BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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,  
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          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  

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          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  

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          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  

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          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  

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          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


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           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  

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               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

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          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

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