What is the UPA?
Created in 1973 by the National Conference of Commissioners on Uniform State Laws, and subsequently revised in 2002 and 2017, the Uniform Parentage Act seeks to unify the laws governing parentage across the United States and replace laws that had been unconstitutional by U.S. Supreme Court decisions.
Implementation in California
The Uniform Parentage Act was first enacted in California on January 1, 1975. It has undergone several revisions and updates since then, the most recent version dating from 2019.
The UPA has had a significant impact on the surrogacy industry in that state. One of the main ways in which the UPA has changed the industry is by providing a legal framework for surrogacy agreements.
Prior to the UPA, there was a lack of clarity around the legal rights and obligations of the parties involved in surrogacy agreements. That void often led to disputes and litigation. With the enactment of the UPA, there is now a legal framework that governs surrogacy agreements, providing greater clarity and certainty for all parties involved.
Parentage and Consent
The UPA has also changed the way parentage is established in surrogacy arrangements. Under the UPA, a child born through surrogacy is presumed to be the child of the intended parents, as long as certain conditions are met. These conditions include that the intended parents consented to the assisted reproduction, the surrogate mother consented to the surrogacy arrangement, and the surrogacy agreement was entered into before conception.
This presumption of parentage can be overcome if there is evidence to the contrary, such as evidence that the surrogate mother did not consent to the surrogacy arrangement.
Impact on Same-Sex Parentage
The UPA has also made it easier for same-sex couples to become parents through surrogacy. Prior to the UPA, same-sex couples faced additional legal hurdles when it came to establishing parentage, as some states did not recognize same-sex marriages or did not allow second-parent adoptions.
Under the UPA, same-sex couples can establish parentage through a surrogacy agreement, regardless of their marital status or sexual orientation.
Protection of Surrogates’ Rights
Another way in which the UPA has changed the surrogacy industry in California is by providing protections for surrogates.
The UPA requires that surrogacy agreements include certain provisions, such as a requirement that the intended parents provide health insurance for the surrogate, a requirement that the surrogate be represented by independent legal counsel, and a requirement that the surrogate undergo a medical examination before entering into the surrogacy agreement.
These protections help to ensure that surrogates are not taken advantage of and that their rights and interests are protected.
Enforcement of Surrogacy Agreements
The UPA has also had an impact on the way surrogacy agreements are enforced in California. Under the UPA, surrogacy agreements are presumed to be valid and enforceable, as long as they meet certain requirements.
This means that parties to a surrogacy agreement can enforce the terms of the agreement in court, if necessary.
However, the UPA also provides that surrogacy agreements can be invalidated if they are contrary to public policy, such as if they involve the sale or trafficking of children.
A mixed record
Uniform Parentage Act has had both positive and negative effects on the surrogacy industry in California.
On the one hand, it has made surrogacy more accessible to individuals and couples who previously would not have been able to have children without assistance. On the other hand, some argue that the Act has led to an increase in commercialization and exploitation of surrogates, as well as a lack of regulation and oversight.
Accessibility of Surrogacy Services
One of the key positive effects of the Uniform Parentage Act has been its role in making surrogacy more accessible. By recognizing surrogacy agreements and providing clear guidelines for establishing legal parentage, the Act has enabled more individuals and couples to have children through surrogacy.
This has been particularly important for same-sex couples and individuals who may not have been able to have children through traditional means.
In addition, the Act has helped to ensure that children born through surrogacy have access to legal and financial benefits, such as inheritance rights, social security benefits, and health insurance coverage.
Ethical and Sociological Issues
However, some argue that the Act has also led to an increase in commercialization and exploitation of surrogates. The Act does not explicitly prohibit commercial surrogacy, which has led to the development of a thriving surrogacy industry in California.
While this has made surrogacy more accessible, it has also created a market for surrogacy services, with surrogates being paid large sums of money to carry and give birth to children. This has led some critics to argue that surrogates are being exploited for their reproductive capacity and that commercial surrogacy perpetuates economic and gender inequalities.
In addition, some critics argue that the lack of regulation and oversight of the surrogacy industry in California has resulted in inadequate protections for surrogates and intended parents.
While the Uniform Parentage Act provides guidelines for establishing legal parentage, it does not provide clear guidance on issues such as compensation, medical care, and psychological support for surrogates. This has led to concerns about the physical and emotional well-being of surrogates, as well as the potential for conflicts between surrogates and intended parents.
The California Surrogacy Enabling Act
The California legislature had worked for years to address the most crucial issues associated with the practice of surrogacy. In 2012, the legislature passed the first-ever comprehensive surrogacy law: the California Surrogacy Enabling Act.
This law provides detailed guidelines for surrogacy agreements, including requirements for medical and psychological screening of surrogates, the establishment of trust funds to ensure that surrogates receive compensation, and the provision of legal counsel for both surrogates and intended parents.
The law also provides for the establishment of a surrogacy registry to track surrogacy arrangements and ensure compliance with the law.
A Stringent Legal Framework
Both the California Surrogacy Enabling Act and the Uniform Parentage Act have been major steps forward in regulating the surrogacy industry in California. This industry now benefits from a strong legal framework within which surrogacy agency and fertility clinics operate.
True, there are still concerns about the potential for exploitation and abuse. Some critics argue that the laws don’t go far enough in protecting surrogates and intended parents, and that more needs to be done.
But overall, the UPA has had a very positive impact on the industry and all its stakeholders in California. The UPA has helped to create greater certainty and clarity for all parties involved in surrogacy agreements, which has led to fewer disputes and litigation.
