Memo regarding proposed ART legislation entitled “Rights of Children Conceived by
Assisted Reproduction”
The Modern Family Committee of the Family Law Section has spent countless hours
reviewing both the proposed ART Bill and numerous source materials including but not limited
to: the Uniform Probate Code (UPC), the Uniform Parentage Act (UPA) (both 2002 and 2017
versions); numerous memos from various persons and organizations including the National
Center for Lesbian Rights (NCLR) and the American Academy of Reproductive Medicine
(ASRM) on ART law topics and revisions to the UPA; and statutes from other states which
articulate the most coherent and comprehensive parentage provisions (including Maine, Nevada,
Illinois, and California). Notably, we are not aware of any state that enacted ART law legislation
which was separate and apart from all other parentage and paternity provisions. In all of the
states named above, statutes related to the parentage of children born of ART were seamlessly
interwoven within greater parentage acts such that parentage of all children, regardless of how
they were born or conceived, was addressed in a single coherent package.
The Modern Family Committee applauds and appreciates the effort that went into the
drafting of the proposed ART Bill. It is obvious that Bill Drew and the other members of the
committee that drafted the bill spent many hours on this important topic. This is especially
impressive in that many of the topics contained in the bill are not traditional estate planning
topics, and were likely outside the committee’s regular practice area, such that synthesizing the
research was likely especially challenging. So the purpose of this memo is to recognize the
considerable time and effort that clearly went into the drafting of this bill, and also to share the
concerns of the Modern Family Committee as they relate to the current draft and the current plan
to present this draft to the North Carolina legislature in the upcoming 2017 long session. The
concerns fit into the following three categories:
1) Substantive concerns about the current content of the ART Bill;
2) Concerns regarding the complexity of assisted reproduction technology in general, and further
concerns that the current draft of the ART Bill will not integrate effectively and cannot co-exist
with current North Carolina General Statutes as they relate to other family law concepts like
divorce (the definition of the divorce in the proposed ART Bill conflicts with the definition of
divorce in Chapter 50), paternity, naming, custody, adoption, legitimation, and birth certificates;
and
3) Concerns that the current political climate in North Carolina would make the introduction of a
bill that clearly encompasses a number of “hot button” issues like same sex families and
reproductive choices imprudent at this time.
Please find additional comments about each concern below.
Substantive Matters
The proposed ART Bill appears to be modeled, in significant part, upon the Uniform Probate
Code (“UPC”). Although promulgated in 1969, to date only seventeen (17) states have enacted
any portion of the Uniform Probate Code. North Carolina is not one of those states. North
Carolina has not enacted any portion of the UPC, though it is our understanding that several
North Carolina statutes related to wills, probate, trusts, and succession are modelled after the
UPC.
Of the seventeen (17) states which have enacted portions of the UPC, only two (2) of those states
(Colorado and North Dakota) have enacted portions of Article II, Sub-Part 2 (“Parent-Child
Relationship”) which includes provisions related to assisted reproduction and which were drafted
eight years ago.
Rejection of the UPC’s approach to legislating ART has not stopped states from enacting
legislation concerning assisted reproduction. Currently, twenty-five (25) states have some form
of legislation regarding assisted reproduction, but it is telling that only two of said states have
chosen to incorporate any portion of the UPC.
To the extent that a number of the definitions in the bill were borrowed from the 2000/2002
version of the Uniform Parentage Act, said Act is currently being reviewed and updated to a
2017 version given the notable changes that have taken place in the last 15 years, including but
not limited to:
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National recognition of same sex marriage and resulting need for gender neutrality in
parentage statutes
Revision and refinement of definitions and terms of art (the 2017 version of the Uniform
Parentage Act overhauls and updates many of the definitions that were borrowed for the
ART Bill)
o An intentional departure from using the term “mother” as part of any definition of
a surrogate (so avoidance of terms like “gestational mother” or “birth mother” in
favor of “woman who gives birth to a child” and “gestational carrier”)
 Notably, the definitions of “genetic mother” and “genetic father”
contained in the current ART Bill are potentially misleading and overly
broad in that they could arguably also apply to egg donors and sperm
donors respectively
o An intentional replacement of terms like “mother,” “father,” “maternity” and
“paternity” with more inclusive and gender neutral terms like “parent” and
“parentage”
o An intentional departure from terms like “gestational child” or “child of assisted
reproduction” to avoid the creation of separate classes of children (those of ART
and those not) which could result in due process and equal protection concerns
o An intentional departure from terms like “legitimate” and “natural” to describe
children conceived through sexual intercourse since that could leave children not
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conceived by sexual intercourse with labels like “illegitimate” and “unnatural,”
both of which have negative connotations
Advances in science creating new options for family expansion such as:
o “Ovum sharing” where one female partner carries the genetic child of the other
female partner
o “Embryo donation” – also, unfortunately, called “embryo adoption” in which
neither intended parent nor the woman who gives birth to the child is genetically
related to the child
Concern about the definition of the terms “gestational carrier” and “gestational child”
currently contained in the ART Bill since both definitions indicate that gestational carrier
is a woman that “conceives” a gestational child, and that a gestational child is a child that
was “conceived” by a gestational carrier. As a medical, scientific, and practical matter,
gestational carriers do not “conceive” children. Gestational Carriers “carry” children or
“gestate” children. “Conception” occurs upon the union of gametes.
