BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2013-2014 Regular Session SB 115 (Hill) As Amended April 8, 2013 Hearing Date: April 16, 2013 Fiscal: No Urgency: No NR SUBJECT Parent and Child Relationship DESCRIPTION Existing law allows an individual to be presumed the parent of a child if he or she meets certain specified criteria, and authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship. Existing law also provides that a donor of semen provided to a licensed physician or sperm bank for the artificial insemination or in vitro fertilization of a woman other than the donor's wife, is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed prior to the conception of the child. This bill would clarify that notwithstanding the above provisions, any interested party may bring an action for the purpose of determining a parent and child relationship at any time. 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. (Fam. Code Sec. 7570.) 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. (Fam. Code Sec. 7540.) For a child born outside of a marriage, paternity may be established (more) SB 115 (Hill) Page 2 of ? by a voluntary declaration of paternity or through another legal presumption of paternity. (Fam. Code Secs. 7573, 7611.) 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. (Fam. Code Sec. 7612.) 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 impelling 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. (Fam. Code Sec. 7613(b).) 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." (Id. at 1424.) 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 can create legal tensions. AB 1349 (Hill, Chapter 185, Statutes of 2011) sought to address a number of these tensions and, among other provisions dealing with voluntary declarations of paternity, 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. This bill seeks to further clarify how presumptions of parentage work in situations where an individual is both a presumed father and a sperm donor. SB 115 (Hill) Page 3 of ? CHANGES TO EXISTING LAW Existing law provides that the child of a wife who lives with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (Fam. Code Sec. 7540.) Existing law provides that a man is presumed to be the natural father of a child in any of the following instances: he and the child's mother are married to each other when the child is born, or the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce; before the child's birth, he and the child's mother attempted to marry each other, although the attempted marriage is or could be declared invalid, and either the child is born during the attempted marriage or within 300 days after its termination, or if the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation; or after the child's birth, he and the mother have married or attempted to marry and with his consent he is named on the birth certificate as the child's father, or he has obligated to support the child in writing. (Fam. Code Sec. 7611 (a)-(c).) Existing law provides that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds out the child as his natural child. (Fam. Code Sec. 7611(d).) Existing law authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed because either he had received the child into his home and openly holds out the child as his natural child, or the child was in utero after the death of the presumed parent and specified conditions are satisfied (Fam. Code Sec. 7630(b).) Existing law provides that if two or more paternity presumptions arise, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. (Fam. Code Sec. 7612.) Existing law provides that a donor of semen to a licensed physician or sperm bank for use in artificial insemination or in SB 115 (Hill) Page 4 of ? vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of the child thereby conceived unless otherwise agreed to in a writing signed prior to the conception of the child. (Fam. Code Sec. 7613(b).) This bill would allow any interested party, regardless of treatment under the law as a sperm donor to a licensed physician or sperm bank, to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed because the presumed father received the child into his home and openly held the child out as his own. COMMENT 1.Stated need for the bill The author writes: According to the Centers for Disease Control, California has more fertility clinics than any other state in the nation?Unmarried individuals in California are increasingly making use of assisted reproduction to conceive children with the intent to raise those children jointly? Current law is unclear about the relationship between the statutes within the Family Code, which govern both the treatment of a man who provides his semen to a licensed physician for use in assisted reproduction, and the ability of any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the presumed father and child relationship. This [bill] is necessary because California trial courts are interpreting existing statutory language governing the treatment of donors of semen ?for use in insemination or in vitro fertilization of a woman other than a donor's wife to find that it precludes further examination of the presumed father and child relationship. Courts are finding it difficult to harmonize the two relevant code sections, even when doing so is in the best interest of the child, and would preserve an ongoing relationship between a child and his or her known, biological father. 