Through a careful review of past and current parenthood law, NeJaime shows how the law of parenthood in many states remains rooted in and reflects gender- and sexual orientation-based distinctions. NeJaime then charts a path that addresses those legal inadequacies. In Part II, I demonstrate how states have the opportunity to put many of those proposals in place now by adopting the UPA (2017). In Part III, I show how implementing those proposals could protect children’s wellbeing and eliminate much of the discrimination identified by NeJaime.
I. inequalities in parentage law
In recent years, opponents of equality for same-sex couples have suggested that the law properly elevates biological parenthood over other forms of parenthood.23 This claim was critical to their argument about why it was permissible to exclude same-sex couples from marriage. Same-sex couples could not, the argument continued, fulfill the core purpose of marriage, which was to promote biological parenting.24 In The Nature of Parenthood, NeJaime eloquently illustrates that that narrative is, at best, incomplete. The law does and always has recognized some forms of nonbiological parenthood. The core rule for assigning parenthood to men historically—the marital presumption—”both facilitated parental recognition that departed from biological facts and cut off claims to parental recognition based on biological facts.”25 Conversely, nonmarital biological fathers generally had no parental rights historically.26 Thus, contrary to the assertions of some,27 the law has recognized and continues to recognize nonbiological parenthood.
However, NeJaime continues, the law recognizes nonbiological parentage in asymmetrical ways. Within marriage, parentage rules reflect and enforce a “gender-differentiated, heterosexual family.”28 For example, in most states, the statutory marital presumption refers only to the “husband” of the woman who gave birth to the child.29 This reinforces the perception that biology is destiny (and required) for motherhood, but not for fatherhood. Moreover, as a matter of law, some courts have refused to apply this type of gendered marital presumption equally to the female spouse of the woman who gave birth.30 These rules and decisions make it difficult for women who “separat[e] the biological fact of maternity from the social role of motherhood” to establish parentage.31 Under these gender-specific parentage rules, the parental relationships of female spouses in same-sex couples and nonbiological mothers in different-sex relationships may be unrecognized and unprotected. Moreover, by anchoring marital parenting around the woman who gave birth, the rules make it difficult for fathers in families without biological mothers to establish parenthood.
In the context of nonmarital families, “biological connection continu[es] to anchor nonmarital parenthood.”32 In most same-sex-parent families, at least one adult lacks a genetic relationship to the child. As a result, gay and lesbian parents are often denied full and equal legal recognition.
Recent Supreme Court decisions suggest that gender- and sexuality-based parentage rules are not only unjust but also unconstitutional. In Morales-Santana, the Court declared that laws, including rules about children, that “grant or deny benefits ‘on the basis of the sex of the qualifying parent’ . . . differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee.”33 In Obergefell, the Supreme Court held that same-sex couples must be permitted to marry and that these couples must be extended the rights and obligations of marriage equally.34 In June 2017, the Supreme Court held in Pavan35 that Arkansas’s refusal to list a woman on the birth certificate of a child born to her same-sex spouse was inconsistent with its prior declaration in Obergefell. In light of these and other Supreme Court decisions, parentage rules that make distinctions based on sex or sexual orientation may infringe on the fundamental right to marry in violation of the Due Process Clause, or may constitute impermissible discrimination in violation of the Equal Protection Clause, or both.36 Thus, the Arizona Supreme Court recently held that that state’s marital presumption had to be applied equally to a female spouse.37 As the Arizona Supreme Court explained, under Arizona’s marital presumption, husbands were recognized as parents even if they were not biological parents. After Obergefell and Pavan, the court continued, that rule could not “be restricted only to opposite-sex couples.”38
In addition to raising constitutional concerns, these gender- and sexuality-based asymmetries harm children.39 When the law fails to recognize and protect functional or social parent-child relationships, children are harmed in a number of ways. Thousands of children have been abruptly cut off from one of the people they looked to and relied upon as a parent.40 Experience and existing research tells us that this is damaging to children.41 In addition, children may be denied a range of critical financial protections through that person, including child support and children’s social security benefits, just to name two.42 As I have previously noted, “[W]hether children have adequate financial support, and particularly whether they have access to child support, directly impacts their overall development and well-being.”43 For these reasons, it is important to seriously consider the problems identified by NeJaime.