Complexity within the ART universe
Additionally, we need to ensure that any ART/Parentage statute applies to each of the wide
variety of scenarios that fall under the ART umbrella. We would hope to undergo a thorough
examination of any proposed statute to ensure that we have considered and decided upon an
approach to the following topics (this is not an exhaustive list). We cannot conclude, at this
point, that the current draft of the ART bill adequately addresses the topics below:

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1
Ongoing complexities with application of the marital presumption
o Full gender neutrality would require that the male spouse of the biological father
is also presumed to be a legal parent. This could result in competing presumptions
if the woman who gives birth to the child and her spouse are also presumed
parents
 One state—Washington State—thus far has enacted full gender neutrality
in the marital presumption.1
De facto parentage in ART law – desirability of recognizing and extending parental rights
in people who function as parents, but are not connected to the child through biology or
marriage
o Ensuring that de facto parentage in ART law statute is compatible with all other
parentage statutes and case law in NC
The revised Washington marital presumptions are fully gender neutral; that is, they establish a presumption of parentage in
any spouse—male of female—of any parent—male or female. Specifically, WASH. REV. CODE ANN. § 26-26-116 provides that “a
person is presumed to be the parent of a child if: The person and the mother or father of the child are married to each other …
and the child is born during the marriage.” Thus, under the Washington statute, a wife is presumed to be the legal parent of the
biological child of her husband conceived in an extramarital relationship and born to a woman not his wife
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o Examining the “holding out” clause to ensure that the “holding out” period begins
when the child is very young, and continues for a sufficient period of time2
 Under the current draft, a person could presumably enter the child’s life
when the child is 1 year and 11 months old, function and hold herself out
as a parent for the next 30 days, and then petition the court for parentage
Dealing with competing presumptions of parentage/Ensuring the availability of
procedures for children with no legal parents
o The introduction of de facto parentage or parentage by function could allow for
the possibility of competing presumptions of parentage and/or the finding that a
child has more than two parents
o Removing the assumption that neither gamete contributors nor the woman who
birthed the child are necessarily legal parents could potentially result in a child
having no legal parents (for example - if an embryo is donated anonymously to a
single intended father and is gestated by a gestational carrier, during which
gestation, the intended father dies, the child could be born with no known genetic
or intended parents) 3
Separating parentage from consanguinity allows for possibility of more than two parents
o Courts in a number of states have concluded (or are permitted via express
statutory provision to conclude) that a particular child had two legal parents plus a
parent in equity. These jurisdictions include: D.C., Minnesota, New Jersey, New
York, North Dakota, Pennsylvania, and Washington
o The following jurisdictions have actually found that a child can have more than
two legal parents: California, Delaware, D.C., Louisiana, and Maine
o We need to examine whether this is the right course of action for North Carolina
Accounting for embryo donation such that neither intended parent is genetically related to
the child
o Example: If embryos are donated by known embryo donors and gestated by a
gestational carrier, then the intended parents are parents solely by intent (they are
neither genetic parents nor birth parents). Additionally, if intended parents intend
to raise the child of known gamete donors, should this situation be governed the
same or different than an adoption?
Examination of whether the inability to conceive/carry a child is or should be a
requirement of the intended parents or if it is acceptable for persons who otherwise have
2The
National Center for Lesbian Rights recommends that the requirement be that the holding out period must start prior to
the child’s first birthday, and must last for at least two years
3
UPA – 2017: A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated parent
other than the woman who gave birth may be commenced at any time, Such a proceeding may be commenced even after:(1)
the child becomes an adult, but only if the child initiates the proceeding
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no fertility issues to simply choose not to carry and engage a gestational carrier for
career-related or other personal reasons
o If it should be a requirement that the intended parents are unable to conceive and
deliver a child without assistance, does this preclude gay and lesbian people who
have normal fertility, but cannot conceive or carry because they are in a same sex
relationship?
Gamete banks and “anonymous” donors
o Record-keeping responsibilities and the rights of children to access medical and
identifying information about donors from gamete banks4
o Explicit right to withdraw non-disclosure affidavits, but not the reverse5
o What occurs when a gamete bank goes out of business (a concern about the
current UPA as stated by a memo from the American Society of Reproductive
Medicine (which promulgates the relevant guidelines for reproductive
endocrinologists facilitating assisted reproduction))
o The rights of known donors who do not sign donor agreements, particularly as
their rights compare to any presumptive rights of the spouse of the woman who
gives birth to the child
Concerns about NC case law as it currently relates to paramount status of biological
parents when only one of the intended parents is genetically related to the child
(particularly if the intended parents separate during the pregnancy)
Traditional surrogacy, desirability of it in general
o A number of states with well-drafted and comprehensive ART statutes (like
Nevada) prohibit traditional surrogacy
o The fact that traditional surrogacy often takes place without a legal contract, and
without the safeguards of a psychologist or physician
o The need to examine and contrast any ART statutes regarding traditional
surrogacy with our current adoption statutes.
