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)



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          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. 
                                                                      



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                                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  
                                                                      



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          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
             
                                                                      



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          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  
                                                                      



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          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  :
                                                                      



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          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.

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