BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 960 (Chiu)
Version: June 19, 2015
Hearing Date: July 7, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Parentage: assisted reproduction
DESCRIPTION
This bill would provide that the donor of semen provided to a
licensed physician or to a licensed sperm bank for use in
assisted reproduction shall be treated as if he were not the
natural parent of a child thereby conceived, unless otherwise
agreed to in a writing prior to the conception of the child.
This bill would also provide, if the semen is not provided to a
licensed physician or a licensed sperm bank for use in assisted
reproduction by a woman other than the donor's spouse, the donor
shall be treated in law as if he were not the natural parent of
the child if either: (1) the donor and the woman agreed in a
writing prior to conception that the donor would not be a
parent; or (2) a court finds by clear and convincing evidence
that the child was conceived through assisted reproduction and
that, prior to the conception of the child, the woman and the
donor had an oral agreement that the donor would not be a
parent.
This bill would provide that the donor of ova for use in
assisted reproduction is treated as if she were not the natural
parent of a child thereby conceived unless the court finds
satisfactory evidence that the donor, and the woman, intended
for the donor to be a parent. This bill would also create a new
form for assisted reproduction, consistent with the above
provisions.
BACKGROUND
AB 960 (Chiu)
Page 2 of ?
It is the policy of the State of California to establish
paternity for all children. The establishment of paternity
provides children with equal rights and access to benefits such
as health insurance, child support, and inheritance. (Fam. Code
Sec. 7570.) Under existing law, a child born during a marriage
to a wife who lives with her husband is conclusively presumed to
be the child of the marriage. (Fam. Code Sec. 7540.) For a
child born outside of a marriage, paternity may be established
by a voluntary declaration of paternity or through another legal
presumption of paternity. (Fam. Code Secs. 7573, 7611.) 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. (Fam. Code Sec. 7612.)
For most heterosexual couples, conception is achieved with the
woman's own eggs and the sperm of her male partner, making
parental identity straightforward. However, individuals and
couples are increasingly using assisted reproduction technology,
which can rely upon donor sperm, donor eggs, donor embryos, and
host wombs, thereby requiring the legal concept of parentage to
evolve.
Generally, donors of genetic material are treated under law as
though they are not the parents of a child conceived from that
material. For example, California's Family Code treats sperm
donors who are not married to the woman who conceives using the
donor's sperm as "if he were not the natural father of the child
thereby conceived, unless otherwise agreed to by the woman and
donor in writing prior to conception of the child. (Fam. Code
Sec. 7613(b).) In most of these cases, the law instead looks to
the "intended parents," as defined by the California Supreme
Court in Buzzanca v. Buzzanca (1998) 61 Cal.App.4th 1410, which
held that, regardless of who provides the eggs, sperm or uterus,
the intended parent(s) are "the first cause, prime movers, of
the procreative relationship." (Id. at 1424.) Therefore, a
parental relationship is often established when medical
procedures are initiated and consented to by the intended
parent(s), even in the absence of any biological relationship
between them and the child(ren) created. In other situations,
courts will look to an adult who has functioned as a parent to
the child, and determine whether he or she fits an existing
presumption under California law.
AB 960 (Chiu)
Page 3 of ?
The definition of what constitutes a family, or how a family is
created has been the source of legal tension which the
Legislature has sought to address. AB 1349 (Hill, Ch. 185,
Stats. 2011) distinguished between known sperm donors who
planned to co-parent with the mother and more traditional sperm
donors who gave their genetic material without any expectation
of parenting the child conceived. In 2013, the Legislature
enacted AB 1403 (Committee on Judiciary, Ch. 510, Stats. 2013)
to update the Uniform Parentage Act (UPA) by codifying case law
which has applied presumptions of parentage neutrally with
regards to gender, and make the Act's provisions gender neutral
where appropriate. SB 115 (Hill, 2013) sought to clarify how
presumptions of parentage work in situations where an individual
is both a presumed father and a sperm donor. AB 2344 (Ammiano,
Ch. 636, Stats. 2014) created three optional forms to allow
intended parents to state their intention, in writing, to parent
a child conceived with the use of assisted reproduction. Those
forms are sufficient to satisfy the requirement of a "writing"
under law.