The need for a thorough examination of applicability of any ART statute to all of the
possible ART scenarios as listed below (*GS is “gestational surrogate;” TS is “traditional
surrogate;” SS is “same sex”)
Married Couples (both opposite sex and same sex)
Wife gives birth, her egg, known sperm donor
Wife gives birth, her egg, unknown sperm donor
Wife gives birth, spouse’s egg, known sperm donor (same-sex)
4
UPA, 2017 requires that gamete banks ask donors if they will agree to allow a child to learn identifying information about
them upon turning 18
5
(UPA, 2017)
Wife gives birth, spouse’s egg, unknown sperm donor (SS)
Wife gives birth, known egg donor, known sperm donor
Wife gives birth, unknown egg donor, known sperm donor
Wife gives birth, unknown egg donor, unknown sperm donor
Traditional surrogate (TS), spouse’s sperm
TS, unknown sperm donor
Gestational surrogate (GS), wife’s egg, husband’s sperm
GS, wife’s egg, known donor’s sperm
GS, wife’s egg, unknown sperm donor
GS, known egg donor, husband’s sperm
GS, unknown egg donor, husband’s sperm
GS, known or unknown egg donor, known or unknown sperm donor
Single woman
NON-ART: Woman has sexual intercourse with known or unknown male
Woman gives birth, not her egg, known sperm donor
Woman gives birth, not her egg, unknown sperm donor
TS gives birth, known or unknown sperm donor
GS gives birth, single woman’s egg, known or unknown sperm donor
GS gives birth, known or unknown egg donor, known or unknown sperm donor
Single man
TS gives birth, man’s sperm
TS gives birth, known or unknown sperm donor
GS gives birth, known or unknown egg donor, man’s sperm
GS gives birth, known or unknown egg donor, known or unknown sperm donor
Complexity as it relates to separating an ART statute from a more comprehensive
statutory package addressing parentage of all children
Traditional parentage is founded upon ancient customs and expectations mostly relating
to assumptions about biological kinship, and as societies have evolved, these customs have been
supplemented with legal presumptions (e.g., those relating to paternity), legal/social relationships
(e.g., marriage), and statutes and judicial determinations (e.g., adoption, legitimation, termination
of parental rights)—all of this reinforced in some cases in modern times by scientific validation
of the biological relationship between children and their putative parents (notably, DNA testing).
Assisted reproductive technology, however, breaks with this tradition because the technology in
ART disrupts the biological or “natural” processes upon which the traditional assumptions about
biological kinship were based. In responding to ART, various attempts have been made to
redefine “parentage,” primarily based upon the “intentions” of the “intended parents.” Various
iterations of this “intended parent” model are currently under consideration around the world, but
perhaps the most common version involves a person who makes a declaration of an intention to
be the parent of the child who is produced by means of ART. Variants of this basic doctrine
include, but are not limited to: (1) a requirement of an express declaration of intention prior to
conception (or sometime prior to birth); (2) a determination of intention based upon conduct or
“facts and circumstances”; (3) a requirement of some sort of “writing” as evidence of a declared
intention; (4) declaration of intention controlled by private contract; and/or (5) judicial sanction
of the declared intention to form a parent-child relationship.
Well-meaning efforts are underway to devise a legal system that provides legal sanction to the
“intentions” of the parties involved in the ART process, sometimes imposing procedures and
presumptions in order to clarify “gray areas.” In theory, these attempts would normalize
parentage relationships that, under current law, are either completely undefined or by which
current law would establish a parentage relationship at odds with the “intentions” of the parties.
However, any such attempts must carefully consider the impact that an ART parentage statute
will have on preexisting traditional parentage law.
At least one major problem with proposed ART-specific parentage laws is the stark fact that the
traditional system and the ART system are fundamentally irreconcilable in concept. Instituting
two side-by-side systems of “parentage”—separate and incompatible from each other—raises the
risk that the law will create separate and unequal classes of persons. Therefore, this suggests that
one system must subsume the other, or that the two systems must somehow be blended
harmoniously. Otherwise, ART parents will have access to the ART system of parentage
because of their access to technology, whereas parents who—by choice or necessity—do not
access ART, will not have access to the ART system of parentage law. Unless the statutory
scheme carefully integrates ART innovations with traditional parentage law, inequities will
inevitably result.
For example, a person who does not use ART cannot by declaration and agreement simply
“arrange” to become the legal parent of someone’s naturally conceived child; such a person is
deprived of a legal right that is available to an ART parent. Or, alternatively, if special rules
apply to ART parents and children, then is there a risk that such relationships will be deemed
“less than” or privileged (or perhaps both)? Or, if we expand the ART parentage statute to
include all persons, without regard to whether ART is used, then will that require substantial
adjustments to such statutes as the adoption statutes?
Numerous examples of such conflicts are present, and the ART statute must not embody
injustice at its inception.
Finally, any ART statute must avoid casually importing notions relating to the legal status of
“unborn children.” We must exercise care and deliberation to assure that there is no
unintentional alteration of our existing law in this regard.
Politics
Finally, the Modern Family Committee members strongly believe that in light of past legislative
history regarding the issue of surrogacy and the current political climate at the NC General
Assembly, this is not the time to introduce any bill related to surrogacy.
Past Legislative History:
- Possible surrogacy legislation was considered in the late ‘80s. After extensive review
and hearings, the surrogacy subcommittee declined to propose any legislation due to the
controversial nature of the issue. (And this was when Democrats controlled the legislature and
the Governor was a Democrat.)
- Around 2010, a comprehensive surrogacy bill was introduced. After it was introduced
it was amended to exclude same sex couples and the bill was eventually killed after attempts
were made to further amend the bill to prohibit surrogates from having abortions.
- Just this year, a technical bill was introduced by the General Statutes Commission
which would have simply amended our tenancy by the entirety statute to bring it in line with the
recent Obergerfell case validating same sex marriages. The legislature chose not to act on even
this simple technical bill.
- The actions of the legislature in 2016, including the passage of HB2 earlier this year and
their actions during last week’s special session which made tremendous changes to all three
branches of government without advance notice to all legislators and done within approximately
2-3 days, should give pause to anyone considering introducing legislation next year. (The makeup of the 2017 legislature will not be that much different than the 2016 legislature and the GOP
members will continue to have a super-majority in both houses.)
