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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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"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."
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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
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