After identifying the asymmetrical recognition (or nonrecognition, depending on how you view it) of nonbiological parentage, NeJaime begins to chart a path forward for addressing these legal inadequacies.44 NeJaime’s proposals are not quixotic; in fact, they are achievable. Indeed, advocates and state policymakers have an opportunity to put many of these proposals into place now. As I show in the next Part, many of NeJaime’s proposals have been incorporated into the UPA (2017).
II. implementing reform—the upa (2017)
I served as the Reporter for the UPA (2017).45 First promulgated in 1973, the UPA is a comprehensive statutory scheme for determining a child’s legal parentage.46 The UPA is a product of the ULC, which “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”47 The ULC promulgates state laws on a variety of topics on which uniformity is desirable—from business matters (Uniform Commercial Code), to probate matters (Uniform Probate Code), to child custody jurisdiction (Uniform Child Custody Jurisdiction and Enforcement Act).48 While the drafters of Uniform Laws often look to state developments for guidance, the goal of the drafting process is not simply to “restate” the existing law.49 Rather, the goal is to draft “well-conceived and well-drafted” legislation.50 And often, projects are instituted to help states address newly emerging legal issues51 or to respond to developments in an area of law.
This latter goal has been particularly evident throughout the history of the UPA. As Harry Krause, the Reporter of the original UPA, explained, states had been slow to reform their parentage laws to eliminate rules that discriminated against nonmarital children. Writing in 1966, Krause explained that “few states have undertaken a comprehensive review of their position on illegitimacy, and sporadic statutes are the common denominator.”52 This lack of action on the part of state legislatures was concerning, both as a matter of policy and as a matter of law. More and more children were being born outside of marriage, and these children were being treated unequally and unfairly in many states, Krause contended.53 Moreover, Supreme Court decisions suggested that many then-existing state parentage laws were unconstitutional.54 The UPA (1973) sought to help states comply with these constitutional mandates and to fulfill what was seen as an important policy goal: eliminating the status of illegitimacy and establishing the principle of equality for all children.55
The UPA has been quite influential. Laws in over half the states are now based on variations of the UPA.56 Approximately nineteen states—ranging from Montana to Kansas to Hawaii to Rhode Island—enacted the UPA (1973) in whole or in significant part.57 And eleven states—ranging from Alabama to Wyoming to Texas to Maine—enacted the UPA (2002).58
The newest revision of the Act—the UPA (2017)—was approved by the ULC in July 2017 and is now available for adoption by the states.59 Like its predecessors, the UPA (2017) seeks to help states comply with newly recognized constitutional obligations and to better reflect and address the reality of the modern family.60 The UPA (2017) implements, in concrete statutory language, many of the important reforms that NeJaime proposes.
Like NeJaime’s prescriptions for review, the UPA revision process was guided by two principles. First, the UPA (2017) expands the pathways for recognition of nonbiological parentage.61 Second, the UPA (2017) seeks to eliminate gender-based distinctions.62 These changes help states comply with newly recognized constitutional mandates and reflect the emerging appreciation of the value in recognizing and protecting functional parent-child relationships.63
A. Recognizing the Social Bonds of Parenthood64
A core goal of the UPA (2017) is to further a principle that has animated the UPA since its inception—recognizing and protecting actual parent-child bonds.65 Often, the people who are parenting a child are the child’s biological parents. But this is not always the case. The UPA has and continues to take the position that actual parent-child bonds are important to children and that these relationships are worthy of protection, even if the parent and the child are not also connected by biology. As noted above, children may be harmed if the law fails to recognize and protect their actual parent-child relationships. The UPA (2017) furthers this core principle in several ways.
