Surrogacy Law Spotlight: Rhode Island’s Uniform (and Equal) Parentage Act

Written by Chelsea E. Caldwell, Esq. of Family Inceptions’ Legal Department

Rhode Island Governor Gina Raimondo recently signed into law the “Rhode Island Uniform Parentage Act.”  Effective January 1, 2021, Rhode Islanders can rely on an updated statutory framework that provides a legitimate path to parenthood for same-sex couples and those using assisted reproductive technology to build their family.  State Representative Carol Hagan McEntee, sponsor of the bill, stated that the new law is “specifically about one thing—equality and fairness, especially for the loving parents and their children in this state.”

The new law overturns Rhode Island’s 40-year-old Uniform Law on Paternity and streamlines the process for modern families to establish parentage.

The existing outdated law requires families to suffer through a difficult and expensive legal process to be recognized as parents.  By and large, the existing legal process particularly affects LGBT parents and contains some outlandish requirements.  For example, under the old law, families who require a sperm donor must publish their intent to adopt their child in order to terminate the parental rights of the sperm donor, obviously ignoring altogether the intent of the parties to a sperm donation agreement.  Then the non-birth parent must proceed with a second-parent adoption—the entire process having the potential to not be finalized until the baby is six months old.  Supporter of the bill Dr. Sara Watson, who was required to adopt her son in this fashion, stated at a news conference earlier this year: “On what planet is this in the best interests of a child?  Family has nothing to do with whether DNA matches.”  Fortunately for Rhode Island, the newly passed law will eliminate the harrowing legal process for Rhode Island families and provide a direct route to parentage for any individual or couple, regardless of their sexual orientation or existence of a genetic relationship with their child.

The new law, modeled after the Vermont Parentage Act, includes among its sections two separate articles specifically designated as “Parentage by Assisted Reproduction” and “Parentage by Gestational Carrier Agreement.”

Both articles contain provisions that permit intended parents to obtain a birth order declaring parentage of the baby before the baby is born.  Strictly concerning parentage of children born by assisted reproduction, the new statute falls in line with the intent of the parties and declares an individual is a parent if he or she consents by a signed record to assisted reproduction by another person.  However, even in the absence of a signed record, the law still allows for a court to determine the individual is a parent if it finds, by a preponderance of the evidence, that either an agreement between the parties existed prior to conception or birth, or the parties have essentially held themselves out as parents of the child after the child is born.  The statute also includes direction of parentage in the event of a laboratory error, i.e., when the clinic transfers the wrong embryo.  Aligning with the Vermont parentage law, the provision states that in that event, and the resulting child is not genetically related to either of the intended parents, the intended parents are still the parents, unless otherwise determined by a court.

Surrogacy, covered by the “Parentage by Gestational Carrier Agreement” article, also has strong protections.

The language declares that parentage rights vest immediately with the intended parents once a child is born by a gestational carrier if certain requirements are met by both parties.  To be eligible to enter into a gestational carrier agreement, the gestational carrier and the intended parents must have separate legal representation, be at least twenty-one years old, and have completed mental health consultations.  Arguably, imposing age and mental consultation requirements on parents to conceive their own child infringes on their constitutional right to procreate.  But even so, the burden is low compared to the challenges that parents face under the old Rhode Island law.  In addition, the surrogate cannot be a traditional surrogate (genetically to the resulting child) unless the surrogate is a family member of the intended parents.  The new surrogacy statute also enumerates separate requirements for the gestational carrier agreement to be enforceable.  Of those requirements, the term of the agreement cannot be one that would require more than one-year to achieve pregnancy, and at least one of the intended parents must be a U.S. citizen, consequently limiting access to international intended parents.  The gestational carrier agreement must also provide for the disposition of intended parents’ embryos, even in the event of death or divorce of the intended parents.  Customarily, intended parents make decisions regarding the disposition of their embryos as part of the fertility clinic consent forms that they are required to complete before their embryos are created.  In large part this is done to relieve the clinic from liability, but as it pertains to the interests of the intended parents, the fertility clinic consent forms are not the proper document or ideal place for this to occur.  Debatably neither is the gestational carrier agreement, but at the least intended parents will be represented by counsel in making those disposition decisions.

Provisions regulating donor banks and identifying information of donors are also a part of the new Rhode Island law.

Rhode Island donor banks must obtain a signed and notarized declaration from each donor specifying whether he or she desires to disclose his or her identity to a child conceived by the donor’s gametes once the child reaches the age of eighteen.  Under the new statute, donors are given the option at any time to withdraw their declaration of preference to not disclose their identity.  And if they do not withdraw, the donor bank must make a good-faith effort to notify the donor on request of an eighteen-year-old child conceived by the donor’s gametes, and provide the donor another opportunity to withdraw his or her declaration and disclose his or her identity to the child.  Regardless of the declaration preference, donor banks must provide the child, or the child’s parent or guardian if the child is a minor, with nonidentifying medical history of the donor.

In summary, the new law is a great step forward to bring Rhode Island up to speed with modern family building and eliminate the excessive and discriminatory legal process that has existed for decades.

The new law ensures equal access to a direct route to establish parentage for all Rhode Islanders.  As stated by Governor Raimondo: “Love is love—it’s as simple as that . . . . No parent should have to jump through hoops to receive legal recognition because of their sexual orientation or the circumstances of their child’s birth.  The Rhode Island Uniform Parentage Act enshrines into law our belief in the validity of all paths to parenthood.”

 

Do you have additional questions about surrogacy law in Rhode Island or in the United States?

Family Inceptions is excited to announce the launch of our new Interactive US Surrogacy Law Map, offering an in-depth look at the surrogacy laws in each state.

Features include:

???? Color-coded US map, with states categorized based on the legality of surrogacy in that state

???? Further delineation of how each state’s laws and practices apply to same-sex couples, married and non-married couples, single parents, the use of donor gametes including embryos, and how pre-birth orders, post-birth orders, and/or post-birth adoptions are issued.

???? Statistics regarding how marital status effects surrogacy, and a breakdown of the legality and surrogacy practices of each surrogacy-friendly state based on sexual orientation and marital status

???? Statistics regarding the “fine print” of surrogacy and a breakdown of the additional requirements that may exist in surrogacy-friendly states

???? FREE printable of the map for easy off-line access

 

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