§1979.__Effect of nonvalidated gestational agreement

1.__Not enforceable.__A gestational agreement, whether in a record or not, that is not judicially validated is not enforceable.

2.__Parent-child relationship.__If a birth results under a gestational agreement that is not judicially validated as provided in this subchapter, the parent-child relationship is determined as provided in subchapter 2.

3.__Liability for support.__Individuals who are parties to a nonvalidated gestational agreement as intended parents may be held liable for support of the resulting child, even if the agreement is otherwise unenforceable. The liability under this subsection includes assessing all expenses and fees as provided in section 1956.

Comment

(This is section 809 of the UPA.)

Source: USCACA §§ 5(b),10.

This section distinguishes between an unenforceable agreement and a prohibited one. Given the widespread use of assisted reproductive technologies in modern society, the Act attempts only to regularize the parentage aspects of the science, not to regulate the practice of assisted reproduction. If individuals choose to ignore the protections afforded gestational agreements by the Act, parentage questions will remain when a child is born as a result of an nonvalidated gestational agreement. The Act provides no legal assistance to the intended parents. The gestational mother is denominated the mother irrespective of the source of the eggs, and donors of either eggs or sperm are not parents of the child. Notwithstanding the fact that the intended parents in a nonvalidated agreement may not enforce that agreement, subsection (c) provides that a court may hold the intended parents to an obligation to support the resulting child of the unenforceable agreement.

Under USCACA (1988), agreements that were not approved were declared "void." Under the new UPA, a nonapproved agreement is "unenforceable." The result may be virtually the same in some instances. As under the prior Act, the gestational mother is the mother of a child conceived through assisted reproduction if the gestational agreement has not been judicially approved as