SECTION 2-121. CHILD BORN TO GESTATIONAL CARRIER. Uniform Probate Code
(a) [Definitions.] In this section:
(1) “Gestational agreement” means an enforceable or unenforceable agreement
for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection (e).
(2) “Gestational carrier” means a woman who is not an intended parent who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
(3) “Gestational child” means a child born to a gestational carrier under a gestational agreement.
(4) “Intended parent” means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
(b) [Court Order Adjudicating Parentage: Effect.] A parent-child relationship is
(a) [Definitions.] In this section:
(1) “Gestational agreement” means an enforceable or unenforceable agreement
for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection (e).
(2) “Gestational carrier” means a woman who is not an intended parent who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
(3) “Gestational child” means a child born to a gestational carrier under a gestational agreement.
(4) “Intended parent” means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
(b) [Court Order Adjudicating Parentage: Effect.] A parent-child relationship is
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conclusively established by a court order designating the parent or parents of a gestational child.
(c) [Gestational Carrier.] A parent-child relationship between a gestational child and the
child’s gestational carrier does not exist unless the gestational carrier is:
(1) designated as a parent of the child in a court order described in subsection (b);
or
(2) the child’s genetic mother and a parent-child relationship does not exist under this section with an individual other than the gestational carrier.
(d) [Parent-Child Relationship with Intended Parent or Parents.] In the absence of a court order under subsection (b), a parent-child relationship exists between a gestational child and an intended parent who:
child’s gestational carrier does not exist unless the gestational carrier is:
(1) designated as a parent of the child in a court order described in subsection (b);
or
(2) the child’s genetic mother and a parent-child relationship does not exist under this section with an individual other than the gestational carrier.
(d) [Parent-Child Relationship with Intended Parent or Parents.] In the absence of a court order under subsection (b), a parent-child relationship exists between a gestational child and an intended parent who:
birth; or
(1) functioned as a parent of the child no later than two years after the child’s
(2) died while the gestational carrier was pregnant if:
(A) there were two intended parents and the other intended parent
(2) died while the gestational carrier was pregnant if:
(A) there were two intended parents and the other intended parent
functioned as a parent of the child no later than two years after the child’s birth;
(B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or
the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or
(C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
(e) [Gestational Agreement after Death or Incapacity.] In the absence of a court order
(B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or
the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or
(C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
(e) [Gestational Agreement after Death or Incapacity.] In the absence of a court order
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under subsection (b), a parent-child relationship exists between a gestational child and an
individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a
child under a gestational agreement entered into after the individual’s death or incapacity if the
individual intended to be treated as the parent of the child. The individual’s intent may be shown
by:
(1) a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent; or
(2) other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
(f) [Presumption: Gestational Agreement after Spouse’s Death or Incapacity.] Except as otherwise provided in subsection (g), and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) if:
(1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
(2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and
(3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.
(g) [Subsection (f) Presumption Inapplicable.] The presumption under subsection (f) does not apply if there is:
(1) a court order under subsection (b); or
(2) a signed record that satisfies subsection (e)(1).
(1) a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent; or
(2) other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
(f) [Presumption: Gestational Agreement after Spouse’s Death or Incapacity.] Except as otherwise provided in subsection (g), and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) if:
(1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
(2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and
(3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.
(g) [Subsection (f) Presumption Inapplicable.] The presumption under subsection (f) does not apply if there is:
(1) a court order under subsection (b); or
(2) a signed record that satisfies subsection (e)(1).
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(h) [When Posthumously Conceived Gestational Child Treated as in Gestation.] If, under
this section, an individual is a parent of a gestational child who is conceived after the
individual’s death, the child is treated as in gestation at the individual’s death for purposes of
Section 2-104(a)(2) if the child is:
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
(i) [No Effect on Other Law.] This section does not affect law of this state other than this
[code] regarding the enforceability or validity of a gestational agreement.
Comment
Subsection (a): Definitions. Subsection (a) defines the following terms:
Gestational agreement. The definition of gestational agreement is based on the Comment to Article 8 of the Uniform Parentage Act, which states that the term “gestational carrier” “applies to both a woman who, through assisted reproduction, performs the gestational function without being genetically related to a child, and a woman who is both the gestational and genetic mother. The key is that an agreement has been made that the child is to be raised by the intended parents.” The Comment also points out that “The [practice in which the woman is both the gestational and genetic mother] has elicited disfavor in the ART community, which has concluded that the gestational carrier’s genetic link to the child too often creates additional emotional and psychological problems in enforcing a gestational agreement.”