This bill seeks to give further clarity to parentage and
assisted reproduction in California by creating uniform rules
for intended parents, whether or not they are married, and by
treating sperm and egg donors who do not wish to parent the same
under the law. This bill would also update the optional,
statutory assisted reproduction forms to be consistent with the
provisions of this bill.
CHANGES TO EXISTING LAW
Existing law , the California Uniform Parentage Act (UPA),
defines a parent and child relationship as the legal
relationship existing between a child and the child's natural or
adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations. The law provides
that a parent and child relationship includes the mother and
child relationship and the father and child relationship. (Fam.
Code Sec. 7600 et seq.)
Existing law provides that a person is a presumed parent if,
among other things: (1) he or she was married to the child's
mother and the child was born within 300 days of the marriage;
(2) he or she attempted to marry the child's mother; or (3) he
or she holds the child out as his or her own. (Fam. Code Sec.
7611.)
AB 960 (Chiu)
Page 4 of ?
Existing law requires that the paternity presumptions be applied
gender neutrally. (Elisa B. v. Superior Court (2005) 37 Cal.4th
108.)
Existing law provides that, if two or more paternity
presumptions conflict with one another, the presumption that is
founded on the weightier considerations of policy and logic
controls, and further provides that a presumption of parentage
is rebutted by a judgment establishing parentage of the child by
another person. (Fam. Code Sec. 7612.)
Existing law provides that paternity may be established by
voluntary declaration for unmarried parents, or through a civil
action brought by any interested party, as specified. (Fam.
Code Secs. 7630, 7570 et seq.)
Existing law 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. (Fam. Code
Sec. 7606.)
Existing law provides that the spouse of a woman who, with the
written consent of her spouse, conceives through assisted
reproduction under the supervision of a licensed physician and
with the consent of her spouse, 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. (Fam. Code Sec. 7613(a).)
Existing law 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. (Fam. Code Sec.
7613(b).)
This bill would provide 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, so long as the
AB 960 (Chiu)
Page 5 of ?
intended parent's consent is in writing, signed by the intended
parent and the woman conceiving prior to conception.
This bill would remove 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,
and would instead provide the following:
if sperm is donated to someone other than the donor's
spouse and 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; and
if sperm is donated to someone other than the donor's
spouse and a doctor is not used in the assisted
reproduction, the donor is treated as though he were not
the parent if either (1) 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 by clear and convincing
evidence that the child was conceived through assisted
reproduction and that, prior to the conception of the
child, the woman and the donor had an oral agreement that
the donor would not be a parent.
This bill would provide that the donor of ova for use in
assisted reproduction by a woman other than the donor's spouse
or non-marital 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.
This bill would revise the optional California Statutory Forms
for Assisted Reproduction and create 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.
COMMENT
1.Stated need for the bill
According to the author:
AB 960 updates California's assisted reproduction laws to
ensure that all couples are equally protected by law to grow
AB 960 (Chiu)
Page 6 of ?
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.
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.
2.Would apply parentage uniformly based on intent prior to
conception and not marital status
The Uniform Parentage Act outlines how individuals establish a
parent and child relationship, including establishing that
relationship with children conceived by means of assisted
reproduction. Traditionally, the law has offered more legal
protection to families with married parents than families with
unmarried parents. Equality California, sponsor of this bill,
explains:
California law currently does not protect unmarried couples
using assisted reproduction, and only allows married couples
using assisted reproduction to both be automatically
recognized as parents from the moment of birth. This means,
AB 960 (Chiu)
Page 7 of ?
for example, that when an unmarried different-sex couple with
infertility challenges conceives through donor insemination,
the father is not recognized as a parent from the moment of
birth, and may have no protections if the mother dies in
childbirth. An unmarried female same sex couple has the same
problem. If they conceive using donor insemination, the
non-biological mother will not be on the birth certificate and
will not be able to put their child on her insurance when the
child is born.
