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F I S C A L I M P A C T R E P O R T

SPONSOR McSorley

DATE TYPED 3/7/05

HB

SHORT TITLE Uniform Parentage Act

SB 1057

ANALYST Dunbar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$250-$300 Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

REVENUE

Estimated Revenue

FY 05

FY 06

Subsequent

Years Impact

Recurring or

Nonrecurring

Fund

Affected

$ (150.0)

See Narrative

Recurring

General Fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Children Youth and Families Department (CYFD)

Attorney General (AG)

SUMMARY

Synopsis of Bill

Senate Bill 1057 would repeal the existing Uniform Parentage Act and replace it with an entirely

new Uniform Parentage Act based on the 2002 Uniform Final Act passed by the National Con-

ference of Commissioners on Uniform State Law (NCCUSL). The proposed Uniform Parentage

Act provides a procedure for establishing a legal parent-child relationship. The proposed Uni-

form Parentage Act contains requirements for notification to parents in a proceeding for adoption

or to terminate parental rights. The proposed Uniform Parentage Act also requires CYFD to in-

quire into where a child was conceived and born and to search any existing registries in other

states if CYFD has reason to believe that a child may have been conceived or born in another

state.

Senate Bill 1057 Page 2

The bill would amend the statute relating to preparation and filing of birth certificates and the

statute setting forth the judicial procedure for establishing facts of a child’s birth.

The bill would amend the definitions of “acknowledged,” “alleged” and “presumed” father con-

tained in the Adoption Act and add a definition of “mother” to the Adoption Act. The bill also

adds a definition of “adjudicated father” to the Uniform Parentage Act, but not to the Adoption

Act.

The bill would establish a registry of paternity with the vital statistics bureau. The existing puta-

tive father registry, established pursuant to the Adoption Act, would become a part of the registry

of paternity for all purposes.

Significant Issues:

The following summary is taken in large part from the “Prefatory Note” to the new Act with cer-

tain language added for clarity. It has been combined with a summary prepared by the The Na-

tional Conference of Commissioners on Uniform State Laws NCCUSL.

The Uniform Parentage Act, as adopted by this bill, is structured as follows:

Article 1, General Provisions, adds many new definitions to clarify the participants in determina-

tions of parentage and adapt the Act to recent scientific developments including genetic testing.

Article 2, Parent-Child Relationship continues a number of the 1973 provisions with little or no

change, while eliminating the ambiguous term “natural” to describe a genetic parent. In Article

2, the legal father may be one of the following: an unrebutted presumed father (usually a man

married to the birth mother at conception or a man who has lived with a child for the first two

years of the child's life and treated the child as his child), a man who has acknowledged paternity

under Article 3, an adjudicated father as the result of a judgment in a paternity action, an adop-

tive father, a man who consents to an assisted reproduction under Article 7, or an adjudicated

father in a proceeding confirming a gestational agreement under Article 8.

Article 3, Voluntary Acknowledgment of Paternity, is entirely new and is driven by federal man-

dates that states provide simplified nonjudicial means to establish paternity, especially for new-

borns and young children. This article provides a non-judicial, consent proceeding for acknowl-

edgment of paternity.

Article 4, Registry of Paternity, is entirely new and incorporates a tightly integrated registry law

to deal with the rights of a man who is neither an acknowledged, presumed or adjudicated father.

A primary goal of this article is to facilitate adoption proceedings. Article 4 provides a specific

registry for putative and unknown fathers. The registry permits them to be notified if there is a

proceeding for adoption or termination of parental rights. Before a child is one-year-old, there

must be a certificate of search presented to the court hearing the adoption or termination of pa-

rental rights action. If the certificate shows that no putative or unknown father has registered

within 30 days of the birth of the child, parental rights may be terminated without further notice.

Once a child has reached the age of one year, however, the registry no longer has any effect. Ac-

tual notice is then required before any termination of parental rights may occur. There are impor-

tant exclusions from the effect of the registry. No rights of a father who has established a parent-

child relationship may be terminated because there was no registration. Therefore, no presumed

Senate Bill 1057 Page 3

father, adjudicated father or father by acknowledgment may have his parental rights terminated

under Article 4.