Lessons from Legislative History:
These past legislative efforts demonstrate that the issues of surrogacy, abortion and same
sex relationships are all tied together and will all be brought up with the introduction of any
assisted reproduction bill. It is fair to say that attempts will no doubt be made to amend any such
legislation to possibly prohibit assisted reproduction and surrogacy arrangements, severely limit
abortions, and deny same sex couples the same rights that might be accorded different sex
couples.
Our committee had hoped we might “test the waters” of the legislature with the tenancy
by the entirety bill and an amended version of Chapter 49A which was also proposed by the
General Statutes Commission. However, the Commission elected not to introduce the latter bill
because of concerns about issues that might be raised, and the former bill never went anywhere.
Thus we would be going to the legislature without any concrete sense of what they might do.
Most importantly, those of us who represent clients using assisted reproduction
technology are extremely concerned for our clients and their children. We would rather continue
without the possible clarification of our laws which this legislation attempts to address then end
up with new laws that at best might restrict our clients’ options in their creating families, and at
worst, deny them these options and even perhaps unconstitutionally infringe upon their rights to
create families, control reproductive choices, and have all marriages and families be treated
equally.
Conclusion
Again, the Modern Family Committee wishes to stress our acknowledgement and appreciation of
the work of Bill Drew and the members of his committee within the estate planning section.
They accurately perceived the importance of this issue, and were willing to put forth great effort
to advance the evolution of North Carolina law. We are in total agreement with the estate
planning section that helping the law keep pace with scientific and social advancement, as well
as recognizing the ever-changing ways that families are constructed and defined is perhaps one
of the most critical tasks before us. However, we also believe that our efforts to clarify the rights
of children of ART cannot be undertaken in a vacuum, and should not be separated from all other
relevant parentage statutes or from the political context of the current time.
Therefore, the Modern Family Committee, which consists, quite literally, of all of the top ART
law practitioners in North Carolina as well as experienced family law attorneys, after exhaustive
discussion and research, has concluded that the following is the most appropriate course of
action at this time given the above stated concerns.
1) Refrain from presenting any ART Bill to the current North Carolina legislature at this
time. Continue to “take the temperature” of the political climate as it changes over the
next two years, and in the meantime, work in concert with all other relevant
committees within the Family Law Section who are impacted by changes in parentage
laws (custody, child support, parents’ rights, children’s rights, adoption, etc) as well
as the Estate Planning Committee to complete a comprehensive parentage bill which
incorporates ART provisions (see attached Exhibit C as the current working draft of
such a project) such that it is available to be presented when the composition of the
legislature is more favorable to the desired outcome;
2) If it is determined that, despite the concerns of the Modern Family Committee and the
Family Law Section, an ART Bill must be presented at this time, consider presenting
what we have composed (attached Exhibit B), which, in our opinion addresses
virtually all of the issues related to children of ART as they relate to estate planning
and succession, but is 1) more accurate and updated; 2) more concise, 3) more
directly affecting estate-related concepts, 4) more harmonious with current NC family
law statutes, and 5) less obviously related to politically sensitive subject matter; or
3) Finally, if neither option 1 nor option 2 are accepted, then substitute the Modern
Family Committee’s version of the ART Bill (Exhibit C) for the current ART Bill as
this draft contains the most updated language and definitions, is modelled after the
UPA and functional statutes from other states rather than the UPC, which is not a
standard act from which to extract parentage provisions, and which could likely work
more harmoniously with the other parentage-related domestic statutes currently in
existence (though we stand by our position that a number of other current statutes will
need to be amended so as not to conflict with any ART Bill.
Thank you for your consideration.
Exhibit B
CONCISE PROPOSED BILL
AMENDING CHAPTERS 49A, 29A and 130A
REGARDING ASSISTED REPRODUCTION TECHNOLOGY
SECTION 1. Chapter 49A of the General Statutes reads as amended:
§49A-1. Status of child born as a result of assisted reproduction technology.
(a) Any child or children born as the result of assisted reproduction technology shall be
considered at law in all respects the same as a naturally conceived legitimate child of the
married couple requesting and consenting in writing to the use of such technique.
(b) Any child for whom parentage has been determined under this Article 1of G.S. 49A
shall be considered for all purposes at law, including without limitation G.S. 130A-101, in all
respects the same as a naturally conceived legitimate child of the person or persons with whom
such parentage has been established, and any such person for whom parentage is established
with a child under this Article 1 of G.S. 49A shall likewise be considered for all such purposes at
law, including without limitation G.S. 130A-101, in all respects the natural and legitimate parent
of such child.
SECTION 2. Chapter 29 of the General Statutes is amended by adding between Article 4
and Article 5 thereof a new Article 4A which reads:
CHILDREN CONCEIVED BY ASSISTED REPRODUCTION
§ 29-17A. Succession by, through, and from children conceived by assisted reproduction.
(a) A child conceived by assisted reproduction is a child for whom a parentage has been
established in accordance with Article 1 of G.S. 49-A, or the applicable law of any other
jurisdiction. Each parent for whom parentage has been established with a child under Article 1
of G.S. 49A, or the applicable law of any other jurisdiction, is a parent of such child for all
purposes.
