ESTABLISHMENT OF PATERNITY

CS 311P Assisted Reproduction and Gestational Agreements 

New 05/01/05 Revised 10/10/14 Training Completed 4/28/05

UCA 78B-15-102; 78B-15-201; 78B-15-701707; 78B-15-801 to 809

 

Definitions

 

1.                  Assisted Reproduction:   Per UCA 78B-15-102(3):

 

“"Assisted reproduction" means a method of causing pregnancy other than sexual intercourse. The term includes:

(a) intrauterine insemination;
(b) donation of eggs;
(c) donation of embryos;

(d) in vitro fertilization and transfer of embryos; and
(e) intracytoplasmic sperm injection.”

2.                  Donor:  Per UCA 78B-15-102(10):

 

“"Donor" means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:

(a) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife;
(b) a woman who gives birth to a child by means of assisted reproduction, except as otherwise provided in Part 8, Gestational Agreement; or            

(c) a parent under Part 7, Child of Assisted Reproduction, or an intended parent under Part 8, Gestational Agreement.”

3.                  Gestational Agreement:  Per UCA 78B-15-801(1):

 

“A prospective gestational mother, her husband if she is married, a donor or the donors, and the intended parents may enter into a written agreement providing that:

(a) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;
(b) the prospective gestational mother, her husband if she is married, and the donors relinquish all rights and duties as the parents of a child conceived through assisted reproduction; and
(c) the intended parents become the parents of the child.”

 

4.                  Gestational mother:  Per UCA 78B-15-102(14):

 

“"Gestational mother" means an adult woman who gives birth to a child under a gestational agreement.”

 

 

Assisted Reproduction

 

Per UCA 78B-15-702:

“A donor is not a parent of a child conceived by means of assisted reproduction.” 

 

NOTE:  A husband is not considered a “donor.”  See below.

 

Per UCA 78B-15-703:

“If a husband provides sperm for, or consents to, assisted reproduction by his wife as provided in Section 78B-15-704, he is the father of a resulting child born to his wife.” 

 

If a child is born as a result of assisted reproduction (conceived by a different means than sexual intercourse), there are several factors to consider in determining who may have a parent-child relationship and legal responsibility for support of the child.  Consider the following when determining what information must be provided by the mother in order for CSS to pursue child support or for the mother to be considered “cooperating” as a IV-A/Medicaid applicant.

 

1.                  The mother’s parent-child relationship in an assisted reproduction situation is established by having given birth to the child per UCA 78B-15-201:

           

(1) The mother-child relationship is established between a woman and a child by:
            (a) the woman's having given birth to the child, except as otherwise provided in Part 8, Gestational Agreement;…”

 

2.                  Husband provided the sperm for assisted reproduction:  If the mother indicates that her husband provided the sperm in an assisted reproduction procedure, and the husband meets the definition of a presumed father found in UCA 78B-15-204, you may establish a support order against the husband using the normal procedures for a presumed father.

 

If the husband disputes his parent-child relationship or responsibilities (despite the biological relationship) due to circumstances surrounding an assisted reproduction procedure (such as the timing of egg placement in comparison with separation or divorce), review the case with the AGO.  The statutes that govern assisted reproduction found in UCA 78B-15-701 through 707 also govern the reasons a husband may dispute his parent-child relationship.  On a case-by-case basis, it may be necessary to dismiss the administrative action and proceed judicially.  If you perform genetic testing at any time, you will need to choose between dyad and triad testing based on whether a donated egg was involved in the procedure. 

 

3.                  Husband consented to assisted reproduction:  If the mother indicates that a donor (known or unknown to the mother) provided the sperm in an assisted reproduction procedure, and her husband consented to the procedure, ask the mother to provide a statement from the physician, hospital, or institution that provided the insemination services.  The statement must indicate if the husband consented to the assisted reproduction procedure in a signed record.  It must also indicate the date that the procedure was performed in order to confirm that the procedure date coincides with the probable date of conception.  If possible, have the mother obtain a copy of the husband’s consent.

