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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