Background:

Washington's Uniform Parentage Act (UPA) is based on the act from the National Conference of Commissioners on Uniform State Laws (NCCUSL). The NCCUSL amended the act in 2002 and Washington has not yet adopted those changes. The UPA governs how parentage is established and when parentage may be challenged. Washington's UPA also has provisions addressing assisted reproduction and surrogacy.

Establishing and challenging parentage

Parentage may be established under the UPA based on a presumption, acknowledgment, or adjudication. In general, a person is a presumed parent if the child was born in the context of marriage. A person is an acknowledged parent if the person signs an acknowledgment of parentage that is later filed with the state registrar of vital statistics. A person is an adjudicated parent if the person's parentage was determined in a court proceeding.

The procedures for challenging parentage vary depending on whether the person is a presumed, acknowledged, or adjudicated parent. In the case of a presumed or acknowledge parent, the challenge usually must be brought within two years from the child's birth. The parentage of a child who has a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing. There are specific procedures for when genetic testing can be ordered and used as evidence in a challenge. In some cases, the court may deny genetic testing if the court determines, among other things, that it would be inequitable to disprove the parent-child relationship.

Assisted reproduction and surrogacy

The UPA has procedures for determining parentage when a child is conceived by assisted reproduction. A donor is not a parent of the child. Generally, if a husband consents to assisted reproduction by his wife, he is the father of the resulting child. The provisions on surrogacy prohibit a person from entering into a surrogacy contract with a minor or a person diagnosed with a mental illness or developmental disability. Surrogacy for compensation is also prohibited.

Domestic partnerships

In 2009 the Legislature added language to the UPA stating that the terms such as spouse, marriage, husband and wife must be interpreted to apply equally to domestic partnerships as well as to marital relationships, to the extent that such interpretation does not conflict with federal law and, where necessary, gender-specific terms must be construed to be gender neutral.

Summary of Bill:

The UPA is amended to incorporate state-registered domestic partnerships throughout its provisions. Provisions are added to apply the UPA to same-sex couples who have children together. Gender-specific terms are replaced with gender-neutral terms. Some of the changes made by the NCCUSL are adopted.

Provisions on genetic testing are amended to specify that they do not apply when the child is conceived through assisted reproduction. The parentage of a child conceived through assisted reproduction may be disproved only by admissible evidence showing the intent of the parents.

A change is made to the provision establishing when a person is a presumed parent after the child's birth. A person is the presumed parent if the person and the other parent married each other or entered into a domestic partnership with each other after the child's birth and the person resided in the same home with the child and openly held out the child as his or her own.

Gestational surrogacy contracts

The surrogacy statutes are replaced with provisions for gestational surrogacy contracts. In a gestational surrogacy, at least one of the intended parents must have contributed egg or sperm and the woman acting as the gestational surrogate has made no genetic contribution. In a gestational surrogacy contract, the intended parents are the parents immediately upon the birth of the child. For a gestational surrogacy contract to be valid, the woman acting as a gestational surrogate, the intended parents, and the contract must meet certain requirements.

The woman acting as a gestational surrogate meets the requirements if, at the time the contract is executed, the woman:

is at least 21 years old;
has given birth to at least one child;
has completed a medical evaluation;
has given her written informed consent to the procedures;
has completed a mental health evaluation;
has consulted with independent counsel; and
obtained a health insurance policy that covers major medical treatments for the duration of the pregnancy and eight weeks after the birth.

The intended parents meet the requirements if, at the time the contract is executed, they:

have contributed at least one of the gametes (egg or sperm);
have a medical need for gestational surrogacy, as evidence by a doctor's affidavit (affidavit not necessary for same-sex couples);
have completed a mental health evaluation; and
have consulted with independent counsel.

The gestational surrogacy contract meets the requirements if:

it is in writing, witnessed by two competent adults;
it is executed prior to the commencement of any medical procedures (other than the evaluations);
both the woman acting as a gestational surrogate and the intended parents have signed an acknowledgment that they have received information about the legal, financial, and contractual rights and obligations of the contract; and
compensation, if any, to the woman acting as a gestational surrogate has been placed in escrow.

In addition, the contract must have: (1) an express agreement of the woman acting as a gestational surrogate to surrender the child to the intended parents and of the intended parents to assume sole responsibility for the support of the child; and (2) provisions for the right of the woman acting as a gestational surrogate to utilize the services of a doctor of her choosing. A contract is presumed enforceable even if it contains an agreement of the intended parents to pay compensation to the woman acting as a gestational surrogate. Nothing in the act may be construed to limit or constrain the right of the woman acting as a gestational surrogate to make all health and welfare decisions regarding herself and her pregnancy, including the right whether or not to terminate the pregnancy. Remedies for a breach of contract by the woman acting as a gestational surrogate may not include requiring the woman to be impregnated.

The parent-child relationship is established effective immediately upon the birth of the child pursuant to a gestational surrogacy contract if the requirements are satisfied and the parties' attorneys file a certification in superior court stating the parties entered into a gestational surrogacy contract intended to meet all the requirements. All court records related to the gestational surrogacy contract must be sealed and may not be open to inspection except upon court order for good cause.

If the requirements are not met, a court must determine parentage based on evidence of the parties' intent.

The Department of Health may adopt rules regarding the required medical and mental health evaluations. In the absence of rules, such evaluations and procedures for informed consent must be conducted in accordance with recommended guidelines from certain associations.

No action to invalidate a gestational surrogacy contract may be brought after 12 months from the date of the child's birth.