 

If the parent-child relationship/child support responsibility will be based on the husband’s consent to assisted reproduction and not biological paternity of the husband, refer the case to the AGO for judicial order establishment. 

 

If the mother cannot provide proof that the husband consented to assisted reproduction, review the case with the AGO.  The AGO will consider the circumstances on a case-by-case basis and determine if enough evidence is available to pursue the husband for child support judicially according to the rest of the statutes governing assisted reproduction found in UCA 78B-15-701 through 707.

 

4.                  Mother not married at the time of assisted reproduction:  If the mother was not married at the time that an assisted reproduction procedure occurred, have the mother complete the “Paternity Questionnaire” and determine if there are any other possible consorts or if there is a presumed father.  The mother must also provide a statement from the physician, hospital, or institution that provided the insemination services.  The letter must specify the date that the procedure was performed in order to confirm that the insemination date coincides with the probable date of conception.

 

If the mother claims to have conceived the child by an unknown donor through assisted reproduction and the specimen was purchased through the internet and introduced at home, the mother must provide a receipt of purchase for the specimen.  Determine if the specimen was purchased within a timeframe reasonably close to the date of conception.

 

Do not attempt to establish a legal parent-child relationship/paternity against the donor in an assisted reproduction if documentation can be provided that supports an assisted reproduction arrangement.

 

 

Gestational Agreement

 

A gestational agreement (formerly known as a surrogacy agreement) involves several documents as outlined in the statutes below:

 

UCA 78B-15-801(1) states:

“A prospective gestational mother, her husband if she is married, a donor or the donors, and the intended parents may enter into a written agreement providing that:

(a) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;
(b) the prospective gestational mother, her husband if she is married, and the donors relinquish all rights and duties as the parents of a child conceived through assisted reproduction; and
(c) the intended parents become the parents of the child.”

 

UCA 78B-15-802(1) states:

“The intended parents and the prospective gestational mother may file a petition in the district tribunal to validate a gestational agreement.”

UCA 78B-15-807(1) states:

“Upon birth of a child to a gestational mother, the intended parents shall file notice with the tribunal that a child has been born to the gestational mother within 300 days after assisted reproduction. Thereupon, the tribunal shall issue an order:

(a) confirming that the intended parents are the parents of the child;

(b) if necessary, ordering that the child be surrendered to the intended parents; and
(c) directing the Office of Vital Records to issue a birth certificate naming the intended parents as parents of the child.”

UCA 78B-15-809 states:

“(1) A gestational agreement, whether in a record or not, which is not validated by a tribunal is not enforceable.
(2) If a birth results under a gestational agreement that is not judicially validated as provided in this part, the parent-child relationship is determined as provided in Part 2, Parent-child Relationship.
(3) The individuals who are parties to a nonvalidated gestational agreement as intended parents may be held liable for support of the resulting child, even if the agreement is otherwise unenforceable. The liability under this Subsection (3) includes assessing all expenses and fees as provided in Section 78B-15-622.”

If a child is born as a result of a gestational agreement, there are several factors to consider in determining who may have a parent-child relationship and legal responsibility for support of the child.  Request the following information from the recipient/applicant in order for CSS to pursue child support or for the applicant/recipient to be considered “cooperating” as a IV-A/Medicaid applicant:

 

1.                  A copy of the gestational agreement;

2.                  A copy of the tribunal’s validation of the gestational agreement (if this step occurred since this is not a required step in the gestational agreement process);

3.                  A copy of the tribunal’s order confirming that the intended parents are the parents of the child issued after the child’s birth.

 

Because the parent-child relationship for both the mother and the father in a gestational agreement situation is based solely on documents and court orders, if you receive a copy of the gestational agreement you should dismiss the Notice of Agency Action and refer the case to the AGO for judicial establishment of a support order.