Article 5, Genetic Testing, comprehensively covers that subject in ten separate sections. Article 5

establishes a separate procedure for genetic testing, so that a court may order testing without a

full-blown paternity action. A reasonable probability of sexual contact between the putative fa-

ther and the mother is enough to initiate the proceeding. A putative father may also initiate the

proceeding to obtain the tests to prove that he is not the genetic father. Standards for genetic test-

ing are part of Article 5. The standard for a presumption of paternity as a result of testing is also

established by statute. The measure is 99% probability of paternity based on appropriate calcula-

tions of "the combined paternity index." The presumption is rebuttable by further genetic evi-

dence that excludes the putative father or that identifies another man as the genetic father. A

court may compel genetic testing of a man's blood relatives if he is not available for testing. A

child support agency may petition for genetic testing, but only if there is no presumed, acknowl-

edged or adjudicated father. Article 5 also deals with allocation of costs for genetic testing and

for confidentiality of results.

Article 6, Proceeding to Adjudicate Parentage, sets forth the parties to, and the procedures for,

adjudicating parentage and challenging acknowledgments, presumptions, and judgments.

Article 7, Child of Assisted Reproduction contains provisions applicable to children born as a

result of assisted reproductive technologies. It contains more elaborate provisions governing

those technologies, which include sperm donation and egg or embryo placement. If a couple con-

sents to any sort of assisted conception, and the woman gives birth to the resultant child, they are

the legal parents. A donor of either sperm or eggs used in an assisted conception may not be a

legal parent under any circumstances.

Article 8, Gestational Agreement, governs what has become known as “surrogate” motherhood

and agreements for those arrangements. It provides for “validation” of such agreements in court,

and states that gestational agreements that have not been validated by a court are unenforceable.

However, the intended parents may still be held liable for support, fees, and costs even if the

agreement is not judicially validated.

New Mexico adopted the 1973 version of the NCCUSL’s Uniform Parentage Act in 1986. The

new Uniform Parentage Act attempts to recognize the obligations of parents in any possible com-

bination and permutation of marriage, method for conception of the child, and arrangements that

intended parents make to have children.

The subject of gestational agreements is one of the most controversial addressed by this Act. A

gestational agreement occurs between a woman and a couple obligating that woman to carry a

child for the intended parents. The conception must be an assisted conception and may not in-

volve sexual intercourse. The woman who carries the child to birth pursuant to a gestational

agreement is not the legal mother of that child, an exception to the general rule. If she is a mar-

ried woman, her husband must consent to the agreement. He then has no parental rights or obli-

gations with respect to the child. The intended parents become the legal parents of the child. The

NCCUSL states that adoption of Article 8 governing those agreements is optional, given that

some states have decided that gestational agreements are invalid as against public policy. How-

ever, NCCUSL states that they are being used regardless of legal impediments and recommends

Article 8 as a way of protecting the rights of the parties and the child born as a result of a gesta-

tional agreement. Article 8 of this Act recognizes those agreements, provides a legal procedure

for establishing their validity and protecting the rights and health of the parties, and clarifies the

Senate Bill 1057 Page 4

status of a child born as a result. That Article provides for joining of the gestational mother’s

husband to the proceedings, residency requirements in order to validate a gestational agreement,

a home study by CYFD of the intended parents, and termination of a gestational agreement after

validation. Before pregnancy occurs, any party may terminate the agreement. However, after

pregnancy, only the court may terminate a validated gestational agreement and then only “for

good cause shown”.

This version of the Uniform Parentage Act was approved by the American Bar Association on

February 10, 2003.

DOH has the following concerns with the bill:

1.

SB 1057 would designate DOH Vital Statistics Bureau (Bureau) as the entity responsible

for establishing and maintaining the Registry of Paternity, and for issuing birth certifi-

cates subsequent to judicial orders related to paternities and gestational agreements. It

would prohibit the Bureau from charging a fee for acknowledgements of paternities and

denials of paternities. The Bureau currently charges $10.00 for filing a paternity after the

birth has been registered. The Bureau is funded solely through the General Fund and fees

for services. There is currently no charge for paternities that are submitted by the hospital

along with the birth registration.