First, the UPA (2017) revises the holding-out provision so that it applies equally without regard to gender.66 The holding-out provision has been included in the UPA since its first promulgation in 1973. Under the provision, a person can be recognized as a parent based on the individual’s conduct of living with the child and treating the child as her own.67 Initially, some courts concluded that the provision could only be used to recognize functional parent-child relationships if those relationships were also based on a biological connection. For example, in In re Nicholas H., a California intermediate appellate court held that even if the holding-out presumption arose based on the man’s conduct of living with the child and treating the child as his own, the presumption was necessarily rebutted by evidence that the man was not the child’s biological parent.68 Over time, however, an increasing number of courts has rejected this limited understanding of the holding-out provision. This was true in the Nicholas H. case itself—on appeal, the California Supreme Court concluded that the man could be recognized as a parent under the holding-out provision even though he was not the child’s genetic parent.69 Courts in many other states have likewise concluded that functional, nongenetic parents can be recognized and protected under the holding-out provision.70
As noted above, the UPA (2017) continues to include the holding-out provision but takes it a step further by making the provision gender-neutral. Because a woman seeking protection under the provision will rarely be connected to the child by biology,71 this revision makes it even more clear that the purpose of the provision is to recognize and protect actual parent-child relationships, including relationships that are not biologically based.
Second, the UPA (2017) includes an entirely new method of establishing parentage—the de facto parent provision.72 Most states today extend some protection to functional, nonbiological parents.73 Some states do this through a holding-out provision.74 But even more states recognize and protect functional parent-child relationships under equitable doctrines.75 The UPA (2017) incorporates this trend in the law in a particularly robust way. Under section 609, persons alleging themselves to be “de facto parents”—that is, parents in fact—can be recognized as legal parents who stand in parity with any other legal parents, including genetic parents, for all purposes.76 This new method of establishing parentage based on function is written in gender-neutral terms and applies equally to men and women.77 In addition, the provision captures and protects relationships that may not be covered by the holding-out provision. The holding-out provision of the UPA (2017) applies only when the individual was residing with and holding the child out as her own from birth. In many cases, however, functional parents come into children’s lives at some point after they are born. The de facto parent provision provides a mechanism for recognizing these types of parent-child relationships.
Both the holding-out provision and the de facto parent provision require the development of an actual parent-child bond over time.78 Thus, a person cannot be recognized as a parent under either provision at the moment of birth. In some situations, this lag in legal recognition can leave a family vulnerable. To be clear, however, there are other provisions of the UPA (2017) under which a biologically unrelated person can be recognized as (or at least presumed to be) a legal parent at or near the moment of birth. This may be possible, for example, under the marital presumption,79 the voluntary acknowledgment process (which is described below),80 and the assisted reproduction and surrogacy provisions.81
Third, the UPA (2017) expands the classes of people who can establish parentage through state voluntary acknowledgment processes (VAP). State VAP procedures implement a federal directive. To be eligible to receive certain federal funds, states must have in place a simple, administrative process for establishing paternity.82 Once the procedures have been properly followed, completion of a VAP establishes parentage. Federal law provides that the properly completed VAP has the force of a judgment and must be recognized and respected by all other states.83 Because the systems in most states only apply to men, they are generally referred to as “voluntary acknowledgments of paternity.” Moreover, not only are the VAP systems generally limited to men, but most states allow only a man who is alleged to be a genetic father to establish parentage through this process.84
Most same-sex parent families, however, include at least one nonbiological parent. As a result, “the biological foundation of VAPs does not repair—but instead exacerbates—burdens experienced by the nonmarital children of same-sex couples.”85 To eliminate unnecessary gender distinctions and provide greater clarity and certainty to nonbiological parents, the UPA (2017) renames these “acknowledgments of parentage” and permits a wider group of people to establish parentage through this process. Section 301 provides that in addition to an alleged genetic father, a VAP can also be used to establish the legal parentage of “an intended parent” of a child born through assisted reproduction and of a “presumed parent” (which, most commonly, will be the woman’s spouse—male or female).86
