437
Preface to the UPA (2017)
COURTNEY G. JOSLIN*
Introduction
In 2017, the Uniform Law Commission (ULC) approved a revision
to the uniform law governing determinations of a child’s parentage—the
Uniform Parentage Act (UPA).1 This Preface describes the major changes
I. A Brief History of the Uniform Parentage Act
“First promulgated in 1973, the [Uniform Parentage Act (UPA)] is a
comprehensive statutory scheme for determining a child’s legal parentage.”2
The UPA, like many other Uniform Acts, is a product of the Uniform Law
Commission (ULC).3
states with non-partisan, well-conceived, and well drafted legislation that
1. See UNIF. PARENTAGE ACT (UNIF. L. COMM’N 2017), https://www.uniformlaws.org/
committees/community-home/librarydocuments?communitykey=c4f37d2d-4d20-4be0-8256-
22dd73af068f&tab=library documents. The Final Act, with Comments, is also included as the
The Uniform Illegitimacy Act was promulgated in 1922, the Blood Tests to Determine Paternity
Act was promulgated in 1952, and the Uniform Paternity Act was promulgated in 1969. See
UNIF. PARENTAGE ACT prefatory note (UNIF. LAW COMM’N 1973). The Uniform Probate Code also
addresses issues related to parentage.
2. Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 YALE L.J.F.
589, 597 (2018).
3. The ULC was previously known as the National Conference of Commissioners on
Uniform State Laws (NCCUSL).
* Professor of Law and Martin Luther King Jr. Research Scholar, UC Davis School of
Law. Professor Joslin served as Reporter for the UPA (2017). The author thanks Doug NeJaime
and Jamie Pedersen for thoughtful feedback on earlier drafts of this Article, and Sean Foley and
Judy Kang for editorial assistance.
Published in Family Law Quarterly, Volume 52, Number 3, Fall 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
438 Family Law Quarterly, Volume 52, Number 3, Fall 2018
brings clarity and stability to critical areas of state statutory law.”4 Since its
states have parentage statutes that are based on the UPA. “Approximately
nineteen states—ranging from Montana to Kansas to Hawaii to Rhode
eleven states—ranging from Alabama to Wyoming to Texas to Maine—
enacted the UPA (2002).”5 So far, three states—California, Vermont, and
Washington—enacted all or substantial portions of the UPA (2017).6
in an article [published in 1966] entitled ‘A Proposed Uniform Act on
Legitimacy’” authored by Professor Harry Krause.7 At that time, the
parentage laws in many states discriminated against nonmarital children.
Such laws were not only unfair, they were also likely unconstitutional.8
Heeding Professor Krause’s warning, a study committee was appointed by
the ULC in 1969 to consider the subject. While the committee deliberated,
the U.S. Supreme Court issued a number of decisions declaring that
laws that discriminated against so-called “illegitimate” children may be
unconstitutional.9 As the Court explained in one such case:
[I]mposing disabilities on the illegitimate child is contrary to the
basic concept of our system that legal burdens should bear some
relationship to individual responsibility or wrongdoing. . . . Courts
4. Overview, UNIF. L. COMM’N, http://www.uniformlaws.org/aboutulc/overview (last
visited Sept. 30, 2019).
5. Joslin, Nurturing Parenthood, supra note 2, at 598 (footnote omitted); see also UNIF.
PARENTAGE ACT refs. & annos. (UNIF. LAW COMM’N 1973) (listing state adoptions); UNIF.
PARENTAGE ACT (2000), UNIF. L. COMM’N, http://www.uniformlaws.org/committees/community-
home?CommunityKey=5d5c48d6-623f-4d01-9994-6933ca8af315 (last visited Sept. 30, 2019)
(listing the following states as adopters of the UPA (2000/2002): Alabama, Delaware, Illinois,
Maine, New Mexico, North Dakota, Oklahoma, Texas, Utah, Washington, and Wyoming).
6.
UNIF. PARENTAGE ACT (2017), UNIF. L. COMM’N, https://www.uniformlaws.org/
committees/community-home?communitykey=c4f37d2d-4d20-4be0-8256-22dd73af068f (last
visited Sept. 30, 2019).
7.
UNIF. PARENTAGE ACT prefatory note (UNIF. LAW COMM’N 1973) (citing Harry D.
Krause, Bringing the Bastard into the Great Society—A Proposed Uniform Act on Legitimacy,
44 TEX. L. REV. 829 (1966)); see also Harry D. Krause, Equal Protection for the Illegitimate, 65
MICH. L. REV. 477 (1967) [hereinafter Krause, Equal Protection].
8. Krause, Equal Protection, supra note 7, at 498 (arguing that this “legislatively enforced
inequality between legitimate and illegitimate children may rest on . . . prejudice”).
9. See, e.g., Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) (holding unconstitutional
Louisiana workers’ compensation statutes that denied equal treatment to dependent
unacknowledged illegitimate children); Levy v. Louisiana, 391 U.S. 68 (1968) (holding
unconstitutional Louisiana wrongful death statute that denied recovery to illegitimate children
for the wrongful death of their mother).
Published in Family Law Quarterly, Volume 52, Number 3, Fall 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Preface to the UPA (2017) 439
are powerless to prevent the social opprobrium suffered by these
hapless children, but the Equal Protection Clause does enable us to
strike down discriminatory laws relating to status of birth where—
interest, compelling or otherwise.10
These decisions made it all the more clear that the project was necessary
and that states needed the Act as soon as possible,11 as “the law of many
legitimate and illegitimate children.”12
mandate of the Constitution” by “providing substantive legal equality for
all children regardless of the marital status of their parents.”13 In this way,
from its initial inception, the UPA was intended to help states “reform
their parentage laws to eliminate rules that discriminated against [various
classes of] children.”14
In the 1990s, it was determined that the Act needed a reboot. Courts
in different states interpreted provisions of the Act inconsistently. In
addition, the Act did not address a number of important parentage issues
that had arisen in the intervening years. Finally, technological advances
with respect to genetic testing and assisted reproduction warranted “a
thoroughgoing revision of the Act.”15 A revision to the UPA was approved
by the ULC in July 2000. It was scheduled to be considered by the ABA
House of Delegates in February 2001, but the Act was withdrawn from
consideration after concerns were raised by two ABA entities: what was
then known as the ABA Section of Individual Rights and Responsibilities
10. Weber, 406 U.S. at 175 (footnote omitted).
11. UNIF. P ARENTAGE ACT prefatory note (UNIF. LAW COMM’N 2002) (“A series of United
States Supreme Court decisions invalidating state inheritance, custody, and tort laws that
disadvantaged out-of-wedlock children provided . . . both the impetus and a receptive climate
for the Conference to promulgate UPA (1973).”).
12. UNIF. PARENTAGE ACT prefatory note (UNIF. LAW COMM’N 1973).
13. Id.; see also id. § 2 (“The parent and child relationship extends equally to every child
and to every parent, regardless of the marital status of the parents.”); id. § 2 cmt. (“Sections
1 and 2 [of the UPA (1973) are] the major substantive sections of the Act [and] establish the
principle that regardless of the marital status of the parents, all children and all parents have
equal rights with respect to each other.”).
14. Joslin, Nurturing Parenthood, supra note 2, at 597.
15. UNIF. PARENTAGE ACT prefatory note (UNIF. LAW COMM’N 2002).
Published in Family Law Quarterly, Volume 52, Number 3, Fall 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
