BILL ANALYSIS Ó SB 115 Page 1 Date of Hearing: August 13, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair SB 115 (Hill) - As Amended: April 8, 2013 SENATE VOTE : 35-0 SUBJECT : Parent and Child Relationship KEY ISSUES : 1)GIVEN THAT THIS BILL WAS INTRODUCED IN ORDER TO SPECIFICALLY AFFECT A PENDING FAMILY LAW CASE THAT HAS NOT YET BEEN DECIDED BY ANY APPELLATE COURT, MIGHT IT BE APPROPRIATE TO PROVIDE REASONABLE TIME TO SEE WHEN AND HOW THE CASE IS ADDRESSED ON APPEAL, CONSISTENT WITH THIS COMMITTEE'S LONG TRADITION OF GENERALLY SEEKING NOT TO IMPACT ONGOING LITIGATION, ESPECIALLY WHEN AN APPELLATE COURT HAS NOT YET WEIGHED IN ON THE DISPUTED ISSUE? 2)AFTER GIVING REASONABLE TIME TO PERMIT THE JUDICIAL SYSTEM TO ADDRESS THE CASE THAT IS THE GENESIS OF THIS BILL, SHOULD CONSIDERATION BE GIVEN BY THE COMMITTEE TO POTENTIALLY CHANGE THE LAW TO SPECIFICALLY ALLOW A SPERM DONOR, WHO GAVE UP RIGHTS TO PARENT THE CHILD AT THE TIME OF DONATION BUT WHO LATER SEEKS TO QUALIFY AS A PRESUMED PARENT, TO BRING AN ACTION TO DETERMINE PARENTAGE OF HIS BIOLOGICAL CHILD UNDER CERTAIN SPECIFIED CIRCUMSTANCES? 3)WHILE THE COMMITTEE MAY DETERMINE AFTER APPROPRIATE STUDY THAT ALLOWING A SPERM DONOR TO BRING AN ACTION TO DETERMINE PARENTAGE MAY BE APPROPRIATE IN CERTAIN CASES, MIGHT THERE BE MANY UNINTENDED CONSEQUENCES FOR BOTH DONORS AND THE INTENDED PARENTS THAT SHOULD BE MUCH BETTER UNDERSTOOD AND ADDRESSED, PARTICULARLY WITH RESPECT TO ANY RETROACTIVE APPLICATION, BEFORE ANY POTENTIAL FUTURE CHANGE IN LAW MAY BE CONTEMPLATED? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS The law today distinguishes between two types of sperm donors -- known donors who plan to co-parent the child from the start, and SB 115 Page 2 more traditional sperm donors who provide their genetic material without any desire for the rights and responsibilities of parenthood. Generally, the former is presumed to be a legal parent and the latter is not. In 2011, the author's AB 1349 provided that, unless otherwise agreed to in a writing signed prior to the conception of the child, a man who donates his sperm to a licensed physician or sperm bank for use in a woman other than the donor's wife is treated as if he were not the legal father of the child so conceived. However, this provision did not specifically address the situation where the sperm donor begins with no intention of legally parenting the child, but then later potentially is found to meet the definition of a presumed parent, by living with the child and openly holding the child out as his own. This bill seeks to allow such a sperm donor, or any other person, to bring a parentage action to seek recognition of the sperm donor as the child's legal parent. This bill is brought at the behest of attorneys for a celebrity sperm donor in a highly publicized and conflicted ongoing parentage case who are seeking to change the law in order to change the law and to change the outcome in that case. In that case, the trial court has held that the child's sperm donor, who may have taken the child into his home and may have held the child out as his own, could not be considered the child's legal father because he was a sperm donor who had not agreed in writing to be a parent at the time of conception, contrary to the requirements of the author's AB 1349 of 2011. In support of the bill, the author states that the Legislature "did not intend to create the illogical scenario whereby individuals who are biological fathers, and known donors . . . are the sole class of individuals precluded from proving the existence of the presumed father and child relationship." This bill is supported by the Association of Certified Family Law Specialists, Equality California, Family Equality Council, National Center for Lesbian Rights and the Dean of the UC Irvine School of Law. However, the bill is opposed by women's rights organizations, reproductive rights organizations, and academics from UC Davis School of Law and Whittier Law School who argue that the bill will negatively affect a women's right to make reproductive and family formation choices. The bill is opposed unless amended by adoption lawyers who are concerned that the bill could have serious, unintended consequences, including allowing the intended parent to seek child support from a known sperm donor, allowing a known sperm donor to seek parental rights against SB 115 Page 3 the wishes of the child's intended parents, potentially discouraging prospective sperm donors from being willing to donate, increasing litigation costs, and reducing the number of couples willing to undertake the increased risks of pursuing this method of procreation. The bill is also opposed by many individuals, including the respondent in the ongoing parentage case, who argue that its policy harms women and LGBT couples and also inappropriately seeks to circumvent the trial court decision now on appeal. As discussed in detail in the analysis, this well-meaning bill manifestly may have profound unintended consequences affecting existing sperm donor and families. Given that and given that this bill is written to specifically address one particular dispute that is currently being addressed by the courts, this Committee may decide it is most prudent and appropriate to hold the bill for now in order to allow the judicial process to proceed for a reasonable period of time and to allow needed time for the plethora of interested stakeholders to reasonably weigh in on the many compelling, and as of yet unresolved, issues raised by the bill. Just some of these many unresolved issues include: 1) how might this bill impact existing families and upend settled family relationships; 2) should the presumed parent standard of taking the child into one's home and openly holding the child out as one's own be much better defined, with clear factors for courts to consider, vetted and developed; 3) should there be a higher standard for cases involving known donors who may more readily acknowledge the child as their own; and 4) should courts consider the child's best interest when establishing parentage? This approach is supported by the chairs of the Legislature's Women's Caucus and Lesbian, Gay, Bisexual and Transgender Caucus, who