BILL ANALYSIS                                                                                                                                                                                                    Ó



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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