This revision is an extremely important development. The new groups of people who can establish parentage under this provision are those who would already be considered or presumed to be parents under their relevant state’s law. But in the absence of a formal judgment of parentage, other states may not be required to respect and recognize that parent-child status.87 And we know from existing case law that courts do refuse to recognize the parental status of LGBT parents, even if it was clear that they were considered parents in the state in which their child was born.88 These problems arise because, absent a judgment of parentage, states often apply their own forum law when adjudicating parentage.89 And when the person is LGBT, as NeJaime demonstrates, that person may not be considered a parent under the law of many states. This new, expanded VAP procedure helps mitigate some of this uncertainty. As a result, parties would have a means of establishing a final, secure determination of parentage without having to go to court.90
Fourth, the UPA (2017) provides greater clarity and direction to courts in deciding which of multiple claimants should be declared a child’s parent when genetics and function suggest different results. The UPA requires courts to weigh a range of factors.91 These factors include: “the length of time during which each individual assumed the role of parent of the child”; “the nature of the relationship between the child and each individual”; and “the harm to the child if the relationship between the child and each individual is not recognized.”92Critically, almost all of the factors focus on the person’s relationship to the child. As such, these rules permit a court to choose social bonds over genetic bonds.93 Here again, the revision clarifies that parentage need not be based on biological connections and that biological connections are not necessarily more important than other means of establishing parentage.
To be sure, courts have discretion under section 613 when weighing competing claims of parentage. While a court could choose social ties over genetic bonds, it is not required to do so. And it is possible that a court could place significant weight on biology when weighing the respective claims. That said, this new provision makes clear that biology does not necessarily trump social bonds; if that were the case, a best-interests-of-the-child analysis that involves consideration of a range of factors focused on the individuals’ relationships with the child would be unnecessary.
B. Eliminating Gender Distinctions
In addition to the changes described above, the UPA (2017) incorporates additional reforms intended to eliminate many gender distinctions in the rules of parentage.94
The UPA (2017) seeks to further the goal of gender equality through its very terminology. The prior versions of the Act distinguished between paternity and maternity and created different mechanisms for establishing each one.95 Not only did this distinction erect different rules for men and women, but it also reinforced the notion that some inherent difference exists between mothers and fathers. In contrast, the UPA (2017) takes the position that under most of the rules for establishing parentage, an individual’s gender is not relevant.96 Accordingly, the UPA (2017) eliminates many of the gender-based distinctions from the Act and unifies the methods of establishing parentage under a single rubric. The UPA (2017) now lays out the ways in which any individual—male or female—can establish a legally recognized parent-child relationship.97
Consistent with this basic principle, throughout the Act, specific means of establishing parentage have been made gender-neutral. In addition to the provisions discussed above, the two articles addressing the parentage of children born through forms of assisted reproduction—article 7 addressing nonsurrogacy forms of ART, and article 8 addressing surrogacy—likewise replace gendered terms with gender-neutral ones. An earlier version of the Act—the UPA (2002)—had addressed the parentage of children born through ART, but its provisions referred only to intended couples consisting of one man and one woman.98 Because the provisions were written in gendered terms, some courts refused to apply these gendered statutory provisions equally to same-sex intended parents who had children together through assisted reproduction.99
Articles 7 and 8 of the UPA (2017), by contrast, cover all intended parents, without regard to the sex, sexual orientation, or marital status of the intended parents.100 These changes are consistent with NeJaime’s call for “[a] more comprehensive and evenhanded use of consent in the regulation of ART” as a means to “promote equality, based on gender, sexual orientation, and marital status.”101 By replacing gendered language with gender-neutral language, the UPA (2017) promotes equality by opening up additional methods of establishing parentage to all individuals. In doing so, the Act also works to breaks down the persistent legal and social distinctions between mothers and fathers.