have raised serious concerns about the bill's unintended consequences and have asked the author to not move the bill forward this year in order to allow appropriate and needed time to better understand how the bill will impact women and members of the LGBT community and to "find solutions that would better the lives of all California's children and families." SUMMARY : Allows any party to bring a parentage action, regardless of whether the prospective parent was the sperm donor for the child. Specifically, this bill allows any interested party, regardless of whether he was a sperm donor to a licensed physician or sperm bank and did not agree to parent the child prior to conception, to bring an action to determine the SB 115 Page 4 existence or nonexistence of a parent and child relationship based on the presumption that the presumed parent received the child into his or her home and openly held the child out as his or her own. EXISTING LAW : 1)Establishes the California Uniform Parentage Act (UPA). Defines a parent and child relationship as the legal relationship between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. (Family Code Section 7600 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)Provides that the child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided. (Sections 7540-41.) 3)Defines a man as a presumed father if, among other things: (a) He was married to the child's mother and the child was born within 300 days of the marriage; (b) he attempted to marry the child's mother; or (c) he receives the child into his home and openly holds the child out as his own. Requires that these presumptions be applied gender neutrally. (Section 7611; Elisa B. V. Superior Court (2005) 37 Cal.4th 108.) 4)If two or more paternity presumptions conflict with one another, the presumption that is founded on the weightier considerations of policy and logic controls. (Section 7612.) 5)Provides that paternity may be established by voluntary declaration for unmarried parents, or through a civil action brought by any interested party, as specified. (Sections 7630 and 7570 et seq.) 6)Authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of a parent-child relationship in specified situations. (Section 7630.) 7)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 SB 115 Page 5 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. (Section 7613(b).) 8)Provides that a new law in the Family Code will apply retroactively, unless, among other things, the new law would substantially interfere with the rights of the parties or other interested person in connection with an event that occurred or circumstances that existed before the operative date of the new law. (Section 4.) COMMENTS : A child born during a marriage is conclusively presumed to be the child of the marriage. For a child born outside of a marriage, paternity may be established by a voluntary declaration of paternity or through a court judgment, generally considering the various legal presumptions of paternity. One of the most used presumptions provides that a person who receives a child into his or her home and openly holds the child out as his or her own is the child's presumed parent. 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. Individuals and couples are increasingly using assisted reproduction technology, which can include donor sperm, donor eggs, donor embryos, and host wombs, thereby compelling the legal concept of parentage to evolve. Use of assisted reproduction can require consideration of complicated and often competing parentage determinations. This well-meaning, but nonetheless controversial family law bill, brought on behalf one particular sperm donor who lost his parentage action at the trial court and is now appealing that decision, would allow a sperm donor who gave up parental rights at the time of conception to later be determined to be the child's legal parent. Intended Parents of a Child Born Using Assisted Reproduction Technology are the Child's Parents : Two cases have established that intended parents in assisted reproduction are the legal parents of the child so conceived. In the first case, Johnson v. Calvert (1993) 5 Cal. 4th 84, a married couple entered into a contract with a surrogate to have an embryo created with the couple's genetic material implanted in the surrogate. The SB 115 Page 6 parties had a falling out and the parents and the surrogate brought separate legal actions to be declared the unborn child's parents. The trial court consolidated the actions, determined that the married couple were the child's biological and natural parents, and terminated the visitation rights that the surrogate had obtained in an earlier temporary order. The Supreme Court affirmed, holding that when the two methods of recognizing parentage in women - genetic evidence of parentage and giving birth to the child - occur in two separate women, the woman who intended that the child be born is the child's legal mother. Five years later, a more complicated fact pattern arose in In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, but with the same ultimate result. In that case, the intended parents did not have a genetic link to the child, but instead entered into a contract with a surrogate to have a fertilized egg from donors unrelated to the couple implanted in the surrogate. Just days prior to the birth of the child, the husband filed for dissolution alleging there were no children of the marriage. The wife filed her own action to be declared the child's mother. The trial court accepted the stipulation of the surrogate and her husband that they were not the parents, but then determined that the wife was not the mother of the child and that, therefore, neither was the husband, effectively leaving the child as a legal orphan. The court of appeals reversed, writing that if a man who consents to artificial insemination of his wife with donor sperm is considered the father of the child so conceived, "there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them." (Id. at 1418.) Both of these cases make clear that, with or without a genetic link, the parties who intend to bring a child into the world are the child's legal parents. The Legislature codified this in AB 1217 (Fuentes), Chap. 466, Stats. 