BILL ANALYSIS Ó
AB 960
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Date of Hearing: May 5, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 960
(Chiu) - As Amended April 28, 2015
SUBJECT: Parentage: assisted reproduction
KEY ISSUE: SHOULD A SPERM DONOR, WHO DOES NOT INTEND TO PARENT
the CHILD CONCEIVED as the result of such donation, NOT BE
CONSIDERED A PARENT, EVEN IF THE INSEMINATION OCCURS WITHOUT THE
ASSISTANCE OF A DOCTOR OR SPERM BANK?
SYNOPSIS
For individuals or couples using assisted reproduction to
conceive children, establishing parentage often requires a
review of the parties' intent at the time of conception. This
bill, jointly sponsor by Equality California, the National
Center for Lesbian Rights and Our Family Coalition, seeks to
make the rules regarding parentage more uniform for those
families using donated sperm or egg, and ensure that intended
parents, and sperm and egg donors who do not intend to parent,
are recognized as such by the law. In particular, this bill
treats intended parents who use donated sperm the same,
regardless of whether they are married or not. It also treats
donors who do not intend to parent the same, regardless of
whether the insemination occurs with help of a doctor/sperm
bank, or not. Finally the bill updates optional, statutory
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forms that help clarify the various parties' intentions,
consistent with the other changes that the bill makes.
The author writes that these updates to the law for intended
parents and donors are necessary to "recognize that families are
formed in many ways, and all are equally deserving of
protection." This bill is supported by the American Civil
Liberties Union and LGBT organizations. It has no reported
opposition.
SUMMARY: Makes more uniform rules regarding recognition of
parentage for children conceived using donated sperm or eggs for
intended parents and for donors. Specifically, this bill:
1)Provides that if a woman conceives through assisted
reproduction with semen, ova or both donated by someone other
than her spouse, with the consent of the other intended
parent, that other intended parent is treated as if he or she
were the natural parent of the child. Requires that the
intended parent's consent be in writing, signed by the
intended parent and the woman conceiving.
2)Removes the requirement that, in order for a sperm donor not
to be considered the father of a child thereby conceived, a
doctor must be used for the assisted reproduction. Provides
instead that if sperm is donated to someone other than the
donor's spouse:
a) If a doctor is used in the assisted reproduction, the
donor is treated as though he were not the parent, unless
otherwise agreed in a writing signed prior to conception by
the donor and the woman.
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b) If a doctor is not used in the assisted reproduction,
the donor is treated as though he were not the parent if
either (i) the donor and the woman agreed in a writing
signed prior to conception that he would not be a parent;
or (2) a court finds satisfactory evidence, prior to
conception, that the donor and the women intended to
conceive through assisted reproduction and that both the
donor and the woman did not intend for the donor to be a
parent.
3)Provides that the donor of ova (egg) for use in assisted
reproduction by a woman other than the donor's spouse or
nonmarital partner is treated as if she were not the natural
parent of the child thereby conceived, unless the court finds
satisfactory evidence that the donor and the woman intended
for the donor to be a parent.
4)Revises the optional California Statutory Forms for Assisted
Reproduction based on the changes set forth in #s 1) and 2)
above.
5)Creates a new optional form for "Intended Parents Using a
Known Sperm or Egg Donor to Conceive a Child" for those
parties wishing to establish that the sperm and/or egg donors
are not intended to be the parents of the child.
EXISTING LAW:
1)Establishes the California Uniform Parentage Act. 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
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references are to that code.)
2)Defines "assisted reproduction" as conception by any means
other than sexual intercourse. Defines "assisted reproduction
agreement" as a written contract that includes a person who
intends to be the legal parent of a child born through
assisted reproduction and defines the terms of the
relationship between the parties to the contract. (Family
Code Section 7606.)
3)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.)
4)Provides that the spouse of a woman who, with the consent of
her spouse, conceives through assisted reproduction with the
sperm of a man other than her spouse, is treated in law as
though he or she is the child's natural parent. Requires that
the spouse's consent be in writing and signed by both spouses.
(Section 7613(a).)