Gestational carrier is defined as a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
Gestational child is defined as a child born to a gestational carrier under a gestational agreement.
Intended parent is defined as an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
Other Defined Terms. In addition to the terms defined in subsection (a), this section uses terms that are defined in Section 2-115.
Child of assisted reproduction is defined in Section 2-115 as a method of causing
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
(i) [No Effect on Other Law.] This section does not affect law of this state other than this
[code] regarding the enforceability or validity of a gestational agreement.
Comment
Subsection (a): Definitions. Subsection (a) defines the following terms:
Gestational agreement. The definition of gestational agreement is based on the Comment to Article 8 of the Uniform Parentage Act, which states that the term “gestational carrier” “applies to both a woman who, through assisted reproduction, performs the gestational function without being genetically related to a child, and a woman who is both the gestational and genetic mother. The key is that an agreement has been made that the child is to be raised by the intended parents.” The Comment also points out that “The [practice in which the woman is both the gestational and genetic mother] has elicited disfavor in the ART community, which has concluded that the gestational carrier’s genetic link to the child too often creates additional emotional and psychological problems in enforcing a gestational agreement.”
Gestational carrier is defined as a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
Gestational child is defined as a child born to a gestational carrier under a gestational agreement.
Intended parent is defined as an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
Other Defined Terms. In addition to the terms defined in subsection (a), this section uses terms that are defined in Section 2-115.
Child of assisted reproduction is defined in Section 2-115 as a method of causing
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pregnancy other than sexual intercourse.
Divorce is defined in Section 2-115 as including an annulment, dissolution, and declaration of invalidity of a marriage.
Functioned as a parent of the child is defined in Section 2-115 as behaving toward a child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as a regular member of that household. See also the Comment to Section 2-115 for additional explanation of the term.
Genetic mother is defined as the woman whose egg was fertilized by the sperm of the child’s genetic father.
Incapacity is defined in Section 2-115 as the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.
Relative is defined in Section 2-115 as a grandparent or a descendant of a grandparent.
Subsection (b): Court Order Adjudicating Parentage: Effect. A court order issued under Section 807 of the Uniform Parentage Act (UPA) would qualify as a court order adjudicating parentage for purposes of subsection (b). UPA Section 807 provides:
UPA Section 807. Parentage under Validated Gestational Agreement.
(a) Upon birth of a child to a gestational carrier, the intended parents shall file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Thereupon, the court shall issue an order:
(1) confirming that the intended parents are the parents of the child;
(2) if necessary, ordering that the child be surrendered to the intended parents; and
(3) directing the [agency maintaining birth records] to issue a birth certificate naming the intended parents as parents of the child.
(b) If the parentage of a child born to a gestational carrier is alleged not to be the result of assisted reproduction, the court shall order genetic testing to determine the parentage of the child.
(c) If the intended parents fail to file notice required under subsection (a), the gestational carrier or the appropriate state agency may file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Upon proof of a court order issued pursuant to Section 803 validating the gestational agreement, the court shall order the intended parents are the parents of the child and are financially responsible for the child.
Divorce is defined in Section 2-115 as including an annulment, dissolution, and declaration of invalidity of a marriage.
Functioned as a parent of the child is defined in Section 2-115 as behaving toward a child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as a regular member of that household. See also the Comment to Section 2-115 for additional explanation of the term.
Genetic mother is defined as the woman whose egg was fertilized by the sperm of the child’s genetic father.
Incapacity is defined in Section 2-115 as the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.
Relative is defined in Section 2-115 as a grandparent or a descendant of a grandparent.
Subsection (b): Court Order Adjudicating Parentage: Effect. A court order issued under Section 807 of the Uniform Parentage Act (UPA) would qualify as a court order adjudicating parentage for purposes of subsection (b). UPA Section 807 provides:
UPA Section 807. Parentage under Validated Gestational Agreement.
(a) Upon birth of a child to a gestational carrier, the intended parents shall file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Thereupon, the court shall issue an order:
(1) confirming that the intended parents are the parents of the child;
(2) if necessary, ordering that the child be surrendered to the intended parents; and
(3) directing the [agency maintaining birth records] to issue a birth certificate naming the intended parents as parents of the child.
(b) If the parentage of a child born to a gestational carrier is alleged not to be the result of assisted reproduction, the court shall order genetic testing to determine the parentage of the child.
