BILL ANALYSIS                                                                                                                                                                                                    



                                                                            



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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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