(b) A child conceived by assisted reproduction, and the heirs of such child, is entitled to
take by succession any property by, through and from such child’s parent or parents established
under Article 1 of G.S. 49A, or the applicable law of any other jurisdiction, the same as any
child conceived without assisted reproduction to such child’s said parent or parents
(c) An individual for whom parentage has been established under Article 1 of G.S. 49A,
or the applicable law of any other jurisdiction, with a child conceived by assisted reproduction,
and the heirs of such individual, is entitled to take by succession any property, by, through and
from such child the same as if such child was conceived without assisted reproduction to such
individual for whom parentage has been established.
§29-17B. Written Instruments. In any deed, grant, will, trust agreement or other written
instrument executed [after effective date of statute]:
(a) The words “child”, “grandchild”, “heir”, “issue”, “descendant”, or an equivalent,
or any other word of like import, shall be held to include any person for whom parentage has
been established under this Article 1 of G.S. 49A, unless a contrary intention plainly appears
from the terms of the instrument, whether the instrument was executed before or after the
establishment of parentage.
(b) The use of the phrase “hereafter born” or similar language in any such
instrument to establish a class of persons shall not by itself be sufficient to exclude such
persons from inclusion in the class.
(c) Any reference to a natural person shall include any person for whom parentage
has been established under this Article 1 of G.S. 49A unless the instrument explicitly states that
such persons are excluded, whether the instrument was executed before or after such parent-child
relationship has been so established.
(d) Notwithstanding the provisions of G.S. 49A-1-105, a posthumously
conceived person shall be included in the definitions of the words “child”, “grandchild”, “heir”,
“issue”, “descendant” or an equivalent, or any other word of like import in any written
instrument if the instrument explicitly states that such child is included.
Exhibit C
Proposed Alternative to the current ART Bill
SECTION 1. Article 1 of G.S. 49A read as rewritten:
Article I
Parentage of Children Conceived by Assisted Reproduction
49A-1-100. Definitions.
In this Article:
(1)
“Assisted reproduction” means a method of intentionally causing pregnancy other
than sexual intercourse. The term includes, but is not limited to:
(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) “Child” means an individual of any age conceived via assisted reproduction and whose
parentage may be determined under this Article.
(3) “Donor” means a person with dispositional control of eggs, sperm or embryos who provides
eggs, sperm or embryos to another person for gestation and relinquishes all present and future
parental and inheritance rights and obligations to any resulting child.
(4) “Embryo” means a cell or group of cells containing a diploid complement of chromosomes or
a group of such cells, not including a gamete, that has the potential to develop into a live born
human being if transferred into the body of a woman under conditions in which gestation may
be reasonably expected to occur.
(5) “Gamete” means a cell containing a haploid complement of deoxyribonucleic acid that has
the potential to form an embryo when combined with another gamete. The term includes:
(a)
sperm;
(b)
eggs;
(c)
nuclear deoxyribonucleic acid from one human being combined with the cytopasm,
including, without limitation, cytoplasmic deoxyribonucleic acid, of another human
being.
(6) “Genetic surrogate” means an adult woman who is not an intended parent and who enters into a
surrogacy agreement to bear a child conceived using her own gamete.
(7) “Gestational surrogate” means an adult woman who is not an intended parent and who enters into
a surrogacy agreement to bear a child conceived using the gametes of other persons and not her
own.
(10 “Intended parent” means a person, married or unmarried, who manifests the intent, pursuant to
this Article, to be legally bound as the parent of a child resulting from assisted reproduction. The
term is not limited to an individual who has a genetic relationship with the child.
(11)“In vitro fertilization” means the formation of a human embryo outside the human body.
(12)”Parent” means a person who has established a legal parentage relationship with a child pursuant
to this Article.
(13)”Parentage” means the legal relationship existing between a child and a parent of the child. The
term includes the mother-child relationship and the father-child relationship.
(14)”Surrogacy agreement” means an agreement under this Article by which a woman agrees to
become pregnant through assisted reproduction with the intention that she will relinquish the
resulting child to the intended parent or parents. The term refers to such an agreement regardless
of the surrogate’s genetic connection to the resulting
§ 49A-1-101. Parentage of Children Conceived by Means of Assisted Reproduction
1) Donor not parent of child conceived by means of assisted reproduction. A donor is not
a parent of a child conceived by means of assisted reproduction.
a) Exceptions. Nothwithstanding subsection 1,
i) A person who provides a gamete or gametes or an embryo or embryos to be used for
assisted reproduction for the person’s spouse is a parent of the resulting child (ME
Parentage Statute); and
ii) A person who provides gametes for and consents to; or a person who consents to
assisted reproduction by a woman as provided in subsection 3 with the intent to be the
parent of the resulting child is a parent of the resulting child.
2) Surrogate not parent of child conceived by means of assisted reproduction.
a) Genetic surrogate not a parent of child conceived of assisted reproduction. A genetic
surrogate is not a parent of a child conceived by means of assisted reproduction.
b) Gestational surrogate not a parent of child conceived of assisted reproduction. A
gestational surrogate is not a parent of a child conceived by means of assisted reproduction.
3) An individual who:
a) Enters into a surrogacy agreement with a gestational surrogate; and
b) Consents to the transfer of embryos over which said individual has dispositional control
into the uterus of said gestational surrogate, and
c) intends to be the parent of the resulting child; is the parent of the resulting child.
4) The spouse of a person who provides gametes for use in assisted reproduction where the
spouse, the individual providing gametes, and the woman giving birth all consent to the use of
assisted reproduction with the intent that the individual will be the parent of the resulting child
is a parent of the resulting child. (UPA. 2017).
