BILL ANALYSIS Ó
AB 960
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ASSEMBLY THIRD READING
AB
960 (Chiu)
As Amended April 28, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+---------------------+---------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, Cristina | |
| | |Garcia, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
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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 (egg) 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.
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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.
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 ii) 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 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 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.
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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.
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.
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.
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.
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.
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FISCAL EFFECT: None
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), Chapter 564, Statutes of
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.
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
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
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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 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
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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, this 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,
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unless they agree otherwise - whether in writing or though other
evidence - prior to conception.
This is this 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), Chapter 636, Statutes of 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 -
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:
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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 this bill makes to egg and sperm donors. In addition, this
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.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0000262
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