Uniform Probate Code recognizes child of assisted reproduction by lesbian couples as child of both moms

Legal parentage matters for lots of reasons. One of those reasons is that it determines whether a parent-child relationship exists for the purpose of inheriting in the absence of a will. So when a lesbian couple has a child together using donor insemination, the legal status of the biological mom's partner determines whether the child will inherit from her if she dies without a will that names the child as a beneficiary. This is one of the many reasons why a couple might do a second parent adoption and why some of us are trying to rewrite parentage statutes so that a biological mother's partner is automatically the legal parent of the child that the two of them plan for together.

Well the latest amendments to the Uniform Probate Code automatically recognize the parentage of both mothers. Like all laws written by the National Conference of Commissioners on Uniform State Laws, the Uniform Probate Code becomes law only in those states that enact it. But arguing for something that is in a uniform law is arguing for something that has been vetted by many legal experts and therefore carries an enormous stamp of legitimacy. (Colorado and North Dakota have already enacted these provisions.)

Section 2-120(f) of the Uniform Probate Code now says that "a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child."

Consent is established if the individual "before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent" or "functioned as a parent of the child no later than two years after the child’s birth" or "intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances." ("Functioned as a parent" is further defined in Section 2-115)

A separate provision, 2-120(e), reads that "a birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual." This provision will apply to couples in states that put the names of both mothers on the birth certificate because the biological mother is married to or in a civil union or domestic partnership with another woman.

Comments to these sections of the Uniform Probate Code make clear that the drafters fully intended the child of a lesbian couple to be considered the child of both of them for inheritance purposes. This was not an accident!

Thanks for University of California at Davis law professor Courtney Joslin for alerting me to these changes.