The subject of gestational agreements was last addressed by the National Conference of Commissioners on Uniform State Laws in 1988 with the adoption of the Uniform Status of Children of Assisted Conception Act (USCACA). Because some Commissioners believed that such agreements should be prohibited, while others believed that such agreements should be allowed, but regulated, USCACA offered two alternatives on the subject; either to regulate such activities through a judicial review process or to void such contracts. As might have been predicted, the only two states to enact USCACA selected opposite options; Virginia chose to regulate such agreements, while North Dakota opted to void them.

In the years since the promulgation of USCACA (and virtual de facto rejection of that Act), approximately one-half of the states developed statutory or case law on the issue. Of those, about one-half recognized such agreements, and the other half rejected them. A survey in December, 2000, revealed a wide variety of approaches: eleven states allow gestational agreements by statute or case law; six states void such agreements by statute; eight states do not ban agreements per se, but statutorily ban compensation to the gestational mother, which as a practical matter limits the likelihood of agreement to close relatives; and two states judicially refuse to recognize such agreements. In states rejecting gestational agreements, the legal status of children born pursuant to such an agreement is uncertain. If gestational agreements are voided or criminalized, individuals determined to become parents through this method will seek a friendlier legal forum. This raises a host of legal issues. For example, a couple may return to their home state with a child born as the consequence of a gestational agreement recognized in another state. This presents a full faith and credit question if their home state has a statute declaring gestational agreements to be void or criminal.

Despite the legal uncertainties, thousands of children are born each year pursuant to gestational agreements. One thing is clear; a child born under these circumstances is entitled to have its status clarified. Therefore, NCCUSL once again ventured into this controversial subject, withdrawing USCACA and substituting bracketed Article 8 of the new UPA. The article incorporates many of the USCACA provisions allowing validation and enforcement of gestational agreements, along with some important modifications. The article is bracketed because of a concern that state legislatures may decide that they are still not ready to address gestational agreements, or that they want to treat them differently from what Article 8 provides. States may omit this