Last Thursday, Rhode Island’s State Legislature passed an updated version of the Uniform Parentage Act advancing the state’s laws on parentage by over four decades! The efforts to update the archaic state laws have been in the works for years. The new law came ever so close to passing last year, but last-minute objections by Family Court Judge Michael Forte derailed the project for another year. Now its time has arrived. And Governor Gina Raimondo, has indicated her support and full intent to sign the bill into law.
The Bizarre 40-Year-Old Legal Process
The problems with the current version of Rhode Island’s parentage laws — passed in the 1970s — were numerous, and especially at issue were the state’s failures to legally recognizing different forms of families. LGBTQ parents, in particular, struggled for legal acknowledgment. Testimony in support of the bill revealed the expensive and uncomfortable legal process that many parents were forced to undertake. The nonbirthing parent of a same-sex couple, for instance, had to go through a full-blown traditional adoption process. And to do that, the couple was often required to go through a home study. Even the state’s child protective services agency testified in favor of the updated parentage laws, expressing frustration that the current requirement of home studies for same-sex couples having to adopt their own children was a waste of the department’s resources.
Even more nonsensically, the outdated law then required the couple to pay for a publication of notification to the anonymous sperm donor about the intended adoption. Seriously. That was a real requirement. And when the parents finally got to a hearing before a judge, testimony revealed that, at least in some cases, an officer of the court would call out in the hall seeking to see if there were any respondents to the publication regarding the anonymous sperm donor. “Hey, is anyone here Donor 7219!? Are you here to object!?”
So the new law removes these outdated features like they were Providence Plantations, and recognizes nongenetically related parents without requiring an adoption process. A huge step forward.
New Surrogacy Law!
Of course, I can’t not talk about my favorite topic — surrogacy. The updated law contains a section on gestational surrogacy, acknowledges the legal relationship of the parties, and codifies important legal protections. Nice! Great work, Rhode Island! Among these protections are requiring both the intended parents and the surrogate to receive a medical evaluation and mental health consultation, as well as requiring independent legal counsel. Good work on that last one especially. It’s nice to feel needed.
In a departure from the 2017 Model Uniform Parentage Act (UPA), the Rhode Island parentage law requires that at least one of the intended parents to a surrogacy agreement be a United States resident for it to be enforceable. By contrast, the current model UPA does not require any party to be a resident of the United States, or even a resident of the state at issue. Instead, having “at least one medical evaluation or procedure or mental health consultation under the agreement” occur in the state is sufficient.
Rhode Island’s change, while somewhat protectionist, is likely meant to address the reality that surrogacy is not permitted in many countries, and hopeful intended parents frequently come to the United States for surrogacy to complete their families. This provision makes it clear that “surrogacy tourism” is not welcome in Rhode Island. While a surrogacy arrangement with two non-United States residents would not be legally prohibited in Rhode Island — no one is going to jail here — however, the new law does make the gestational carrier agreement in such a situation unenforceable.
Baby Steps For Donor-Conceived Persons
The new Rhode Island Uniform Parentage Act also includes language from the model UPA intended to acknowledge the demand by donor-conceived persons to have access to information relating to their genetic history. This language follows that adopted in the states of Washington and California, which provides that a donor-conceived person is entitled to receive the name of their donor upon reaching 18 years of age. That is, unless the donor has opted not to release their identity. That is a big caveat.
Per the new statutory language, all gamete banks or fertility clinics in the state that collect donor gametes are to have the donor sign a declaration either permitting their identity to be disclosed to a resulting child upon turning 18, or not permitting the disclosure. A choice not to disclose identity can be withdraw at any time, while, in contrast, a choice for disclosure cannot be withdrawn. If the donor signed and did not withdraw a declaration for nondisclosure, the gamete bank or fertility clinic is instructed by the law to make a good faith effort to notify the donor of a resulting child who reaches out for the information after turning 18, and the donor may elect to withdraw the donor’s declaration of nondisclosure. Additionally, regardless of the donor’s option, the clinic must make a good faith effort to provide medical information to the donor-conceived person (or their parent, if still under 18) about the donor.
Given no prior legal requirements of disclosure of a donor’s identity or medical information, this is certainly a step forward.
While not everyone will agree on every aspect of Rhode Island’s new law, I think we can agree that it is, overall, a much-needed improvement. Congrats, Rhode Island, for this major victory.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.