BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 960|
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THIRD READING
Bill No: AB 960
Author: Chiu (D), et al.
Amended: 6/19/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-0, 7/7/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach, Anderson
ASSEMBLY FLOOR: 71-0, 5/18/15 - See last page for vote
SUBJECT: Parentage: assisted reproduction
SOURCE: Equality California
National Center for Lesbian Rights
Our Family Coalition
DIGEST: This bill provides 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 also provides, 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
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donor had an oral agreement that the donor would not be a
parent.
ANALYSIS:
Existing law:
1)Defines, under the California Uniform Parentage Act (UPA), 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. 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.)
2)Provides that a person is a presumed parent if, among other
things: (a) he or she was married to the child's mother and
the child was born within 300 days of the marriage; (b) he or
she attempted to marry the child's mother; or (c) he or she
holds the child out as his or her own. (Fam. Code Sec. 7611.)
3)Requires that the paternity presumptions be applied gender
neutrally. (Elisa B. v. Superior Court (2005) 37 Cal.4th
108.)
4)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.)
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. (Fam. Code
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Secs. 7630, 7570 et seq.)
6)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.)
7)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).)
8)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:
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, so long as the intended
parent's consent is in writing, signed by the intended parent
and the woman conceiving prior to conception.
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, and instead
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provides the following:
a) 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
b) 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.
3)Provides 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.
4)Revises the optional California Statutory Forms for Assisted
Reproduction and 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.
Background
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
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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.
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, Chapter 185,
Statutes of 2011) distinguished between known sperm donors who
planned to co-parent with the mother and more traditional sperm
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donors who gave their genetic material without any expectation
of parenting the child conceived. In 2013, the Legislature
enacted AB 1403 (Committee on Judiciary, Chapter 510, Statutes
of 2013) to update the UPA by codifying case law which has
applied presumptions of parentage neutrally with regards to
gender, and make the UPA's provisions gender neutral where
appropriate. SB 115 (Hill, 2013), which died in Assembly Rules
Committee, would have clarified how presumptions of parentage
work in situations where an individual is both a presumed father
and a sperm donor. AB 2344 (Ammiano, Chapter 636, Statutes of
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 also updates the optional, statutory
assisted reproduction forms to be consistent with the provisions
of this bill.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified7/10/15)
Equality California (co-source)
National Center for Lesbian Rights (co-source)
Our Family Coalition (co-source)
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
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OPPOSITION: (Verified7/10/15)
None received
ARGUMENTS IN SUPPORT: According to the author:
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.
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.
ASSEMBLY FLOOR: 71-0, 5/18/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brough,
Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu,
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Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman,
Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper,
Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine,
Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina,
Mullin, Nazarian, Obernolte, O'Donnell, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,
Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bigelow, Beth Gaines, Jones,
Kim, Mathis, Melendez, Olsen, Patterson
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
7/10/15 14:47:36
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