BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2344| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2344 Author: Ammiano (D) Amended: 6/24/14 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 6-0, 6/17/14 AYES: Jackson, Corbett, Lara, Leno, Monning, Vidak NO VOTE RECORDED: Anderson SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 62-4, 5/19/14 - See last page for vote SUBJECT : Family law: parentage SOURCE : Author DIGEST : This bill creates three optional forms to allow intended parents to state their intention, in writing, to parent a child conceived with the use of assisted reproduction. This bill provides that use of the forms satisfy the existing requirement of a "writing" under law, but the forms are not be required to satisfy that requirement. The forms cover the following three situations: (1) married spouses or registered domestic partners using assisted reproduction to conceive a child; (2) unmarried intended parents using an intended parent's sperm to conceive a child; and (3) intended parents conceiving a child using eggs from one parent when the other parent will give birth. This bill also establishes a procedure for conducting a stepparent adoption for children born to married spouses, CONTINUED AB 2344 Page 2 registered domestic partners, or partners in a civil union, and exempts these adoptions from specified requirements. ANALYSIS : Existing law, the California Uniform Parentage Act (UPA), defines a parent and child relationship as the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The law provides that a parent and child relationship includes the mother and child relationship and the father and child relationship. Existing law provides that a person is a presumed parent if, among other things: (1) he or she was married to the child's mother and the child was born within 300 days of the marriage; (2) he or she attempted to marry the child's mother; or (3) he or she holds the child out as his or her own, and requires that the paternity presumptions be applied gender neutrally. Existing law provides that, if two or more paternity presumptions conflict with one another, the presumption that is founded on the weightier considerations of policy and logic controls, and further provides that a presumption of parentage is rebutted by a judgment establishing paternity of the child by another person. Existing law provides that paternity may be established by voluntary declaration for unmarried parents, or through a civil action brought by any interested party, as specified. Existing law defines "assisted reproduction" as conception by any means other than sexual intercourse, defines "assisted reproduction agreement" as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction, and defines the terms of the relationship between the parties to the contract. Existing law provides that the spouse of a woman who, with the written consent of her spouse, conceives through assisted reproduction with the sperm of a man other than her spouse, is treated in law as though he or she is the child's natural parent. Existing law provides that a donor of semen to a licensed physician or sperm bank for use in assisted reproduction of a CONTINUED AB 2344 Page 3 woman other than the donor's spouse is treated in law as if he were not the natural parent of the child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child. This bill creates optional statutory forms which allow intended parents to state, in writing, their intent to parent a child being conceived through use of assisted reproduction. This bill provides that the forms shall satisfy the writing requirement under Section 7613, but do not affect any presumptions or claims of parentage based on existing statute or case law. The created forms would address the following situations: Married spouses or registered domestic partners (or civil union partners from another state) who are using assisted reproduction to conceive and one partner will be giving birth; Unmarried, intended parents using sperm donated from one of the intended parents; and Intended parents conceiving a child with eggs donated from one of them, while the other will give birth. Existing law prohibits parties to an assisted reproduction agreement for gestational carriers (surrogacy agreement), as defined, from undergoing an embryo transfer or commencing injectable medicine prior to the execution of the surrogacy agreement. Existing law requires that both parties to an agreement be represented by separate, independent counsel prior to the signing of the surrogacy agreement, that the surrogacy agreement include the identity of the intended parent(s) and, unless anonymously donated, the persons from which the gametes originate. Existing law provides that a party to a surrogacy agreement may bring an action at any time to establish a parent-child relationship consistent with the intent expressed in the surrogacy agreement, and requires the court, upon petition by any party to a surrogacy agreement, to issue an order establishing parentage. This bill provides that a surrogacy agreement must include a disclosure of how the intended parents will cover the