2.Bill would clarify Legislature's intent regarding treatment of sperm donors SB 115 (Hill) Page 5 of ? Absent a signed agreement prior to conception, existing California law deems individuals who donate semen to a physician or licensed sperm bank for use by a woman who is not the donor's wife, as if he were not the natural father of the child thereby conceived. Family law courts have interpreted this code provision to preclude these donors from bringing an action to prove the existence or nonexistence of a parent and child relationship. This bill would provide that, notwithstanding the law governing the legal status of a sperm donor who provides semen, as specified, for use by a woman who is not his wife, any person can bring an action to determine the existence or nonexistence of a parent child relationship. The author argues that, "when the California Legislature amended the statutory language governing the treatment of the donors of semen to a licensed physician for use in [assisted reproduction] ? it did not intend to create the illogical scenario whereby individuals who are biological fathers, and known donors, but are not treated as natural fathers under one existing statute, are the sole class of individuals precluded from proving the existence of the presumed father and child relationship." Indeed, the fact that a court must deny a loving adult with a biological and emotional connection to a child from proving a parent and child relationship arguably runs contrary to California's policy of establishing paternity for all children. In a recent, unpublished case a California trial court expressed discomfort in holding that a biological father was precluded from proving a parent and child relationship. In that particular case, the petitioner and respondent had unsuccessfully tried to conceive during their relationship. At one point the petitioner donated his semen to be used by respondent, but did not sign the necessary agreement for him to be a legal parent, nor did he have any desire at the time of donation to co-parent. Subsequently, the couple reunited and the petitioner and respondent raised the child together. Ultimately the relationship fell apart, and the petitioner attempted to establish himself as the natural and legal parent of his child. The court concluded that Family Code Section 7613 precluded the petitioner from being treated as the natural father of the child and thus, from asserting his status as a presumptive parent as well. By amending the Family Code, this bill would clarify that courts may consider an action to prove the existence of a parent and child relationship by or on behalf of a donor who has SB 115 (Hill) Page 6 of ? co-parented a child. The Association of Certified Family Law Specialists, in support of this bill, claims that this clarification is consistent with existing case law. 3.Bill would affect a small class of individuals This bill is intended to affect only a small number of individuals: known donors, who did not intend to co-parent at the time of donation, but have subsequently accepted their biological children into their home and parented them in a meaningful way. This bill would allow these men to prove in court the existence of a parent child relationship, thereby subjecting themselves to the responsibilities of parentage, such as custody and child support obligations. Proving parentage also allows the child to receive inheritance and other benefits. To that end, this bill appears to be consistent with California policy, which seeks to establish paternity for all children. One could argue that existing law protects sperm donors from parental obligations when their intention was not to become a parent but only to help another conceive and that this bill may deny donors that protection. However, it is difficult to imagine a situation where a traditional donor, who lacked the desire to co-parent, would meet a presumption of parentage under California law. Courts typically require individuals to hold the child out to friends and family as his natural child, to support the child in various ways, or otherwise act as a parent. An adult with a close, family relationship, such as a family friend or an uncle, will not meet these requirements under California law. Thus, it is highly unlikely that a donor who has not played a significant role in actively raising a child would unwillingly be names a parent by a court and subjected to the rights and responsibilities of parenthood. Support : Association of Certified Family Law Specialists (ACFLS); Equality California; National Center for Lesbian Rights Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : SB 115 (Hill) Page 7 of ? AB 1349 (Hill, Chapter 185, Statutes of 2011) provided that a voluntary declaration of paternity is invalid under specified circumstances, and allow a presumed parent to bring a motion set aside the voluntary declaration within a specified amount of time. Required the court to consider specified factors in deciding whether to set aside the voluntary declaration. Provided that, in the event of a conflict between a rebuttable presumption and a voluntary declaration, the weightier considerations of policy and logic control. Provided that a sperm donor would not be considered the natural father unless otherwise agreed to in writing. SB 375 (Wright, 2011) would have allowed for any presumed father to bring a motion for genetic testing to rebut the presumption of paternity within two years after he becomes aware of facts that lead him to reasonably believe that he is not the biological father of the child. Hearing in the Senate Judiciary Committee was canceled at the author's request. SB 377 (Wright, 2011) would have invalidated a voluntary declaration of paternity that is signed by a minor if it is not also signed by the parent or guardian of the minor parent. Hearing in the Senate Judiciary Committee was canceled at the author's request. **************