The revisions to the assisted reproduction provisions also further the first identified goal of recognizing and protecting social parenthood. As was true under the UPA (2002), the UPA (2017) does not require intended parents of children born through ART or surrogacy to have a genetic connection to the resulting child.102 Indeed, under articles 7 and 8, parentage is established entirely by virtue of conduct.103 Genetic connection is simply not relevant to establishing the parentage of intended parents under these articles.104 Thus, an intended mother of a child born through assisted reproduction can be a legal mother even if she lacks a genetic or gestational connection to the resulting child.105
The Act also updates the parentage presumptions, including the marital presumption,106 to remove most gender-based distinctions. All fifty states have a marital presumption.107 In most states, however, the marital presumption expressly applies only to the husband of the woman who gave birth.108 In such states, some courts have refused to apply their gender-specific marital presumption equally to female spouses.109 In such jurisdictions, male spouses who are not biological parents are presumed to be legal parents, but similarly situated female spouses are not. This, some courts have concluded, is unconstitutional.110 The UPA (2017) addresses this potential constitutional infirmity by making the marital presumption expressly apply equally to both male and female spouses of the woman who gave birth.111
* * *
To be clear, the UPA (2017) does not entirely eliminate considerations of gender and biology. The Act still places great weight on gestation. Thus, except in cases involving surrogacy, the woman who gave birth to the child is automatically considered a parent.112 For this reason, the UPA (2017) does not go as far as NeJaime urges with regard to the marital presumption.113 Because the woman who gave birth is statutorily defined as a parent, the marital presumption only applies to the spouse of the woman who gave birth.114 It does not apply to the spouse of a man who is a legal parent. The spouse of that man may be able to establish parentage through other means, such as de facto parentage or the holding-out presumption. But he or she is not presumed to be a parent solely by virtue of his or her marriage to a parent.
In addition, the surrogacy provisions place some weight on genetics. While the intended parents need not have a genetic connection to be recognized as parents, article 8 does distinguish between gestational surrogacy and genetic surrogacy (often referred to as “traditional” surrogacy).115 One may argue that if biology is not destiny, one should treat these forms of surrogacy identically. That is, if biology does not necessarily make one a parent, the surrogacy rules should apply equally, without regard to whether the surrogate is genetically related to the child. Treating these two forms of surrogacy differently, one may argue, unnecessarily re-elevates the importance of genetic connections.
The reality today, however, is that all states that address surrogacy through comprehensive statutory schemes distinguish between the two forms of surrogacy. Most of these states simply refuse to permit and regulate genetic surrogacy expressly.116 And the few states that explicitly permit genetic surrogacy by comprehensive statutory scheme impose additional requirements on such agreements.117 While ULC drafting committees seek to advance the law substantively, they also seek to draft laws that can be widely enacted, with the ultimate goal of uniformity throughout the nation. Here, the drafting committee determined that those two goals would be best furthered by the above approach. By including and permitting genetic surrogacy, the committee was providing clear rules and therefore greater clarity and certainty for those who form families through this means. But at the same time, the provisions regarding genetic surrogacy erect additional safeguards, thereby acknowledging and responding to the political reality that state legislators have been more reluctant to enact legislation expressly permitting this form of surrogacy.
III. nurturing parentage law
If broadly adopted by a significant number of states, the revisions incorporated into the UPA (2017) would go a long way toward both addressing the discrimination that NeJaime identifies and protecting children’s wellbeing. Since its first promulgation almost fifty years ago, the UPA has been a critical lever in addressing discrimination in parentage law. By enacting the original 1973 version, states began to chip away at longstanding discrimination and unequal treatment of nonmarital children.118 It would be a tremendously positive step in the lives of children and their families if the most recent revision of the UPA was as successful as its predecessors.
As NeJaime suggests, there are a number of important reasons why states should consider revising their statutes in these ways. First and foremost, these changes help protect children and their families. Under current law in many states, people who children view and rely upon as parents may not be recognized as parents. Failing to recognize those relationships can harm children in very tangible ways.