5)Provides that a donor of semen to a licensed physician or
sperm bank for use in assisted reproduction of a woman other
than the donor's spouse is treated in law as if he were not
the natural parent of the child thereby conceived, unless
otherwise agreed to in a writing signed by the donor and the
woman prior to the conception of the child. (Section
7613(b).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
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COMMENTS: Legal parenthood can be established in a number of
different ways. A person is conclusively presumed to be the
parent of a child if he or she was married to, or in a
registered domestic partnership with, and cohabitating with the
child's parent, except as specified. A person who receives a
child into his or her home and holds the child out as his or her
own is also presumed a parent of the child. A person who signs
a voluntary declaration of paternity is presumed to be the legal
parent of a child. Most recently, SB 274 (Leno), Chap. 564,
Stats. 2013, allowed a court, where there are more than two
people who have established claims or presumptions of parentage
under existing California law, to recognize more than two
parents, but only if it would be detrimental to the child not to
do so. For couples using assisted reproduction to conceive
children, establishing parentage often requires a review of the
parties' intent at the time of conception. This bill seeks to
clarify and simplify those rules to ensure that intended
parents, as well as sperm and egg donors who do not intend to
parent, are recognized as such by the law.
The author explains the bill as follows:
AB 960 updates California's assisted reproduction laws to
ensure that all couples are equally protected by law to grow
their families in California. Today, many families conceive
children through assisted reproduction and need equal
protection under the law. Currently the lack of legal
protections places parents using assisted reproduction and
their children at risk.
California law does not recognize unmarried couples using
assisted reproduction with a donor as parents, and limits this
protection to married couples, even though many unmarried
couples conceive children in this way.
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California law also only recognizes that sperm donors are not
legal fathers when a doctor or sperm bank is involved.
However, many parents, including many same-sex parents,
transgender parents, and intended single parents, use at home
insemination to conceive. Many families simply cannot afford
to conceive using a sperm bank or doctor, which can costs
hundreds or thousands of dollars per month. These families
are left completely unprotected, and their sperm donors are
treated as biological fathers under the law.
AB 960 also provides clear direction for how egg donors should
be treated under California law. California statutes
currently do not explicitly address egg donors; instead
provisions in the Family Code addressing fathers are applied
to mothers.
California needs to update its own laws to recognize that
families are formed in many ways, and all are equally
deserving of protection.
Intended Parents of a Child Born Using Assisted Reproduction
Technology are the Child's Parents. Two seminal California
cases have established that intended parents using 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 parties had a falling out, and the
intended 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 was 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
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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 for
surrogacy arrangements in AB 1217 (Fuentes), Chap. 466, Stats.
2011.
Current Parentage Law on Sperm Donors and its Difficulties for
Families. Today California law treats sperm donors differently
depending on whether the intended parents are married and on
whether the assisted reproduction occurs with the help of a
doctor/sperm bank, or not. Absent a signed agreement prior to
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conception, existing California law deems that 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 treated as the child's parent, regardless
of his stated intention. As a result, parties are required to
spend hundreds or thousands of dollars for doctor or sperm bank
assistance in order to ensure that the intended parents' and the
donors' intents are recognized.
This is not a problem for egg donation, where medical
intervention is required to complete the donation. However for
sperm donation, the reality is that many woman or couples trying
to conceive a child with the help of a known sperm donor avoid
any medical expense and inseminate at home without use of a
doctor or a sperm bank. As long as no one challenges this,
there are likely no complications. But if something happens,
significant legal problems can arise for both the donor and the
intended parents. For example, if the mother ends up on public
assistance, the donor, who will likely be legally recognized as
the child's parent, may be responsible for child support.
Likewise, if the donor changes his mind and wants to have more
involvement in the child's life, he may be able to get custody
of the child, even against the wishes of the intended parents.
This Bill Seeks to Have Similar Rules Apply to Married and
Unmarried Couples and to Those Who Use Medical Assistance and
Those Who Do Not. This bill seeks to streamline and simplify
rules regarding parentage in assisted reproductions cases
involving both egg and sperm donors and ensure that intended
parents are legal parents and donors are donors by:
1.Allowing an unmarried couple using a sperm donor to conceive a
child to ensure that the intended parent who is not giving
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birth is the child's legal parent from the moment of the
child's birth. This will help immediately effectuate the
intentions of unmarried couples and provide them and their
children immediate recognition.
2.Making provisions gender neutral so that a spouse in a
same-sex marriage will be considered the parent of a child
conceived through egg and/or sperm donation to her spouse, if
that spouse consents. While a pre-conception writing is
required to demonstrate that consent, this bill no longer
requires that the doctor participate in that process (see 5.,
below).