2011. This Bill Addresses Sperm Donors Who Do Not Choose to be a Parent at the Time of Donation But Later Seek to Change Their Minds : That same year, AB 1349 (Hill), Chap. 185, Stats. 2011, among other things, distinguished between known sperm donors who plan to co-parent the child and more traditional sperm donors SB 115 Page 7 who give their genetic material without any desire for the rights and responsibilities of parenthood for the child conceived. That bill, however, did not specifically address the situation where the sperm donor either did not intend to parent prior to conception or, regardless of intention, did not execute an agreement one way or the other prior to conception, but later develops a parental relationship with the child. This bill specifies how presumptions of parentage work in this situation. In particular, this bill allows a sperm donor who did not agree to parent at the time of conception, but who may later have a claim as a presumed parent, to prove in court the existence of a parent-child relationship, thereby subjecting themselves to the rights and responsibilities of parentage. It also allows the child's legal parent, a child support agency or any other interested individual to bring an action to establish the sperm donor's parentage, whether or not the donor wants that relationship. In support of the bill, the author writes: 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. . . . When the California Legislature amended the statutory language governing the treatment of the donors of semen to a licensed physician for use in artificial insemination or in vitro fertilization, first in 2008, and again in 2011 (AB 1349, Hill), it did not intend to create the illogical scenario whereby individuals who are biological fathers, and known donors, but 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. It was not the intent of the legislature to create an absolute bar to those fathers in establishing parentage. Yet, California trial courts are interpreting existing statutory language to arrive precisely at this SB 115 Page 8 irrational result, irrespective of the best interests of the child. Current Parentage Law on Sperm Donors : Absent a signed agreement prior to conception, existing California law deems an individual who donates 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. If the donor intends to parent the child, he must sign an agreement stating so prior to the child's conception. A donor who does not use a physician or licensed sperm bank is considered the child's parent, regardless of intention. Bill Introduced to Affect One Particular Case Now on Appeal And Legislatively Reverse the Trial Court's Decision Without Giving Reasonable Time for the Appellate Process to Address the Case : While this bill may affect a 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 - its chief proponents (and the parties who brought the idea to the author) are the attorneys involved in an ongoing case who are seeking to change the law in order to change the outcome in that case prior to the appellate process being given time to proceed. In that case, according to well-reported facts, the petitioner, actor Jason Patric, donated his semen to be used by respondent, who was his ex-girlfriend. At the time of the donation, he signed a letter stating that while he was donating this sperm, he did not intent to parent the child and wanted the arrangement to remain confidential. He may or may not have signed other papers as part of the donation. While not disputing the existence of the letter, he has argued in the media that he always intended to be the child's parent. Subsequently, after the birth of the child, the couple reunited and the petitioner and respondent may have raised the child together for a short period of time, although the respondent disputes that. Ultimately the relationship fell apart, and the petitioner attempted to establish himself as the child's legal parent. The trial court concluded that Family Code Section 7613 precluded the petitioner from having standing to assert his status as a presumptive parent because he was the child's sperm donor and did not sign an agreement to parent at the time of conception. The petitioner has appealed the trial court decision. Once the SB 115 Page 9 formal record of the trial court decision has been filed with the appellate court, the parties will have about 90 days to file their briefs. After that, the matter will be set for oral argument, with a decision due after that time. Any change in the law this year would, almost certainly, affect the outcome of the case because of the retroactive effect of new laws under the Family Code, discussed below. Mr. Patric, his lawyer and the bill's author have all appeared in the media in the last month arguing about the need for this legislation to help Mr. Patric's parentage fight in particular. The bill's opponents include many individuals who are upset about the proponents' wish to impact the particular case in question. They write: The unfortunate truth is that this bill is an overt attempt by a single person to circumvent a trial court decision that is currently pending appeal. SB 115 was introduced by a Hollywood actor who is attempting to use the California legislature to influence an ongoing custody battle currently on appeal in California courts. He donated his sperm and later sued for paternity rights to the child borne of his genetic material after having minimal contact or interaction with the child. The trial court rejected the plaintiff's assertion of paternal rights in the case at issue based on current law. This bill is the plaintiff's attempt to change the rules of the game in the middle of litigation. . . . [O]ne individual's agenda will have profound and potentially devastating outcomes for countless California families. Regardless of the underlying issues raised by the bill and their merits, it would certainly be an undesirable outcome if this bill created the precedent that wealthy or politically connected family law litigants could expect to come to Legislature for a change in law whenever they happen to lose their family law cases. This is especially true when