4.__Child conceived by sexual intercourse.__A gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.

5.__Consideration.__A gestational agreement may provide for payment of consideration.

6.__Decision of gestational mother.__A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or that of the embryos or fetus.

Comment

(This is section 801 of the UPA.)

Source: USCACA §§ 1(3), 5, 9.

The previous uniform act on this subject, USCACA, proposed two alternatives, one of which was to declare that gestational agreements were void. Subsection (a) rejects that approach. The scientific state of the art and the medical facilities providing the technological capacity to utilize a woman other than the woman who intends to raise the child to be the gestational mother, guarantee that such agreements will continue to be written. Subsection (a) recognizes that certainty and initiates a procedure for its regulation by a judicial officer. This section permits all of the individuals directly involved in the procedure to enter into a written agreement; this includes the intended parents, the gestational mother, and her husband, if she is married. In addition, if known donors are involved, they also must sign the agreement. The agreement must provide that the intended parents will be the parents of any child born pursuant to the agreement while all of the others (gestational mother, her husband, if any, and the donors, as appropriate) relinquish all parental rights and duties.

Under subsection (b), a valid gestational agreement requires that the man and woman who are the intended parents, whether married or unmarried, to be parties to the gestational agreement. This reflects the Act's comprehensive concern for the best interest of nonmarital as well as marital children born as the result of a gestational agreement. Throughout UPA the goal is to treat marital and nonmarital children equally.

Subsection (c) provides that in order to be enforceable, the agreement must be validated by the appropriate court under § 803.