Moreover, leaving families uncertain about their legal relationships to each other can be emotionally destabilizing. It can result in contentious litigation against an outsider who refuses to recognize and respect the family, such as an insurance company that denies benefits on the ground that they are not legal family members. Or the litigation could arise from within the family, such as upon the breakdown of the family where one person—often the biological parent—argues that the nonbiological parent is not a parent and not entitled to seek contact with the child. Family breakdowns are almost always difficult for children, and placing the child in the middle of acrimonious litigation can make that process even more difficult.
As NeJaime suggests, these families can and often do ask courts to apply gender-specific statutes in gender-neutral ways. But requiring individual families to ask courts to do this on a case-by-case basis places an enormous burden on families. It also places burdens on courts. Thus, in recent years, a number of courts have called upon state legislatures to do their part to update incomplete and outdated parentage regimes.119 By enacting clear, express statutory provisions, states can provide families with clarity about the rules governing them. This clarity can help avoid unnecessary litigation and reduce the challenges that children face during what are already difficult periods in their lives.
Enacting the UPA (2017) would also help states comply with constitutional mandates of due process and equal protection. If a state permits a husband to be recognized as a legal parent even if he is not a genetic parent, the Constitution requires the state to make the same protection available to a female spouse.120 As the Arizona Supreme Court reminded us, these constitutional mandates apply not just to courts—they also apply to state legislatures. And indeed, if the changes come from state legislatures rather than through the courts, the constitutional correction need not occur on a case-by-case basis. “[L]egislative enactments and rulemaking . . . can forestall unnecessary litigation and help ensure that [the] law guarantees same-sex spouses the dignity and equality the Constitution requires—namely, the same benefits afforded couples in opposite-sex marriages.”121 Adoption of the UPA (2017) assists states in fulfilling these constitutional obligations.
If adopted, these advances certainly will benefit and be felt by same-sex married couples and their children. Under the UPA (2017), many more of these married same-sex parents will have legally recognized relationships with their children, and these families will have greater certainty and security regarding their familial relationships as they travel about the country.
Helping states fulfill their constitutional obligation to treat married same-sex couples equally was a key impetus for the revision project. But it is also important not to overlook the fact that the impact of the UPA (2017) will extend beyond the boundaries of the marital family. Consistent with one of the core principles of the original UPA, the UPA (2017) seeks to ensure the equal treatment of nonmarital children as well.122 As described above, many of the key provisions in the UPA (2017) apply equally not only without regard to gender and sexual orientation, but also marital status. The provisions that apply equally without regard to marital status include almost all of the provisions discussed above: the holding-out provision, the de facto parent provision, the VAP provisions, and the assisted reproduction provisions. The UPA (2017) is, therefore, an example of how marriage equality successes may be leveraged to achieve progress for all families—marital and nonmarital.123
As NeJaime carefully demonstrates in The Nature of Parenthood, parentage law in most states continues to “reflect and perpetuate inequality based on gender and sexual orientation.”124 As a result, the law often leaves LGBT parents and women who separate social parenthood from genetic parenthood inadequately protected under the law. These legal inadequacies harm not only adults, but also the children in these families.
States have the opportunity to reform many of these existing limitations in parentage law by enacting the UPA (2017). The UPA (2017) implements many of the concrete reforms called for by NeJaime. I am hopeful that many states will seize this opportunity to do just that.
Courtney G. Joslin is a Professor of Law and a Martin Luther King Jr. Scholar at the UC Davis School of Law. Joslin was the Reporter for the UPA (2017). The author is grateful to Doug NeJaime and Jamie Pedersen for thoughtful feedback on this Response. For excellent editing assistance, I thank the editors of the Yale Law Journal, especially Dylan Cowit, Meenu Krishnan, Arjun Ramamurti, Erin van Wesenbeeck, and Kyle Victor.
Preferred Citation: Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589 (2018), http://www.yalelawjournal.org/forum/nurturing-parenthood-through-the-upa-2017.