no appellate court has yet been given the opportunity to hear the appeal. General Retroactive Effect of Legislation in Family Law and Impact on the Case Underlying This Legislation : While this bill does not specifically state that it applies retroactively, unlike other areas of law changes to the Family Code generally apply retroactively. This legislation would therefore very likely both affect the ongoing litigation that led to this SB 115 Page 10 legislation, unless the bill specifically states otherwise, as well as potentially many other families who proceeded under the law as it has been in place. The Family Code provides that, subject to specific limitations, a "new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date." (Section 4; see In re Marriage of Fellows (2006) 39 Cal.4th 179, which, in an action to recover child support, applied a new statute that barred a child support obligor from asserting the defense of laches retroactively to facts that occurred before the statute's enactment.) In fact, this section goes on to provide that if an order is made prior to the effective date of a new law, the order may be modified after the new law's effective date, based on that law. Thus, this bill will, as a general rule, be applied retroactively to affect ongoing litigation, including the case that the bill's proponents are now appealing. However, there are constitutional limits to retroactive application of a new law. In particular, a court cannot apply a statute retroactively if it impairs a vested right without due process of law. (Id. at 189.) The Family Code specifically recognizes this and provides that a court has discretion not to apply a new law if the court determines that application of it would "substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed" before the effective date of the new law "to the extent reasonably necessary to mitigate the substantial interference." (Section 4(h).) This discretionary provision allows a court, on a case-by-case basis, to prevent an injustice in the retroactive application of a new law. Thus, while the bill will, as a general rule, apply retroactively to affect ongoing litigation or to permit modification of existing court orders, a court will have the discretion not to do so if it would substantially interfere with the rights of a party. However, the general retroactivity principle makes it easier for losing family law litigants to seek relief in the Legislature. Legislation No Guarantee of Parentage : This bill does not require that a court recognize a sperm donor as a legal father. The bill permits the donor or other interested individual to bring an action to try to establish a parent-child relationship. SB 115 Page 11 Once the action is brought, the court would be required to determine if the moving party can establish that the sperm donor meets the definition of a presumed donor by having brought the child into his home and openly held the child out as his own. A number of cases over the years have opined on these requirements and provide some factors for courts to consider when making a presumed parent determination, including "whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental." (In re J.H. (2011) 198 Cal.App.4th 635, 646 (citations omitted.) However, courts still have a great deal of discretion in determining what factors to consider and what weight to give them. Even if the donor meets the definition of a presumed parent, he is not necessarily the legal parent. If two or more paternity presumptions conflict with one another, the law provides that the presumption that is founded on the weightier considerations of policy and logic controls. Thus, even if the sperm donor meets the definition of a presumed parent, he may still not be found to be the child's legal parent. It is important to note that this Committee recently passed SB 274 (Leno), which would allow a court to recognize that a child has more than two parents, if it would be detrimental to the child not to do so. Thus, if both this bill and SB 274 become law, a sperm donor could potentially be found to be a child's parent even if the child already has two legal parents. This Bill Could Inadvertently, But Likely, Upend Many Settled Family Relationships : The author and the supporters argue that this bill is intended to simply clarify existing law. They provide compelling fact patterns of men who either inadvertently or intentionally did not agree, in writing, to co-parent prior to conception, but then act as a parent in every way. These men did not terminate parental rights through a court process. They simply did not enter an agreement prior to the child's SB 115 Page 12 conception stating that they intended to co-parent. They then went on to raise their children. The proponents argue that these men should be able to have a court recognize them as parents and provide them with all the rights and responsibilities of parenthood, whether or not the mother or other parents agree. However, as drafted, this bill could inadvertently impact many families who used known sperm donors and then allowed them to develop a relationship with the child in reliance on the reasonable understanding that, under existing law, these men had given up any parental rights they may have had. These mothers could find themselves at the mercy of a man with whom they never had any intention of co-parenting. Alternatively, a donor may have developed a relationship with the child, again with no intention of parenting and again relying on existing law, only to find himself sued for child support by the mother or the child support agency. A family law professor emeritus from the University of California, Davis, writes of the potential impacts of the bill: [T]he current language of SB 115 would permit a man and other interested parties to assert his paternity even if he had received the child into his home only once, so long as he also held the child out as his natural child. This opens possibilities for severe intrusions into the woman's life and her choices about how and where the child will be raised. For controlling or abusive men and their lawyers, the opportunity (provided by the bill) would be a gift. For mothers, the emotional and