medical CONTINUED AB 2344 Page 4 expenses of the gestational carrier and the newborn. If health insurance is to be used, this bill requires that the disclosure include a review of insurance policy's provisions related to coverage for a surrogate pregnancy, including any possible liability for the gestational carrier and any notice requirements that might impact coverage or liability for the gestational carrier. Existing law provides a streamlined adoption procedure for a stepparent to adopt a stepchild, which requires an investigation of the proposed adoption, that the prospective parent appear before the court, and a fee, but does not generally require a homestudy. This bill creates a stepparent adoption process for children born to married spouses, registered domestic partners, or civil union partners. This bill exempts, for these stepparent adoptions, the investigation, fees, and hearing required for other stepparent adoptions, unless the court, for good cause, orders otherwise. This bill requires the court to grant the stepparent adoption if the court finds the following: The parent who gave birth and the spouse, registered domestic partner, or partner in a civil union, were married or in the registered domestic partnership or civil union when the child was born; and Any other person with a claim of parentage to the child who is required to receive notice of, or who must consent to, the adoption, has been notified or provided the required consent. Background It is the policy of the State of California to establish paternity for all children. The establishment of paternity provides children with equal rights and access to benefits such as health insurance, child support, and inheritance. Under existing law, a child born during a marriage to a wife who lives with her husband is conclusively presumed to be the child of the marriage. For a child born outside of a marriage, paternity may be established by a voluntary declaration of paternity or CONTINUED AB 2344 Page 5 through another legal presumption of paternity. In the event that two or more presumptions of paternity arise, the court is required to find in favor of the presumption which on the facts is founded on the weightier considerations of policy and logic. For most heterosexual couples, conception is achieved with the woman's own eggs and the sperm of her male partner, making parental identity straightforward. However, individuals and couples are increasingly using assisted reproduction technology, which can rely upon donor sperm, donor eggs, donor embryos, and host wombs, thereby requiring the legal concept of parentage to evolve. Generally, donors of genetic material are treated under law as though they are not the parents of a child conceived from that material. For example, California's Family Code treats sperm donors who are not married to the woman who conceives using the donor's sperm as "if he were not the natural father of the child thereby conceived, unless otherwise agreed to by the woman and donor in writing prior to conception of the child. In most of these cases, the law instead looks to the "intended parents," as defined by the California Supreme Court in Buzzanca v. Buzzanca (1998) 61 Cal.App.4th 1410, which held that, regardless of who provides the eggs, sperm or uterus, the intended parent(s) are "the first cause, prime movers, of the procreative relationship." Therefore, a parental relationship is often established when medical procedures are initiated and consented to by the intended parent(s), even in the absence of any biological relationship between them and the child(ren) created. In other situations, courts will look to an adult who has functioned as a parent to the child, and determine whether he or she fits an existing presumption under California law. The definition of what constitutes a family, or how a family is created has been the source of legal tension which the Legislature has sought to address. AB 1349 (Hill, Chapter 185, Statutes of 2011) distinguished between known sperm donors who planned to co-parent with the mother and more traditional sperm donors who gave their genetic material without any expectation of parenting the child conceived. Last year, the Legislature enacted AB 1403 (Judiciary Committee, Chapter 510, Statutes of 2013) to update the Uniform Parentage Act (UPA) by codifying case law which has applied presumptions of parentages neutrally with regards to gender, and make the Act's provisions gender CONTINUED AB 2344 Page 6 neutral where appropriate. SB 115 (Hill, 2013) sought to clarify how presumptions of parentage work in situations where an individual is both a presumed father and a sperm donor. Prior Legislation SB 274 (Leno, Chapter 564, Statutes of 2013) authorizes a court to find that more than two persons with a legal claim to parentage are parents if the court finds that recognizing only two parents would be detrimental to the child. SB 1476 (Leno, 2012) would have authorized a court to find that a child has more than two legal parents if in the best interest of the child. This bill was vetoed by Governor Brown. AB 1217 (Fuentes, Chapter 466, Statutes of 2012) requires