(c) If the intended parents fail to file notice required under subsection (a), the gestational carrier or the appropriate state agency may file notice with the court that a child has been born to the gestational carrier within 300 days after assisted reproduction. Upon proof of a court order issued pursuant to Section 803 validating the gestational agreement, the court shall order the intended parents are the parents of the child and are financially responsible for the child.
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Subsection (c): Gestational Carrier. Under subsection (c), the only way that a parent-
child relationship exists between a gestational child and the child’s gestational carrier is if she is
(1) designated as a parent of the child in a court order described in subsection (b) or (2) the
child’s genetic mother and a parent-child relationship does not exist under this section with an
individual other than the gestational carrier.
Subsection (d): Parent-Child Relationship With Intended Parent or Parents.
Subsection (d) only applies in the absence of a court order under subsection (b). If there is no such court order, subsection (b) provides that a parent-child relationship exists between a gestational child and an intended parent who functioned as a parent of the child no later than two years after the child’s birth. A parent-child also exists between a gestational child and an intended parent if the intended parent died while the gestational carrier was pregnant, but only if (A) there were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child’s birth; (B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or (C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
Subsection (e): Gestational Agreement After Death or Incapacity. Subsection (e) only applies in the absence of a court order under subsection (b). If there is no such court order, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent may be shown by a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent or by other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
Subsections (f) and (g): Presumption: Gestational Agreement After Spouse’s Death or Incapacity. Subsection (f) and (g) are connected. Subsection (f) provides that unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) if (1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child, (2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and (3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.
Subsection (g) provides, however, that the presumption under subsection (f) does not apply if there is a court order under subsection (b) or a signed record that satisfies subsection (e)(1).
Subsection (h): When Posthumously Conceived Gestational Child is Treated as in Gestation. Subsection (h) provides that if, under this section, an individual is a parent of a
Subsection (d): Parent-Child Relationship With Intended Parent or Parents.
Subsection (d) only applies in the absence of a court order under subsection (b). If there is no such court order, subsection (b) provides that a parent-child relationship exists between a gestational child and an intended parent who functioned as a parent of the child no later than two years after the child’s birth. A parent-child also exists between a gestational child and an intended parent if the intended parent died while the gestational carrier was pregnant, but only if (A) there were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child’s birth; (B) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or (C) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
Subsection (e): Gestational Agreement After Death or Incapacity. Subsection (e) only applies in the absence of a court order under subsection (b). If there is no such court order, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent may be shown by a record signed by the individual which considering all the facts and circumstances evidences the individual’s intent or by other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
Subsections (f) and (g): Presumption: Gestational Agreement After Spouse’s Death or Incapacity. Subsection (f) and (g) are connected. Subsection (f) provides that unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subsection (e)(2) if (1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child, (2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and (3) the individual’s spouse or surviving spouse functioned as a parent of the child no later than two years after the child’s birth.
Subsection (g) provides, however, that the presumption under subsection (f) does not apply if there is a court order under subsection (b) or a signed record that satisfies subsection (e)(1).
Subsection (h): When Posthumously Conceived Gestational Child is Treated as in Gestation. Subsection (h) provides that if, under this section, an individual is a parent of a
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gestational child who is conceived after the individual’s death, the child is treated as in gestation
at the individual’s death for purposes of Section 2-104(a)(2) if the child is either (1) in utero not
later than 36 months after the individual’s death or (2) born not later than 45 months after the
individual’s death. Note also that Section 3-703 gives the decedent’s personal representative
authority to take account of the possibility of posthumous conception in the timing of the
distribution of part or all of the estate.
The 36-month period in subsection (g) is designed to allow a surviving spouse or partner a period of grieving, time to make up his or her mind about whether to go forward with assisted reproduction, and a reasonable allowance for unsuccessful attempts to achieve a pregnancy. The three-year period also coincides with Section 3-1006, under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the child is in utero will ordinarily be evidenced by medical records. In some cases, however, the procedure is not performed in a medical facility, and so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a typical period of pregnancy.
The 36-month period in subsection (g) is designed to allow a surviving spouse or partner a period of grieving, time to make up his or her mind about whether to go forward with assisted reproduction, and a reasonable allowance for unsuccessful attempts to achieve a pregnancy. The three-year period also coincides with Section 3-1006, under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the child is in utero will ordinarily be evidenced by medical records. In some cases, however, the procedure is not performed in a medical facility, and so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a typical period of pregnancy.
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