5) Except as provided in this section, the child of assisted reproduction shall be considered the
legal child of the intended parent or parents for purposes of state law immediately upon birth
of the child;
6) Parental rights shall vest in the intended parent or parents immediately upon birth of the child;
7) Sole custody of the child shall rest with the intended parent or parents immediately upon birth
of the child;
8) Neither a gestational surrogate nor a genetic surrogate nor the spouse of a gestational surrogate
or the spouse of genetic surrogate shall be the parents of the child unless otherwise determined
by a court of competent jurisdiction.
9) Consent to Assisted Reproduction
a) Written Consent. Consent by a person who intends to be a parent of a child born through
assisted reproduction must be set forth in a writing that is executed by each intended parent
prior to the birth of the child, and provides that the signatories consent to the use of assisted
reproduction to conceive a child with the intent to parent the child.
b) Lack of Consent. Failure of a person to sign a consent required by subsection 1 before or
after the birth of a child does not preclude an adjudication of parentage. (ME)
10) Presumption of Parentage
a) An individual is presumed to be a parent of a child conceived by means of assisted
reproduction if:
i) The individual who gave birth to the child and is not a genetic surrogate or a gestational
surrogate; or
ii) The individual and the woman who gave birth to the child are:
(1) married, and
(2) the child is born during the marriage, and
(3) The woman who gave birth to the child is not a genetic surrogate or a gestational
surrogate; or
iii) The individual and the woman who gave birth to the child were:
(1) married to each other,
(2) and the child is born within 300 days after the marriage terminated by death,
annulment, declaration of invalidity, separation, or divorce, and
(3) The woman who gave birth to the child is not a genetic surrogate or a gestational
surrogate; or
iv) Before the birth of the child,
(1) The individual and the woman who gave birth to the child married each other in
apparent compliance with the law, even if the attempted marriage is or could be
declared invalid, and
(2) the child is born during the invalid marriage or within 300 days after the marriage
terminated by death, annulment, declaration of invalidity, separation, or divorce,
and
(3) The woman who gave birth to the child is not a genetic surrogate or a gestational
surrogate
v) A presumption of parentage established under this section may be rebutted and
competing presumptions of parentage may be resolved only by adjudication under
Article ___.
vi) Laboratory Error. If due to a laboratory error, a resulting child was intended to be
genetically related to either or both of the intended parents, but it is determined that
said child is not genetically related to either of the intended parents or to the woman
who gave birth to the child, then the intended parents are the parents of the child unless
adjudicated otherwise.
11) Proceedings to adjudicate parentage: Requirements.
a) Except as otherwise provided in subsection _, the legal spouse of a woman who gives birth
to a child by means of assisted reproduction may not challenge the parentage of the child
unless:
i) Within 2 years after learning of the birth of the child, a proceeding is commenced to
adjudicate parentage; and
(1) The court finds that either:
(a) Before or after the birth of the child, the legal spouse did not consent to the
assisted reproduction; or
(b) The woman who gave birth to the child was acting as a genetic surrogate or a
gestational surrogate
b) A proceeding to adjudicate parentage may be maintained at any time if the court determines
that:
i) The legal spouse did not provide gametes for, or consent to, the assisted reproduction
by the woman who gave birth;
(1) The legal spouse and the woman who gave birth to the child have not cohabited
since the probable time of the assisted reproduction; and
(2) The legal spouse never openly held out the child as his or her own.
12) Former spouse not parent if parties legally separate before transfer of eggs, sperm or
embryos unless consented to in record; withdrawal of consent.
a) If a marriage is dissolved by legal separation of the parties before the transfer of eggs,
sperm or embryos, and the former spouse contributed eggs or sperm, the former spouse
may withdraw his/her consent to assisted reproduction in writing at any time prior to the
transfer of eggs, sperm or embryos.
b) If the former spouse contributed eggs or sperm and withdraws his/her consent in writing
prior to the transfer of eggs, sperm, or embryos, then said eggs, sperm, or embryos may not
be transferred to any person.
c) In the event that eggs, sperm, or embryos are transferred without the consent of a former
spouse who contributed said eggs or sperm, the former spouse is not a parent of the
resulting child unless the former spouse consented in a record that if assisted reproduction
were to occur after a dissolution or separation, the former spouse would be a parent of the
child.
d) The consent of a person to assisted reproduction may be withdrawn by that person in a
record at any time before placement of the eggs, sperm or embryos.
13) Parent status of a deceased person.
a) If a person who consented in a writing to be a parent by assisted reproduction dies before
transfer or implantation of gametes or embryos, the deceased person is not a parent of the
resulting child unless the deceased person consented in a writing that, if assisted
reproduction were to occur after death, the deceased person would be a parent of the child.
§ 49A-1-102, Surrogacy Agreements.
(a)
A surrogacy agreement meeting the requirements of this section is valid and enforceable
in accordance with its terms and provisions to the extent such terms and provisions are not inconsistent
with any other provisions of this Article I of G.S. 49A.
(b)
A surrogacy agreement:
(1)
must be in writing and acknowledged by all of the parties before a certifying
officer as defined in G.S. 52-10(b);
(2)
shall be executed prior to the commencement of the contemplated assisted
reproduction procedure by:
(A)
(B)
married;
(C)
the genetic surrogate or gestational surrogate;
the spouse of the genetic surrogate or gestational surrogate, if she is
each intended parent; and
(D)
any donor, unless the donation is anonymous;
(3)
shall provide that genetic surrogate or gestational surrogate agrees to become
pregnant by the described means of assisted reproduction and to carry and give birth to a child;
(4)
shall provide that the genetic surrogate or gestational surrogate, her spouse, if she
is married, and any third-party donors who are parties to the surrogacy agreement:
(A)
relinquish all rights and duties to any child conceived through the
contemplated assisted reproduction procedure; and
(B)
upon birth;
(5)
surrender custody of such child to each intended parent immediately
shall provide that any intended parent:
(A)
becomes a parent of any child resulting from the contemplated assisted
reproduction procedure; and
(B)
accepts custody of any child resulting from the contemplated assisted
reproduction procedure; and
(6)
counsel.