a surrogate mother and the intended parent(s), each represented by independent counsel, to execute a notarized or witnessed surrogacy agreement before the mother can begin medication for assisted reproduction. AB 2356 (Skinner, Chapter 699, Statutes of 2012) excepts sperm donated by a sexually intimate partner of the recipient from second or repeat testing, as specified, if the recipient is informed of the testing requirements and signs a written waiver. Defines "sexually intimate partner" to include a known or designated donor to whose sperm the recipient had previously been exposed in a nonmedical setting in an attempt to conceive. AB 1349 (Hill, Chapter 185, Statutes of 2011) provides that a voluntary declaration of paternity is invalid under specified circumstances, allows a presumed parent to bring a motion set aside the voluntary declaration within a specified amount of time, and provides that a sperm donor would not be considered the natural father unless otherwise agreed to in writing. AB 25 (Migden, Chapter 893, Statutes of 2001) authorizes the employment of the procedures applicable to stepparent adoption to the adoption by a domestic partner of the child of his or her domestic partner. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No CONTINUED AB 2344 Page 7 SUPPORT : (Verified 8/1/14) California Cryobank California National Organization for Women Equality California National Center for Lesbian Rights New Life Agency Our Family Coalition RESOLVE Sharp Mary Birch Hospital OPPOSITION : (Verified 8/1/14) California Right to Life Committee ARGUMENTS IN SUPPORT : According to the author: Medical advances in Assisted Reproductive Technology (ART) have allowed many individuals and couples to become parents. Where the medical advances are ahead, our family code statutes are shamefully behind. AB 2344, the Modern Family Act, updates three ART related situations, removing barriers that intended parents, donors, and surrogates experience in the law. [This bill would also fix] a huge inequity for couples who are married or registered domestic partners and a child is born into their legal family, but their child's birth certificate is not legally recognized outside of California state borders. These families may avail themselves of stepparent adoption to have a court order of legal parentage that is granted reciprocity in all jurisdictions. Stepparent adoptions range in cost from $700 to several thousand dollars when hiring attorneys for each parent. This bill would waive the fees and allow a couple who meets specified criteria to complete a streamlined stepparent adoption as long as the court agrees there is no other claim to parentage. Finally? many health care plans contain hard to find exclusions for surrogate pregnancy in their Evidence of Coverage. The result sometimes culminates in a lien on the earnings of the surrogate to cover the pregnancy and delivery related health care service. The other CONTINUED AB 2344 Page 8 complication is when, and under whom, should a baby born from a surrogate, be enrolled in health insurance. Some hospitals/insurers automatically enroll newborns with their birth mothers which should not be the case with a surrogacy birth. Clarifying the gestational carrier contract to include disclosure of health insurance coverage for the surrogate and the child or children will clarify these complications for families using surrogacy. ARGUMENTS IN OPPOSITION : The California Right to Life Committee (CRLC), writes, "CRLC, Inc. considers this bill as another maneuver to break down family structure as recognized for centuries. The use of assisted reproduction for the purpose of creating a family turns the inherent dignity of a child upside down. "Frustrated women and men can seek children for selfish reasons. Children can become a commodity and an entity desired by parents and not desired for the joy of the child for him or herself. Assisted reproduction can lead to men and women choosing the gender and DNA traits of baby they wish to parent. "Men and women can go 'shopping' for a potential child in fertility clinics and agencies around the world. Websites and conferences detail how to choose a baby to one's liking. "Finally, AB 2344 promotes 'reproductive parity and equity' for same sex couples who cannot conceive normally. Therefore, promoting more definitions of parents who legally could be called "parent" demeans the family and should not be added to the Family Code." ASSEMBLY FLOOR : 62-4, 5/19/14 AYES: Achadjian, Alejo, Ammiano, Bloom, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman, Fong, Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Hagman, Hall, Harkey, Roger Hernández, Holden, Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein, Medina, Mullin, Muratsuchi, Pan, Perea, John A. Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Weber, Wieckowski, Williams, Yamada, Atkins CONTINUED AB 2344 Page 9 NOES: Donnelly, Grove, Jones, Patterson NO VOTE RECORDED: Allen, Bigelow, Conway, Dahle, Fox, Beth Gaines, Mansoor, Melendez, Nazarian, Nestande, Olsen, Waldron, Wilk, Vacancy AL:nl 8/5/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED