Washington's 2002 Parentage Act: a Step Backward for the Rights of Nonmarital Children

• Jurisdiction: Washington,United States
• Citation: Vol. 30 No. 01
• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 1FALL 2006

COMMENTS

Washington's 2002 Parentage Act: A Step Backward for the Rights of Nonmarital Children

Stacey Scriven Bernstein(fn*)

I. Introduction

Michael Kepi had a secret family.(fn1) For nearly ten years, Kepi carried on an extramarital affair with his former coworker, Teresa Brock.(fn2) A few years into their relationship, Kepi and Brock began actively trying to conceive a child together.(fn3) When sexual intercourse failed to result in pregnancy, Brock enlisted the help of doctors and fertility clinics in Ta-coma and Seattle.(fn4) Several artificial insemination procedures(fn5) using sperm provided by Kepi were unsuccessful.(fn6) Finally, the couple was able to conceive via in vitro fertilization(fn7) using preembryos(fn8) created from Kepi's sperm and Brock's eggs.(fn9)

In 1998, Brock gave birth to their first son, John.(fn10) Kepi was the first person other than the hospital staff to hold John.(fn11) Kepi gave Brock flowers and cards, which included messages of "It's a Boy-Finally!" and "Bunches of love to you and our bundle of joy."(fn12) After the birth, Kepi signed a paternity affidavit.(fn13) He referred to himself as John's "Dad."(fn14) He visited John every week, took Brock and John on vacation, participated in holiday events, and attended John's birthday parties.(fn15) He also paid monthly child support payments and took out a $100,000 life insurance policy, which identified John as his son and primary beneficiary, and which identified Brock as his significant other and contingent beneficiary.(fn16) In 2002, Brock gave birth to Kepi's second son, David, who was also conceived using in vitro fertilization.(fn17)

A few months after David's birth, however, Kepi's wife found out about his "other family."(fn18) Suddenly, Kepi cut off all financial and emotional support to John and David and adamantly denied that he was their father.(fn19) Abandoned by Kepi, Brock struggled financially to support the children by herself.(fn20) In 2002, she filed a petition to establish Kepi's parentage of John and David and requested that Kepi be required to resume child support payments.(fn21)

Following a protracted paternity battle, the Washington Supreme Court recently held that under Washington's former Parentage Act (the former WPA) (fn22) Kepi was the legal father(fn23) of John and David and had a financial duty to support them.(fn24) Ironically, if Brock had filed her petition to establish paternity just four months later-after Washington's current Uniform Parentage Act (the WPA) went into effect(fn25)-the court could not have easily arrived at this same conclusion, solely because Brock and Kepi were not a married couple.(fn26)

The difficulty in reaching the same holding under the WPA is one of several indications that the Act is a step backward for the rights of nonmarital children.(fn27) Although the WPA proclaims that there is "[n]o discrimination based on marital status,"(fn28) the Act treats nonmarital children disfavorably as compared to marital children.(fn29) This differential treatment is most apparent in Washington's statutes governing the parentage of children conceived using assisted reproductive technology (ART).(fn30) For example, under the current WPA, Kepi could have walked away from his second family without ever paying a dime in child support.(fn31) This Comment argues that Washington should amend the WPA to protect the rights of nonmarital ART children.(fn32)

Although an analysis of the legal issues surrounding the determination of parentage for nonmarital ART children in Washington might appear to be merely academic, surprising statistics about the number of nonmarital births and the rapidly increasing usage of ART in the United States should caution one to think twice before dismissing the legal needs of nonmarital ART children. Approximately one-third of all children born in the U.S. each year are born to unmarried parents.(fn33) Census 2000 revealed that over ten percent of all coupled households in Washington are unmarried-partner households and close to forty percent of these households have children.(fn34) In addition, since ART first came into widespread use in the 1950's,(fn35) its popularity and usage has skyrocketed.(fn36) There are over 400 ART clinics in the U.S.,(fn37) nine of which were located in Washington as of 2003.(fn38) All of these Washington fertility clinics offer services to unmarried women.(fn39) Nationally, more than 1.2 million women have infertility-related medical appointments each year,(fn40) and there are at least one hundred thousand ART children born every year.(fn41) Because the number of nonmarital ART children born each year will only increase,(fn42) Washington must provide clear, practical, and fair laws governing the parentage of these children.

