BILL ANALYSIS Ó
AB 960
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
960 (Chiu)
As Amended June 19, 2015
Majority vote
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|ASSEMBLY: | 71-0 | (May 18, |SENATE: |29-2 | (August 17, |
| | |2015) | | |2015) |
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Original Committee Reference: JUD.
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.
2)Removes the requirement that, in order for a sperm donor not
to be considered the father of a child thereby conceived, a
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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 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 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 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.
The Senate amendments require that sperm donor, who does not
wish to be a parent, who does not use a doctor and who does not
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sign a written agreement with the woman who receives the sperm
prior to conception, will be considered a parent unless a court
finds, by clear and convincing evidence, 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.
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
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otherwise agreed to in a writing signed by the donor and the
woman prior to the conception of the child.
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 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)
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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, this 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, 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. Thus, these donors are most
likely parents, unless they agree otherwise - whether in
writing or orally - prior to conception.
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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:
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.
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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:
0001221