(c)
shall be reviewed by each of the parties represented by independent legal
A surrogacy agreement may provide for:
(1)
the payment of consideration or other compensation to the genetic carrier or
gestational surrogate and the timing and manner of any such payment;
(2)
the payment or reimbursement of the genetic surrogate’s or gestational
surrogate’s reasonable expenses related to the contemplated assisted reproduction procedure and
the surrogacy agreement, including without limitation medical, legal or other professional
expenses and living expenses;
(3)
the right of the genetic surrogate or gestational surrogate to utilize the services of
a physician of her choosing, after consultation with each intended parent, to provide her care
during the pregnancy;
(4)
a requirement that the genetic surrogate or gestational surrogate undergo all
medical exams, treatments and fetal monitoring procedures that her physician recommends for
the success of the pregnancy;
(5)
a requirement that the genetic surrogate or gestational surrogate abstain from any
activities that intended parent or the chosen physician reasonably believes may be harmful to the
pregnancy or the future health of the child, including without limitation smoking, drinking
alcohol, using non-prescribed drugs, using prescription drugs not authorize by a physician aware
of the pregnancy, exposure to radiation, or any other activities prescribed by a health care
provider;
(6)
a waiver such that the surrogacy agreement may be valid and enforceable without
consideration; and
(7)
Other matters or requirements not contrary to or inconsistent with the provisions
of this Article 1 of G.S. 49A.
(d)
In the event of a breach or anticipated breach of a provision of a surrogacy agreement, the
superior court division of the General Court of Justice of this State shall have original jurisdiction to
determine the respective rights and obligations of the parties to the surrogacy agreement and the
appropriate remedies for the breach or anticipated breach.
§ 49A-1-103. Jurisdiction and Court Orders.
(a) Parentage may be conclusively established by a court order, before or after birth,
designating the parent or parents of a Child. A court order shall be necessary for an
Intended Parent to establish legal rights to a Child born as the result of assisted
reproduction technology. All such orders shall be obtained in accordance with this
section.
(b) Parentage Orders previously entered in this state which are in substantial compliance
with this section shall be valid and enforceable.
(b)
The clerks of superior court of this State shall have original jurisdiction over proceedings
to establish parentage for any Child. These proceedings shall be by a special proceeding before the clerks
of superior court and may be instituted and obtained before or after a Child is born. The Genetic
Surrogate or Gestational Surrogate, whichever is applicable, if any, and her spouse, if any, as well as any
known, non-anonymous Donor shall be served with the petition in such a special proceeding. In
uncontested proceedings it shall not be necessary for a Child to be a party. In a contested proceeding, the
clerk shall determine whether it shall be necessary for each Child to be a party and, if so, if such Child is a
minor or unborn, whether a guardian ad litem should be appointed to represent such Child. A court order
establishing parentage shall contain the following:
(1)
A finding setting forth and establishing the parent or parents of each Child who
is the subject of the proceeding;
(2)
If necessary, an order that each Child be surrendered to such Child’s
or parents established by the court;
parent
(3)
An order directing that a birth certificate be issued or amended for each such
Child naming the parent or parents of such Child as established by the court; and
(4)
Such other findings and orders relating to the parent-child relationship as
the court may deem appropriate.
(c)
The venue for a proceeding referred to in this section is the county of this State where
any party resides;
(d)
If it appears to the clerk of superior court that a proceeding referred to in subsection (a) is
not contested, the clerk of superior court has the power to hear and decide the petition summarily without
a hearing and issue a court order establishing the parent-child relationship requested in the petition.
(e)
If in any proceeding referred to in this section the Child is alleged to have been conceived
with gametes from unanticipated source(s), indicating possible breach of Agreement, medical error, or
other conduct inconsistent with the intent of the Intended Parents, the clerk of superior court may order
genetic testing to determine whether the Child is genetically related to the Intended Parents, the Surrogate
or any Donor.
(f)
If an issue of fact, an equitable defense, or a request for equitable relief or damages is
raised in any proceeding referred to in this section, the clerk of superior court shall transfer the proceeding
to the superior court division of the General Court of Justice of this State under G.S. §1-301.2.
(g)
If a court order of parentage has not been obtained and one or both Intended Parents die,
the remaining intended parent or the Child’s guardian shall petition for a court order of parentage, naming
all Intended Parents as the Child’s legal parents.
Section 2, Chapter 29 of the General Statutes is amended by adding between Article 4 and Article 5
thereof a new Article 4A which reads:
ARTICLE 4A.
CHILDREN CONCEIVED BY ASSISTED REPRODUCTION
§ 29-17A. Succession by, through, and from children conceived by assisted reproduction.
(a) A child conceived by assisted reproduction is a child for whom parentage has been
established in accordance with Article 1 of G.S. 49-A, or the applicable law of any other jurisdiction.
Each parent for whom parentage has been established with a child under Article 1 of G.S. 49A, or the
applicable law of any other jurisdiction, is a parent of such child for all purposes.