legal costs of defending their autonomy and the arrangement they relied upon will be large. So, too, may be the emotional price for a child who is caught in the middle of this dispute, perhaps for years. Pernicious results would also be likely in a subset of cases in which a lesbian couple secures sperm from a known donor. So that the child will have genetic links with both women's families, the intended birth mother may use sperm donated by a male relative of her partner. At the time, no one intends that the donor, whether a friend or relative, will assume a role as the child's father. It is nevertheless likely, particularly when he is a blood SB 115 Page 13 relative, that the child will have continuing interactions with him, including at his home. It is also likely that a donor who is a male relative will acknowledge to all that the child is both his relative (e.g., a cousin or a niece or nephew) and also his natural child. The proposed statute would allow this man and other known donors to assert paternity and seek custodial rights at any time. That would most likely occur, of course, only if discord has developed between the adults. Perhaps that would occur because the couple now wishes to move away; perhaps the couple has decided to rear the child in a religion the donor dislikes; or perhaps the falling out has nothing at all to do with the child. The donor's motives would be irrelevant. Adds a clinical professor from University of California, Irvine School of Medicine and a professor at Whittier Law School: Since its adoption in 1975, Section 7613(b) has provided assurance to countless single and unmarried partnered women that the children they bear with the aid of donated sperm will not be the subject of a legal parentage dispute. Contemporaneous with his provision of donated sperm, a man is absolved of parental responsibilities while relinquishing parental rights. It is essential for both (or all three) parties to adhere to these familial assurances in order for the practice of sperm donation to continue as a viable route to parenthood. SB 115 would inject tremendous uncertainty into the harmonious lives of donor-conceived families, permitting a man to rethink and reverse his promised relinquishment well into the offspring's established childhood. Some Hypotheticals Demonstrating the Challenge of Legislating in This Area : The following hypotheticals help better explain the existing families that may, however inadvertently, be impacted by this legislation. These hypotheticals are but a few examples of the possible families that may be impacted. There are undoubtedly many more, with perhaps even more complicated facts patterns, but they all underscore the need and prudence of proceeding cautiously in this area to ensure such fact patterns are dealt with as fairly and appropriately as possible. Single mother hypothetical : Andrea decided to become a SB 115 Page 14 single parent and chooses to use sperm from her close friend Bob so that the child can have a relationship with the biological father. They do not sign an agreement to co-parent prior to conception and both understand that Bob is not intended to be the child's parent. The child is born and Bob and the child develop a close relationship. The child spends one night each week and a weekend a month at Bob's house, and Bob attends the child's preschool and later school events. He tells family and friends that the child is his biological child. The child calls him Papi. Scenario One: Andrea loses her job and is forced to go on welfare. The child support agency, on referral from the welfare agency, files a paternity case against Bob and seeks child support from him. Scenario Two: Andrea develops a temporary drug problem and the child is temporarily removed by the child welfare system. Bob seeks to be recognized as a presumed parent and given custody of the child in the dependency action. Scenario Three: Andrea is very wealthy. Bob loses his job. Bob brings a parentage action and seeks joint custody of the child, motivated in large part by his desire to collect child support from Andrea. Scenario Four: Andrea decides to move to New York for a better job. Bob does not want to have his contact with the child limited and brings a parentage action, seeking joint custody. Scenario Five: Andrea begins a relationship. The new person moves in and the child develops a very close relationship with that person, calling him (or her) Daddy (or Mama). Bob disapproves of the relationship and especially disapproves of being displaced by this person. He brings a parentage action, seeking joint custody. Lesbian couple hypothetical : Christine and Deborah are an unmarried (and not registered domestic partners) lesbian couple who choose to have a child. They use sperm from their good friend Eric. As in the first hypothetical, they do not sign an agreement to co-parent with Eric prior to conception and all understand that Eric is not intended to be the child's parent. Christine gets pregnant and the child is born. Eric develops a close relationship with him, including keeping him for occasional overnights when Christine and Deborah have to travel for work. He tells family and friends that the child is his biological child. SB 115 Page 15 The child calls him Daddy. Scenario One: Christine and Deborah have a very messy separation and Christine wants to keep the child from Deborah. She and Eric go to court to seek to establish his paternity. Alternatively, Christine and Eric execute a voluntary declaration of paternity. Deborah brings her own parentage action. Scenario Two: Eric has a religious conversation and seeks to take the child away from Christine and Deborah. He goes to court to establish his parentage. Scenario Three: Christine and Deborah split up and Christine needs money. Christine files a parentage action against Eric, seeking child support. Unmarried intended parents hypothetical : Felix and Gail are an unmarried couple who live together and decide to have a child. As a result of fertility issues, Felix donates sperm for Gail to use at their doctor's office. They do not consult an attorney, their doctor's forms are not clear and they do not enter into a parentage agreement prior to