BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 115|
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THIRD READING
Bill No: SB 115
Author: Hill (D)
Amended: 4/8/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-1, 4/16/13
AYES: Evans, Walters, Corbett, Jackson, Leno, Monning
NOES: Anderson
SUBJECT : Family Code: Parent and child relationship
SOURCE : Author
DIGEST : This bill clarifies that notwithstanding current law,
any interested party may bring an action for the purpose of
determining a parent and child relationship at any time.
ANALYSIS :
Existing law:
1.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)
2.Provides that a man is presumed to be the natural father of a
child in any of the following instances:
A. He and the child's mother are married to each other when
the child is born, or the child is born within 300 days
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after the marriage is terminated by death, annulment,
declaration of invalidity, or divorce;
B. 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
C. 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))
1.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))
2.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))
3.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)
4.Provides that a donor of semen to a licensed physician or
sperm bank for use in 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 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 allows any interested party, regardless of treatment
under the law as a sperm donor to a licensed physician or sperm
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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.
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
by a voluntary declaration of paternity or through another legal
presumption of paternity. (Fam. Code Sec. 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
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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.
Comments
According to the author's office:
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/her known, biological
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father.
Prior Legislation
AB 1349 (Hill, Chapter 185, Statutes of 2011) provided that a
voluntary declaration of paternity is invalid under specified
circumstances, and allowed 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; and 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 cancelled 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 cancelled at the
author's request.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/16/13)
Association of Certified Family Law Specialists
Equality California
National Center for Lesbian Rights
AL:ej 4/18/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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