This bill would instead recognize the intent of the couple
wishing to conceive and the donor by providing that the intended
parent is treated as if he or she were the natural parent of the
child, so long as the intended parent's consent is in writing,
signed by the intended parent and the woman conceiving prior to
conception. Likewise, the donor is treated as though he were
not the parent, unless otherwise agreed to in a writing signed
prior to conception by the donor and the woman. In support, API
Equality - Northern California, writes, "This bill [would]
modernize California's assisted reproduction laws to ensure that
all parents are equally protected by law to grow their families
in California. This bill would allow unmarried people using
assisted reproduction to be fully recognized as parents on the
same terms as unmarried parents."
Rainbow Community Center of Contra Costa County, also in
support, writes "Given the economic realities, legal hurdles,
and societal barriers facing LGBTQ2S people in building
families, we advocate for any systemic support that can ease the
journey to parenthood that so many people - regardless of
sexuality, gender identity, and relationship status - dream of.
? [This bill] helps build additional support and protection for
all families."
3.Would eliminate certain financial barriers to assisted
reproduction
Regardless of intent, donors who do not use a doctor are very
likely to be considered parents because the law generally does
not exempt donors unless they use a physician or licensed sperm
bank. Equality California, sponsor, writes:
California law does not currently protect families who use
at-home insemination with a known donor. Many families choose
to inseminate at home without medical supervision because
AB 960 (Chiu)
Page 8 of ?
medical supervision can cost thousands of dollars. For
example, a transgender father and his female partner decide to
conceive a child using his brother as their donor so that both
parents can be biologically related to their child. They
conceive at home because costs of using a clinic are so high.
Under current law, the donor may be a legal parent and can be
required to pay child support by the state. Similarly, lesbian
couples conceiving through donor insemination at home with a
known donor are not protected. If the donor decides to seek
custody, he may be recognized as a parent.
Accordingly, this bill would remove the requirement that
families seeking to conceive must use a licensed physician or
sperm bank in order to ensure that a donor will not be
considered a parent. Under this bill, the donors would, by
default, not be considered natural parents. If the parties
intend for a donor to be considered a parent, that intent must
be agreed to in writing prior to conception. Our Family
Coalition, sponsor, writes "Ultimately, [we believe] this bill
is about protecting children. Many of our families continue to
be vulnerable or unable to conceive until they can afford to go
to a medical clinic, which is heartbreaking and unjust. This
bill will create legal stability and protection for children of
low income families who can't afford the high costs of a
fertility clinic."
In support, the American Society for Reproductive Medicine
writes "family formation is changing in light of new
technological advances, creating greater options, and the law
needs to be refined to reflect these changes. [This bill] will
update California law to reflect how families are created, with
and without the use of assisted reproductive technology services
provided by physicians."
4.Would clarify how egg donors are treated under law
This bill would clarify that an egg donor, who is not the spouse
or non-marital partner of the woman conceiving with the donated
ova, is not the parent unless the court finds sufficient
evidence that the donor intended to be a parent. This is
consistent with both treatment of sperm donors and with K.M. v.
E.G. (2005) 37 Cal.4th 130, where the California Supreme 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 thereby conceived. The National Center for Lesbian
AB 960 (Chiu)
Page 9 of ?
Rights, sponsor, writes that "California statutes currently do
not explicitly address egg donors; instead provisions in the
Family Code addressing fathers are applied to mothers. AB 960
clarifies how egg donors are protected under California law to
ensure that families using egg donors can be aware of the
protections."
5.Federal screening and testing requirements for donated tissue
Unlike other areas of medicine, which are regulated
predominately at the state level, assisted reproductive
technologies are also regulated at the federal level. In
addition, the state regulates physicians and tissue banks that
deal with sperm, and professional associations have extensive
professional guidelines for the use of sperm.