conception, although Felix and Gail intend to co-parent. The child is born and they raise the child together. When the child is three, they separate. Scenario One: Gail does not want the child to have any contact with Felix. She says that he was never an intended parent and was always just a sperm donor. He brings an action to establish paternity and seeks joint custody of their child. Scenario Two: Felix begins another relationship and refuses to support the child. Gail brings an action to establish parentage and to obtain child support. Alternatively, the child support agency brings the action on her behalf. Felix claims he was just a sperm donor and was never intended to be the child's parent. He states that while he had a relationship with Gail and had contact with the child because of that relationship, he was just a sperm donor to the child. Scenario Three: Gail begins a new relationship with a man who is violent and jealous of Felix. Gail cuts off all of Felix's contact with the child. Felix wants to protect his child. He brings a parentage action and seeks sole custody of the child. SB 115 Page 16 Changed intention hypothetical : Henry and Isabelle are good friends. She decides to have a child and he agrees to give her his sperm for insemination in the doctor's office. Neither intends for him to be the father and they do not execute an agreement to co-parent prior to conception. He attends the birth, as her good friend, and helps her take care of the infant. The child develops a serious illness, and Henry ends up moving in with Isabelle to help take care of the child together. Henry and Isabelle raise the child together for the next five years. Scenario One: Isabelle decides to move to France to be closer to her family. Henry brings an action to establish parentage and stop her move. Scenario Two: Henry moves out after five years and begins another relationship. Isabelle brings an action to establish parentage and to obtain child support. Scenario Three: Henry, who is very wealthy but does not have a will, dies of a rare genetic disorder, which is the same disorder affecting the child. Isabelle seeks the child's inheritance from Henry's estate. Bill Raises Many Other Unresolved Issues That Clearly Require Further Study by the Committee : In addition to the questions, concerns and important hypotheticals discussed above, there are a host of other significant issues that this bill raises that have not yet been resolved and that the Committee has not had adequate time to fully analyze due to the great complexity of issues raised. These issues will affect parents, children and sperm donors, not just going forward, but also families that have already made decisions in reliance on their understanding of current law. These impactful issues include: " Given some families' possible reliance on their understanding of existing law, if the law is changed, should there be a different standard for prospective application than for retroactive application? If so, should that standard still give courts some discretion to recognize parentage in certain cases, even if the parties did not enter a written agreement prior to conception, but clearly intended for the sperm donor to be the father right from the start? What if they may not have intended that at the start, but later changed their minds and the sperm donor moved in and helped raise the child, but when the couple broke up years later, the mother argued that he had SB 115 Page 17 no parental rights based on their failure to execute an agreement prior to conception? " Should cases involving known donors, where the parties did not agree to co-parent prior to conception, potentially be considered under a different, perhaps higher, standard, since the biological link to the child may mean that the donor more readily represents to others that the child is his own, even if there is no intention to parent? " Should the presumed parent standard of receiving the child into one's home and openly holding the child out as his or her own be better defined in statute? Should the other parent's actions in any way effect whether the sperm donor can be recognized as a presumed parent, for example if the mother openly states that the sperm donor is not the father? Should, as one opponent suggests, a sperm donor be able to qualify as a presumed parent only if both the parent and the donor openly hold the child out as their mutual child? Should there be a limit, again as proposed by this same opponent, on the time period by which a donor must qualify as a presumed parent, such as two years, which is the same period that exists today to rebut presumptions of parentage? What are the merits and demerits of this approach? " Regardless of whether a different standard is used to make a parentage determination, should the court be given factors to consider when making its determination? If so, what factors should be considered? Should those factors include the quantity and quality of contacts between the donor and the child, to what extent those contacts involved a parental role, and whether those contacts were permitted and encouraged by the parent(s)? If the Legislature decides to provide factors to the court to consider, should those factors apply to all presumed parent cases or just to cases involving sperm donors? " The Legislature has declared that there is a compelling state interest in establishing paternity for all children. Parentage determinations generally only consider the rights and interests of parents, not the interests of children. (The sole exception is the multiple parent possibility in SB 274 (Leno) that this Committee passed in SB 115 Page 18 June.) Should the best interest of the child be a factor to be considered by the court when making a parentage determination? Should parentage be established even if it not in the best interest of the child to do so? How, if at all, should the child's best interest affect either a parent's or a donor's parentage rights? If a consideration of the child's best interest applies, should it only apply when making a presumed parent determination in the case of sperm donors? In all cases? " Does an agreement not to parent -- or a failure to execute an agreement to parent -- signed by a sperm donor prior to conception amount to a waiver of parental rights? Is this the correct result if the sperm donor did not understand what he needed to do to protect his parental rights? Should there be a standardized Judicial Council form required for all sperm donors and intended parents, which correctly spells out the parties' legal rights? Should there be court action required to accept this "waiver" of parentage? Should such a waiver be sufficient to prevent a presumed parent action later, regardless of the subsequent action of the parties? Is this the right result if the parties live together and raise the child together? " How should parentage and presumed parentage issues apply to egg donors and surrogates? Is there any reason to treat egg donors and surrogates differently from sperm donors? Should the law be clarified to ensure equal treatment of all sperm donors and egg donors, both intended parents and those who do not indent to parent, as well as surrogates? Should egg donors and surrogates be permitted to establish parentage under the presumed parent statute, even if they did not intend to parent at the time of conception, but later meet the criteria for being presumed parents? Should the result change if the intended parents allow contact with a donor or a surrogate, with the understanding that the donor or surrogate would never be considered a presumed parent? " What about sperm donors who do not intend to parent, but do not use a physician or a licensed sperm bank? Those donors are automatically parents under existing law. Is that always appropriate, particularly when the donor did SB 115 Page 19 not understand the law and assumed he would not be considered the child's legal father? Should that potentially be changed? Or would that open up the door to allow some men to avoid the responsibilities of fatherhood? Is that in the best interests of children? " If sperm donors who waive their rights to parentage at the time of conception are later allowed to become presumed parents, could a parent whose rights have been terminated by a court later qualify as a presumed parent? While California courts have said no (see, e.g., In re Jerred H. (2004) 121 Cal.App.4th 793; In re Cody B. (2007) 153 Cal.App.4th 1004), could passage of this bill make such an outcome more probable? Given that this bill is written to specifically address one particular dispute that is currently being evaluated by the courts, and given the significant, potentially unintended, impacts this bill, as drafted, could have, as well as the many unresolved issues noted above, this Committee may wish to hold the bill for now in order to permit the court system reasonable time to continue its process, to allow needed time for interested stakeholders to discuss and debate the many issues raised by the bill, and, most importantly, to allow the Committee and its counsel to have the time needed to research and evaluate the many complex and weighty policy and legal issues triggered by this measure. This approach is favored by the chairs of the Legislature's Women's Caucus and Lesbian, Gay, Bisexual and Transgender Caucus, who have raised concerns about the bill's potentially many unintended consequences and have asked the author to not move the bill forward this year in order to allow more time to better understand how the bill will impact women and members of the LGBT community and to "find solutions that would better the lives of all California's children and families." ARGUMENTS IN SUPPORT : In support of the bill, Equality California and the National Center for Lesbian Rights state: SB 115 clarifies that any presumed parent has standing to establish parentage if they have lived with the child and have held the child out as their own, even if that presumed parent technically meets the definition of a sperm donor under California law. Although the Family Code does not SB 115 Page 20 explicitly preclude - and was not intended to preclude - men who meet the definition of a sperm donor from establishing their parentage if they would otherwise meet the definition of a presumed parent, at least one court has held that a man who is a sperm donor has no standing to establish his parentage, even if he has lived with the child, acted as the child's father, and is the child's biological father. This bill only clarifies that a man who is a sperm donor may file an action to establish his parentage under Family Code Section 7611(d) if he has received the child into his home and held the child out as his own child - in each case, the court would then decide whether he should be recognized as a legal parent or as a sperm donor, depending on the facts of the case. This bill will not allow any sperm donor to seek to establish his parentage. It will only apply in situations where the man who could be considered a sperm donor has lived with the child and has held himself out as the child's father. The other parent or parents would need to invite him into the child's life by allowing him to live with the child in order for this presumption of parentage to arise. This could occur when the man was always intended to be a father but happens to meet the definition of a sperm donor under California law, or where the original intent was for him to be a donor but after the child was born, the parents began treating him as a parent and allowing him to live with the child. In these situations, it is appropriate for a court to decide whether the man should be treated as a legal parent or a sperm donor, based on the facts of each individual case. Dean Erwin Chemerinsky of the UC Irvine School of Law adds: In this day and age, where so many children are born outside of wedlock, and where people often have to resort to assisted reproduction in order to have children, it is important that the law be written in a way to insure that the parent-child relationship is not infringed upon because of a mere technicality in the law, or due to some oversight on the part of the legislature. . . . The existing statute allows a child's mother to simply cut off the relationship between father and child if she wishes to do so, by the language of the [existing] statute. I do SB 115 Page 21 not believe