2.

SB 1057 repeals State Statute 32A-5-20 which established the Putative Father Registry.

The Bureau currently has over 9,000 names listed. SB 1057 would make no provisions

for the further use of this registry, which has been used to register males who allege pa-

ternities.

3.

SB 1057 would require that hospitals receive training regarding the Uniform Parentage

Act. The Bureau currently provides birth registration training as needed to hospitals.

The Bureau has only one trainer for both birth and death registrations.

4.

SB 1057 would amend the process of obtaining certain birth registration information.

This information provides statistical data that is used for program planning regarding

birth information and birth outcomes. SB 1057 makes no provisions for registering in-

formation of the birth mother or the gestational mother prior to registering information of

the “intended parents” in the case of an adjudicated gestational agreement, which estab-

lishes the legal “child-parent” relationship through court order.

PERFORMANCE IMPLICATIONS

CYFD is audited by the federal Children’s Bureau on the timeliness of adoptions. The additional

requirements to notify alleged fathers and determine the circumstances of the child’s conception

and birth could delay permanency for children and impact CYFD’s ability to comply with federal

law and standards under the Adoption and Safe Families Act.

FISCAL IMPLICATIONS

DOH indicates that three additional FTES, at an estimated cost of $120,572 would be needed to

fulfill the Bureau’s requirements under SB 1057. Additional staff will require increased office

space, which is not available in the Bureau’s current location. New forms would be required un-

der SB 1057, including “certificates of searches” related to the duties associated with the Regis-

Senate Bill 1057 Page 5

try of Paternity. The cost estimate for printing and storing these new forms is estimated at

$20,000 annually. A one-time cost for modifications to both the manual and electronic process-

ing of the birth registration and issuance systems is estimated at $100,000.

Further, DOH notes, SB 1057 would prohibit the Bureau from collecting fees for filing acknowl-

edgements of paternity and non-paternity, resulting in a loss of approximately $30,000 annually

to the Bureau. Currently, the Bureau receives $60,000 annually from the Child Support En-

forcement Agency for providing ongoing information regarding paternities. SB 1057 would

prohibit this fee collection, resulting in additional lost revenues.

Estimated loss to the General Fund under SB1057

60,000.00

Estimated loss to the DOH under SB1057

90,000.00

Total Estimated loss

$ 150,000.00

FTE Positions needed to fulfill the need for training of birth registration sites: hospitals, mid-

wifes, tribal authorities and other entities and staff to prepare, promulgate and file documentation

under the proposed SB1057. Costs also include Salaries, benefits, and in-state travel per diem,

vehicle maintenance.

Additional Positions required with SB1057

Estimated Cost for two (2) additional FTE Positions for Training and

Development and Management

75,712.00

Estimated Cost for one (1) Paralegal

40,560.00

Reclassification of Positions

4,300.00

Total for new Positions

$ 120,572.00

Additional Cost required with SB1057

Costs to re-engineer current operating system

100,000.00

Estimated Cost of Forms

20,000.00

Estimated Cost for Training and Promulgation of rules

9,400.00

Total Additional Costs

$ 129,400.00

Total Fiscal Impact required with SB1057

Total Estimated loss

$ 150,000.00

Total for new Positions

$ 120,572.00

Total Additional Costs

$ 129,400.00

Total Fiscal Impact

$ 399,972.00

The additional notification requirements would result in CYFD expending resources in locating

and publishing on alleged fathers and in conducting searches of existing registries in other states.

In addition, if CYFD is not able to comply with the federal law and standards (as described

above) under the Adoption and Safe Families Act, it will be assessed financial penalties related

to the Title IVE funding.

ADMINISTRATIVE IMPLICATIONS

Three addition full-time equivalent (FTE) for DOH would be needed as follows:

•

2 FTE staff to train hospitals and midwives on the Uniform Parentage Act, and

•

1 paralegal FTE to establish and maintain the Registry of Paternity as proposed in SB

1057.