The Society for Assisted Reproductive Technology (SART) and the
American Society for Reproductive Medicine (ASRM), jointly
offered guidelines for sperm donation in 2008 that are widely
followed. Among the recommended laboratory tests were those for
HIV, HBV, HCV, syphilis, and HTLV. The guidelines provide that
anonymous and/or known donors are tested and re-tested, which is
also required under regulations issued by the Food and Drug
Administration. Thus, if an initial donation produces negative
results, the semen samples should be collected, cryopreserved,
and quarantined for a minimum of 180 days, after which the semen
should be retested, and again found negative, before the samples
may be released.
Sexually intimate couples seeking fertility treatment, however,
are only advised to undergo testing to minimize the risk of
viral transmission to partners and resulting children. Under
these guidelines, sperm donated from a sexually intimate partner
is not required to be quarantined or undergo repeat testing. In
2012, California defined "sexually intimate partner" for this
purpose to include a known or designated donor to whose sperm
the recipient has previously been exposed to in a nonmedical
setting in an attempt to conceive, thereby allowing the
recipient to waive repeat testing of that donor. (AB 2356
(Skinner, Ch. 699, Stats. 2012).)
National Center for Lesbian Rights, sponsor, writes "AB 960
should not have any effect on the testing requirements, as it
does not impose, remove, or modify any such requirements for the
provision of assisted reproduction services to patients, but
AB 960 (Chiu)
Page 10 of ?
rather only changes how California recognizes the legal
parentage of intended parents and sperm donors, in particular
those who conceived without providing the semen to a physician
and intended parents who are not married to each other."
Support : American Civil Liberties Union of California; American
Society for Reproductive Medicine; Asian Pacific Islander
Equality - Northern California; Asian Pacific Islander Wellness
Center; California LGBT Health & Human Services Network; Los
Angeles LGBT Center; San Francisco Family Support Network;
Rainbow Community Center of Contra Costa County; Transgender Law
Center
Opposition : None Known
HISTORY
Source : Equality California; National Center for Lesbian
Rights; Our Family Coalition
Related Pending Legislation : None Known
Prior Legislation :
AB 2344 (Ammiano, Chapter 636, Statutes of 2014) see Background.
AB 1403 (Committee on Judiciary, Chapter 510, Statutes of 2013)
See Background.
SB 274 (Leno, Chapter 564, Statutes of 2013) authorized a court
to find that more than two persons with a legal claim to
parentage are parents if the court finds that recognizing only
two parents would be detrimental to the child.
SB 1476 (Leno, 2012) would have authorized a court to find that
a child has more than two legal parents if in the best interest
of the child. This bill was vetoed by Governor Brown.
AB 1217 (Fuentes, Chapter 466, Statutes of 2012) required a
surrogate mother and the intended parent(s), each represented by
independent counsel, to execute a notarized or witnessed
surrogacy agreement before the mother can begin medication for
assisted reproduction.
AB 960 (Chiu)
Page 11 of ?
AB 2356 (Skinner, Chapter 699, Statutes of 2012) excepted sperm
donated by a sexually intimate partner of the recipient from
second or repeat testing, as specified, if the recipient is
informed of the testing requirements and signs a written waiver.
Defined "sexually intimate partner" to include a known or
designated donor to whose sperm the recipient had previously
been exposed in a nonmedical setting in an attempt to conceive.
AB 1349 (Hill, Chapter 185, Statutes of 2011) provided that a
voluntary declaration of paternity is invalid under specified
circumstances, allowed a presumed parent to bring a motion set
aside the voluntary declaration within a specified amount of
time, and provided that a sperm donor would not be considered
the natural father unless otherwise agreed to in writing.
AB 25 (Migden, Chapter 893, Statutes of 2001) authorized the
employment of the procedures applicable to stepparent adoption
to the adoption by a domestic partner of the child of his or her
domestic partner.
Prior Vote :
Assembly Floor (Ayes 71, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************