that this could ever have been the intent of the legislature. . . . The proposed revision [in the bill] . . . allows the biological father who used assisted reproduction technology to bring about the birth of his own child with an unmarried partner to seek parentage, provided that he has held the child out as his own and received the child into his home. This bill must be implemented to protect the rights of fathers in this situation, a relationship which has been accorded special status in the law. ARGUMENTS IN OPPOSITION : California NOW vehemently opposes the bill, arguing that it "strips the right to contract from women who seek to form family units without men. Make no mistake, this is not a bill based on a partnership model of the male-female relationships, where each is born free, equal in rights and dignity, entitled to equal protection of the law. Instead, SB 115 is based on one simple premise - the right of males to control ownership over any 'product' produced by their sperm, irrespective of the intent or desires of the woman/women involved." The organization also takes great exception to Dean Chemerinsky's support letter, writing that it exhibits a "hetero-normative and male dominance based attitude regarding women and lesbian couples." Planned Parenthood Affiliates of California (PPAC) argues that the bill severely compromises "the wishes of single women and couples seeking to build[] a family via sperm donation." PPAC believes the bill is extremely broad and "opens the door to contentious and after-the-fact litigation, creating the possibilities for severe intrusions into a woman's life, her ability to parent and her choice about how and where the child will be raised." PPAC writes: [E]very person should be able to decide when and how they have children and build a family. This bill would make women and same sex couples who rely on insemination to create their families vulnerable, as a sperm donor would not be legally beholden to previous written agreements regarding parentage. We do not believe it is in the best interest of the child or family to disregard these predetermined boundaries. The California Cryobank strongly opposes the bill because it SB 115 Page 22 "fundamentally shifts the nature of the sperm donor and recipient relationship" and creates a "potential devastating impact on thousands of donor conceived families." The organization writes: We support a mans right to coparent his offspring; however, current law expects an unmarried man who provides his sperm to a physician or sperm bank to establish a coparenting agreement prior to the conception of the child. If a man has an intention of coparenting a child created from his sperm whether in a sexual relationship or not with the biological mother, the law should uphold the need for a legal agreement when that child is conceived through assisted reproductive technology. The failure to create that agreement is not the fault of California, the physicians who treated the recipient or the recipients themselves, the sperm bank who processes the specimens, nor should it be a legislative matter for California to create new laws for that class of people who failed to abide by existing law, especially when current law is already protecting tens of thousands of families. Those who go through the time, effort and expense of using reproductive technologies to conceive a child have ample time to consider their coparenting relationship and establish a legal binding document. This bill is also opposed by numerous individuals, including the mother in the trial court case discussed above. They argue that this bill is an "overt attempt by a single person to circumvent a trial court decision that is currently pending appeal." They also argue that the bill will uniquely expose women and LGBT couples to "the chronic threat of having their family autonomy challenged by a sperm donor who had no intention of co-parenting at the time of donating sperm," but who later changes his mind and harasses and causes emotional turmoil to the child's parent or parents. The National Council of Jewish Women/Los Angeles adds that if the bill passes, "the consequences will reach far beyond the individuals involved in this case. Women and families who rely on assisted reproductive services, and children who are born into those families, past, present and future, will be vulnerable to protracted legal battles and unchecked interference with their intended family structure." SB 115 Page 23 The Academy of California Adoption Lawyers and the Academy of California Family Formation Lawyers oppose the bill unless amended. While they support the bill's intent to "not preclude legitimate presumed fathers from filing a presumed father claim solely because they may be a sperm donor," they are concerned that the bill, as now drafted, "would allow any sperm donor to pursue a presumed father claim and is being sponsored by the lawyers for one of the parties in a highly contested case." As a result, they request that the bill be held in committee and referred to interim study. While not opposed, representatives from Pacific Reproductive Services and the Surrogacy Law Center write separately to raise concerns about the bill's unintended consequences and to request that the bill be made a two-year bill to allow time to study the issues raised by the bill and consider "the potential of unintended harm to hundreds of donors and the families with children conceived with donor sperm and eggs." NARAL Pro-Choice California raises similar concerns and requests that the bill not be moved at this time. REGISTERED SUPPORT / OPPOSITION : Support Association of Certified Family Law Specialists Equality California Family Equality Council National Center for Lesbian Rights Dean Erwin Chemerinsky (UC Irvine, School of Law) Opposition Academy of California Adoption Lawyers (unless amended) Academy of California Family Formation Lawyers (unless amended) California Cryobank California NOW National Council of Jewish Women/Los Angeles Planned Parenthood Professor Carol Bruch (UC Davis, School of Law) Professor Judith Daar (Whittier Law School) (unless amended) Many individuals Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 SB 115 Page 24