Nearly thirty years ago, a Washington commentator hailed the enactment of the former WPA as a step forward for the rights of nonmarital children:Washington's adoption of the Uniform Parentage Act is a significant step forward in the long struggle toward equal protection for illegitimate children. Attaining legal rights equal to those of children born of legally married parents is but a step in the direction of society's recognition of illegitimate children as just children. And the erasure of the distinction between legitimate and illegitimate children should aid society in its acceptance of the equal status of all children.(fn43)

Unfortunately, the revised WPA has not stayed true to its original purpose. Although the former WPA was less than perfect in its treatment of nonmarital ART children,(fn44) the current WPA is a giant step backward for the rights of nonmarital children. The WPA removed existing protections for nonmarital children and bars the biological father of a nonmarital ART child from being established as the child's legal father under Washington's parentage statutes.(fn45) The WPA should be amended because, at the very least, these provisions constitute bad public policy,(fn46) and, at the worst, they are unconstitutional.(fn47)

The purpose of this Comment is to encourage the Washington legislature to amend the WPA and to suggest potential avenues for challenging the Act if it is not amended. Part II of this Comment provides the historical and legal context necessary to analyze and critique the WPA. Part III discusses the WPA's serious shortcomings and explores one potential constitutional challenge to the Act. Part IV contains recommendations for amending the WPA.

II. Historical and Legal Context

This Part begins with an overview of the various Parentage Acts that are discussed in this Comment. It continues with a brief description of the legal status of nonmarital children prior to the enactment of the former WPA. Finally, in order to provide a baseline for the analysis and critique of the current WPA, this Part explains the history and purpose behind the former WPA, discusses several of the former WPA's key provisions concerning the parentage of nonmarital children, and uses the recent Washington Supreme Court case, In re J.M.K. and D.R.K.,(fn48)to illustrate the imperfection of the former WPA's artificial insemination statute.

A. An Introduction to the Uniform and Washington Parentage Acts

The former WPA was enacted in 1976.(fn49) The Act was based on the official text of the Uniform Parentage Act promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL)(fn50) in 1973 (UPA (1973)).(fn51) In 2000, NCCUSL promulgated a revised Uniform Parentage Act (UPA (2000)) and withdrew UPA (1973).(fn52) Due to criticism of UPA (2000), NCCUSL promulgated a newly amended Uniform Parentage Act in 2002 (UPA (2002)).(fn53) The current WPA is based on the official text of UPA (2000) and does not contain any of the promulgated amendments of UPA (2002).(fn54) Washington also chose to retain previously existing surrogacy laws(fn55) and did not enact UPA (2000) Article 8, Gestational Agreement.(fn56)

When interpreting Washington's Parentage Acts, courts often look for guidance to the official comments of the Uniform Parentage Acts upon which the Washington Acts were based.(fn57) For this reason, the former WPA is discussed in conjunction with UPA (1973), and the current WPA is discussed in conjunction with UPA (2000). Textual deviations between the Washington and Uniform Acts are specifically noted only where relevant.

B. The Legal Status of Nonmarital Children Prior to the Former WPAThe bastard, like the prostitute, thief, and beggar, belongs to that motley crowd of disreputable social types which society has generally resented, always endured. He is a living symbol of social irregularity, an undeniable evidence of contramoral forces; in short, a problem-a problem as old and unsolved as human existence itself.(fn58)

As evident from the quotation above, the historical treatment of nonmarital children was quite harsh. Under the English common law, a nonmarital child was fdlius nullius ("no one's son") and had few rights with respect to his or her parents.(fn59) Although American common law followed the English tradition with respect to the nonmarital child's father,(fn60) it did impose a duty of support on the nonmarital child's mother.

Washington has imposed the duty of support on both of the nonmarital child's biological parents(fn62) since Washington...