(b) A child conceived by assisted reproduction, and the heirs of such child, is entitled to take by
succession any property by, through and from such child’s parent or parents established under Article 1 of
G.S. 49A, or the applicable law of any other jurisdiction, the same as any child conceived without assisted
reproduction to such child’s said parent or parents
(c) An individual for whom parentage has been established under Article 1 of G.S. 49A, or the
applicable law of any other jurisdiction, with a child conceived by assisted reproduction, and the heirs of
such individual, is entitled to take by succession any property, by, through and from such child the same
as if such child was conceived without assisted reproduction to such individual for whom parentage has
been established.
§29-17B. Written Instruments. In any deed, grant, will, trust agreement or other written instrument
executed [after effective date of statute]:
(1)
The words “child”, “grandchild”, “heir”, “issue”, “descendant”, or an equivalent,
or any other word of like import, shall be held to include any person for whom parentage has been
established under this Article 1 of G.S. 49A, unless a contrary intention plainly appears from the terms of
the instrument, whether the instrument was executed before or after the establishment of parentage.
(2)
The use of the phrase “hereafter born” or similar language in any such
instrument to establish a class of persons shall not by itself be sufficient to exclude such persons
from inclusion in the class.
(3)
Any reference to a natural person shall include any person for whom parentage
has been established under this Article 1 of G.S. 49A unless the instrument explicitly states that such
persons are excluded, whether the instrument was executed before or after such parent-child relationship
has been so established.
(4)
Notwithstanding the provisions of G.S. 49A-1-105, a posthumously
conceived
person shall be included in the definitions of the words “child”, “grandchild”,
“heir”, “issue”,
“descendant” or an equivalent, or any other word of like import in any written instrument if the
instrument explicitly states that such child is included.
SECTION 3. Chapter 130A-101 of the General Statutes is amended by amending said Chapter as
follows:
§ 130A-101. Birth registration.
[(a), (b), (c) and (d) remain the same.]
(e) If a woman gives birth without the assistance of reproductive technology and she was married at
the time of either conception or birth, or between conception and birth, the name of her spouse shall be
entered on the certificate as the other parent of the child, except as provided in this subsection. The name
of the putative father shall be entered on the certificate as the other parent of the child if one of the
following conditions exists:
(1) Paternity has been otherwise determined by a court of competent jurisdiction, in which
case the name of the father as determined by the court shall be entered.
(2) The child's mother, mother's spouse, and putative father complete an affidavit
acknowledging paternity that contains all of the following:
a. A sworn statement by the mother consenting to the assertion of paternity by the
putative father and declaring that the putative father is the child's natural father.
b. A sworn statement by the putative father declaring that he believes he is the
biological father of the child.
c. A sworn statement by the mother's spouse consenting to the assertion of paternity
by the putative father.
d. Information explaining in plain language the effect of signing the affidavit,
including a statement of parental rights and responsibilities and an acknowledgment
of the receipt of this information.
e. The social security numbers of the putative father, mother, and mother's spouse.
f. The results of a DNA test that has confirmed the paternity of the putative father.
(f) If a woman gives birth without the assistance of reproductive technology and she was not married
at all times from date of conception through date of birth, the name of a father shall not be entered on
the certificate unless the woman who gave birth and the man thought to be the biological father
complete an affidavit acknowledging paternity which contains the following:
(1) A sworn statement by the woman giving birth consenting to the assertion of paternity by
the father and declaring that the he is the child's biological father and that the woman who
gave birth was unmarried at all times from the date of conception through the date of birth;
(2) A sworn statement by the father declaring that he believes he is the biological father of
the child;
(3) Information explaining in plain language the effect of signing the affidavit, including a
statement of parental rights and responsibilities and an acknowledgment of the receipt of this
information; and
(4) The social security numbers of both parents.
The State Registrar, in consultation with the Child Support Enforcement Section of the
Division of Social Services, shall develop and disseminate a form affidavit for use in compliance
with this section, together with an information sheet that contains all the information required to be
disclosed by subdivision (3) of this subsection.
Upon the execution of the affidavit, the declaring father shall be listed as the father on the
birth certificate, subject to the declaring father's right to rescind under G.S. 110-132. The executed
affidavit shall be filed with the registrar along with the birth certificate. In the event paternity is
properly placed at issue, a certified copy of the affidavit shall be admissible in any action to establish
paternity. The surname of the child shall be determined by the mother, except if the father's name is
entered on the certificate, the mother and father shall agree upon the child's surname. If there is no
agreement, the child's surname shall be the same as that of the mother.
The execution and filing of this affidavit with the registrar does not affect rights of
inheritance unless the affidavit is also filed with the clerk of court in accordance with G.S. 2919(b)(2).
(g) If a child is born whose conception was achieved through the use of assisted reproductive
technology, the individuals who shall be listed as said child’s parent or parents shall be those
individuals adjudicated to be the child’s parent or parents pursuant to NCGS Sec. 49A-1-103.
(h) The surname of the child shall be whatever name is chosen by both parents of the child if the
parents are married, by the unmarried mother of the child if there is no known father, or by the
individuals adjudicated to be the parent or parents of the child pursuant to NCGS Sec. 49A-1103.
(i) Each parent shall provide his or her social security number to the person responsible for preparing
and filing the certificate of birth.
(j) When a birth occurs, the person responsible for preparing the birth certificate under this section
shall provide the mother, father, or legal guardian of the child with information about how to request
a protected consumer security freeze for the child under G.S. 75-63.1 and the potential benefits of
doing so.