Friday, May 20, 2011

Washington state enacts comprehensive parentage statute

Earlier this month, Washington state enacted a version of the Uniform Parentage Act that will recognize parentage in numerous family situations. The legislation is effective on July 22, 2011 and applies to all causes of actions filed after that date. Proposed legislation on surrogacy was withdrawn from the bill and is therefore not covered in this statute.

The legislation explicitly encompasses registered domestic partners in all the provisions that are applicable to spouses. Washington bans marriage by same-sex couples but has a comprehensive domestic partnership status. Of equal importance, critical provisions on assisted reproduction and parentage through holding a child out as one's own do not depend on the parents being married or registered as domestic partners. The bill explicitly states that "a child born to parents who are not married to each other or in a domestic partnership with each other has the same rights under the law as a child born to parents who are married to each other or who are in a domestic partnership with each other."

In situations of donor insemination, the statute replaces the previous provision that applied only to husbands and wives with a gender-neutral, marital-status neutral provision that “a person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.” Consent must be in writing but failure to put the consent in writing does not preclude a finding of parentage “if the persons resided together in the same household with the child and openly held out the child as their own.” The statute also provides that the semen donor “is not a parent unless otherwise agreed in a signed record by the donor and the person or persons intending to be parents…” All of these provisions closely track the legislation enacted in the District of Columbia two years ago.

The statute also creates two important presumptions. (The provisions above on assisted reproduction do not create a presumption of parentage; they create parentage.) Persons in a domestic partnership are both presumed the parents of a child born to one of them. And "a person is presumed to be the parent of a child if, for the first two years of the child's life, the person resided in the same household with the child and openly held out the child as his or her own." A proceeding to adjudicate parentage when a child has a presumed parent must be brought within four years of a child's birth unless the presumed parent did not live with (or have sexual intercourse with)the other parent during the probable time of conception and never held the child out as his/her own (in which case it can be brought at any time).

It is a real thrill to me to see so many provisions of the DC parentage statute adapted to another state. Washington already recognized "de facto" parents under its case law. That status will remain important in instances when this parentage statute does not apply, such as an adopted child. But because this statute applies to any court action filed after its effective date, some nonbio moms who would previously have been "de facto" parents will now be parents under this statute. To the extent that the "de facto" parent status had some ambiguity (like whether it conferred the right to inherit by intestate succession) the new statute assures the existence of a parent-child relationship for all purposes.

Congratulations to the advocates who worked tirelessly on this legislation, especially Seattle lawyer Pat Novotny.

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