3.Clarifying that an egg donor, who is not the spouse or
nonmarital partner of the woman conceiving with the donation,
is not the parent unless the courts finds sufficient evidence
that she intended to be the parent. This provision codifies
the California Supreme Court's holding in K.M. v. E.G. (2005)
37 Cal.4th 130, in which the court recognized that a woman who
provided her ova to her partner with the intention of
conceiving children together was the parent of the twins so
conceived. In addition, this is generally consistent with the
treatment of sperm donors.
4.Continuing existing law that a sperm donor donating to a woman
other than his spouse, using a doctor or licensed sperm bank,
is considered a parent unless he and the woman sign an
agreement otherwise prior to conception. Thus, the sperm
donor donating through a doctor or a sperm bank is not the
father, unless he agrees otherwise in writing.
5.Creating basically the opposite standard for sperm donors who
do not use a doctor or sperm bank -- they may be parents
unless they agree otherwise prior to conception. Given the
complexities of parentage laws and parentage presumptions, the
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bill rightly does not provide that these men are definitely
parents, which could exclude other legal or presumed parents.
Instead, the bill states that if a doctor or sperm bank is not
used, these donors are only treated as donors -- and not
parents -- if either (a) the donor and the woman agreed in a
writing signed prior to conception that he would not be a
parent; or (b) a court finds satisfactory evidence, prior to
conception, that the donor and the women intended to conceive
through assisted reproduction and that both the donor and the
woman did not intend for the donor to be a parent. Thus,
these donors are most likely parents, unless they agree
otherwise -- whether in writing or though other evidence --
prior to conception.
This is the bill's most significant change to the law. Today
donors who do not use a doctor are very likely to be
considered parents, regardless of the parties' intent. This
change is designed to effectuate two important purposes.
First, it will give clear instructions on how to legally
recognize parties' intentions with respect to parentage.
Parties who want to be parents can follow the rules to be
recognized as such, and donors who want to be donors can do
the same. Second, it will allow prospective parents and
donors, who want to remain donors, to follow clear rules and
conceive at home using donated sperm, without the expense of a
doctor or a sperm bank, which today's law requires.
Legislation Last Year Created Optional Statutory Forms to Assist
Intended Parents and Donors Using Assisted Reproduction and This
Bill Clarifies and Expands Those Forms. Last year, AB 2344
(Ammiano), Chap. 636, Stats. 2014, created optional forms to
allow intended parents to state, in writing, their intention to
parent a child being conceived through use of assisted
reproduction and also to let donors state their intention not to
parent -- basically to effectuate the requirement for evidence
of the parties' intent required by the sperm and egg donation
statute, discussed above. These forms are strictly optional --
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intended parents may evidence their intent using any other
writing or other evidence, as provided. Moreover, because
parentage laws can be very complicated, the forms do not -- nor
can they -- disestablish the parentage rights of any other
person or affect other presumptions of parentage. They just
evidence the intent of the parties executing the forms.
The forms created last year address the following situations:
1. Married spouses who are using assisted reproduction to
conceive and one partner will be giving birth.
2. Unmarried, intended parents using sperm donated from one
of the intended parents.
3. Intended parents conceiving a child with eggs donated
from one of them, while the other will give birth.
This bill updates the existing forms consistent with the changes
that the bill makes to egg and sperm donors. In addition, the
bill creates a new form, entitled "Intended Parent(s) Using a
Known Sperm and/or Egg Donor(s) to Conceive a Child," designed
to help intended parents who are using a known sperm and/or egg
donor and do not wish for the donor to be a parent. This form
is designed to help those families who use a known donor who
does not intend to be a parent, but choose to perform the
assisted reproduction without aid of a doctor or a sperm bank.
General Retroactive Effect of Legislation in Family Law. 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 could
therefore affect families today, provided they meet the
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requirements of the proposed legislation.
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.
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 and
could result in a change of the status of intended parents and
donors, a court will have the discretion not to do so if it
would substantially interfere with the rights of a party, who
may have already established parentage or non-parentage based on
existing law.
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ARGUMENTS IN SUPPORT: Supporters write that that this bill
allows "unmarried people using assisted reproduction to be fully
recognized as parents on the same terms as married parents" and
that the bill "modernizes California law to recognize that
families are formed in many ways and that all families are
equally deserving of protection."
REGISTERED SUPPORT / OPPOSITION:
Support
Equality California (co-sponsor)
National Center for Lesbian Rights (co-sponsor)
Our Family Coalition (co-sponsor)
American Civil Liberties Union of California
California LGBT Health & Human Services Network
Los Angeles LGBT Center
Rainbow Community Center of Contra Costa County
Transgender Law Center
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334