Senate Bill 1057 Page 6

In addition, reclassification of a several clerk positions in the Bureau would be needed to ensure

that qualified staff are available to deal with the complexities of the paternity and parentage du-

ties as outlined in SB 1057.

The Bureau would also be required to promulgate rules and to develop and disseminate forms

required by SB 1057.

TECHNICAL ISSUES

The proposed bill conflicts with the Adoption Act in the definition of “alleged father.”

The proposed bill contains a definition of “adjudicated father” that is not contained in the Adop-

tion Act. The requirement that CYFD notify an alleged father, who has not registered with the

bureau of vital statistics, conflicts with the Adoption Act and with U.S. Constitutional Law.

Section 1-102.E. Definitions, line 24: change “public health division” to “Vital Statistics Bureau

in the Epidemiology and Response Division”.

DOH suggests changing Section 1-102.M. Definitions, lines 10-11: change “gestational mother”

means an adult women who gives birth to a child pursuant to a gestational agreement” to “gesta-

tional mother means a woman who gives birth to a child pursuant to a gestational agreement

validated under Article 8 of the Uniform Parentage Act”

Under Section 1-102 Definitions, add:

“birth mother” means a woman giving birth to her own genetic child

“intended mother” means the person intended to be the mother under a valid gestational

agreement for a child under the Uniform Parentage Act.

“intended parents” – the persons who are parties to a valid gestational agreement for a

child under the Uniform Parentage Act.

Section 4-401, line 6, delete the reference to “Section 32A-5-20 NMSA 1978”, because it is re-

pealed in Section 9.13, line 22.

Under Article 9,Section 10, add:

G. When a live birth occurs in this state, the birth registration required to be filed with the

Bureau must contain information on either the birth mother or the gestational mother, or the

registration will be deemed incomplete, and a birth certificate shall not be issued until the re-

quired information is obtained.

OTHER SUBSTANTIVE ISSUES

CYFD provided the following information:

•

A child’s need for a permanent home (permanency) must be paramount. However, this bill

places the rights of fathers who have not registered or taken any affirmative step to establish

a relationship with the child ahead the child’s right to this permanency.

•

The proposed Uniform Parentage Act greatly expands the purpose and impact of the existing

Senate Bill 1057 Page 7

Act. Whereas the existing Act does not specifically apply to termination of parental rights

and adoption proceedings, the proposed Act expands the existing Act to include significant

additional notification requirements in proceedings to terminate parental rights and adoption

proceedings.

•

The requirement under the proposed Uniform Parentage Act that an alleged father be notified

of termination of parental rights and adoption proceedings, whether or not the father has reg-

istered with the vital statistics bureau, creates a major shift from the current state statutory

and U.S. Constitutional Law. Under U.S. Constitutional Law, a father who comes forward

and acknowledges paternity, takes actions to support a child, or develop a parent-child rela-

tionship with the child is entitled to the due process protections of the U.S. Constitution. If a

father takes none of these actions, the father is not entitled to the protections of the U.S. Con-

stitution.

State law, including the Adoption Act, also does not impose a notification requirement for al-

leged fathers in termination of parental rights or adoption proceedings.

•

The bill creates ambiguity in state law by providing a different definition of alleged father

and different notification requirements than those contained in the Adoption Act.

•

The shift from current state statutory and U.S. Constitutional Law, as well as the created am-

biguity, would greatly affect the integrity of the adoption process, placing children at risk, by

leaving open the possibility that an adoption could be attacked by a father without a constitu-

tionally protected interest in the process. In addition, the bill could lead to adoptive place-

ments disrupting due to the uncertainty of the finality of the adoption process.

•

The time it takes to terminate parental rights and, therefore, to proceed to adoption of chil-

dren in CYFD’s custody could be significantly extended. While anticipated delays in finaliz-

ing adoptions created by the bill would be detrimental to children, there would be no benefit

to any parent with a constitutionally protected interest in the process.

•

The bill requires notification of termination of parental rights and adoption proceedings to

alleged fathers of children at least one year of age, but not to alleged fathers of children under

one year of age. The basis for the differentiation of these two categories is not apparent or

consistent with the circumstances of children in State custody.

•

The bill sets forth procedures to adjudicate the paternity of a child, including when there is

already a presumed or acknowledged father. Some actions to adjudicate paternity may be

brought at any time and may be joined with a termination of parental rights proceeding. The

provision creates uncertainty as to when a child is determined freed for adoption and in the

finality of adoptions themselves.

•

The bill would expand CYFD’s inquiry into the circumstances of the child’s conception and

birth and place additional requirements on CYFD if it has reason to believe that the child

may have been conceived or born in another state.

The DOH further states that:

•

In Section 2-204 (4)(a) of SB 1057, Presumption of Paternity, SB 1057 lists “a record

filed with the Bureau” as one of the methods for presumption of paternity. This places a

burden on DOH to establish and maintain records for non-judicial presumption of pater-

nity rather than on a judicial proceeding. In SB 1057, a valid acknowledgement of pater-

nity or non-paternity filed with the Bureau is equivalent to an adjudication of paternity.

This section conforms with 42 U.S.C. . 666 (a) (5) (C) (i) to simplify a civil process for

establishing paternity and non-paternity. However, again, this requirement would place a

significant burden on the Bureau to establish and maintain records for paternity and non-

paternity, as wells as to establish and maintain a notification process “in a manner pre-

Senate Bill 1057 Page 8

scribed for services of process in a civil action”. The Bureau would require the ongoing

services of a paralegal to fulfill this prescription. SB 1057 would prohibit the Bureau

from charging for filing acknowledgements of paternity or denial of paternity but does

not provide the Bureau with the staff and funding resources to fulfill the duties required

by SB 1057. Section 3-314 of SB 1057 would provide the Bureau with the authority to

adopt rules to implement the provisions of article 3-314, but resources are not provided

for this process.

•

Article 4 of SB 1057 would delegate the responsibility for the establishment of the Regis-

try of Paternity to the Bureau. The numerous record keeping and notification duties re-

quired under this Article would require two full time staff in order for the Bureau to com-

ply. In Section 4-403, the Bureau is required to notify the “alleged father” even if he is

not in the Registry of Paternity. It is not clear how the Bureau would have the informa-

tion to fulfill this requirement.

•

SB 1057 would prohibit the charging of fees for filing a registration or a rescission of

registration of paternity. In Section 4-416 of SB 1057, a child support enforcement

agency is not required to pay fees related to providing paternity information. This would

result in a loss of revenues for the Bureau from the child support division of the human

services department under a current joint powers agreement. Again, a significant work-

load regarding the Registry of Paternity is delegated to the Bureau without the accompa-

nying resources to fulfill the duties as required in SB 1057. In Section 4-422 the Bureau

would be required to furnish a “certificate of search” of the Registry of Paternity. These

are new forms and new duties for the Bureau without any new resources.

•

In Section 9-903, SB 1057 would repeal a portion of the Vital Statistics Act, including

24-14-13 D through G, and establishes new sections related to the “mother-child” and the

“father-child relationships. As under current statute, births must still be reported to the

Bureau within 10 days (24-14-13). SB 1057 would also allow a court to order a birth cer-

tificate to be prepared if a validated gestational agreement is filed with the district court

upon the birth of a child. Presumably, this process would take away the need for the “in-

tended parents” to go through adoption proceedings. However, the sequence and the tim-

ing of these two events could create confusion and disruption of the process for registra-

tion of births under the “birth mother” or the “gestational mother, and the adjudication of

the “child-parent relationship” as defined in SB 1057. Hospitals and midwives could be

faced with uncertainty regarding the registration of births because SB 1057 does not

clearly define the sequence of birth registrations; instead it deals only with the issuance or

amendment of the birth certificate. It is essential to the health and well-being of a child

as well as to maintaining accurate and valid health statistics that the Bureau receive in-

formation on the “birth mother” or the “gestational mother as well as the “intended

mother” to determine the health outcomes of children and mothers.

BD/lg:yr