BILL NUMBER: AB 1049 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Patterson
FEBRUARY 26, 2015
An act to amend Sections 7612, 7613, 7960, and 7961 of, and to
amend the heading of Part 7 (commencing with Section 7960) of
Division 12 of, the Family Code, and to amend Section 305.6 of the
Welfare and Institutions Code, relating to children.
LEGISLATIVE COUNSEL'S DIGEST
AB 1049, as introduced, Patterson. Parent and child relationship.
(1) Under existing law, a man is conclusively presumed to be the
father of a child if he was married to and cohabiting with the child'
s mother, except as specified. Existing law also provides that if a
man signs a voluntary declaration of paternity, it has the force and
effect of a judgment of paternity, subject to certain exceptions.
Existing law provides that these presumptions are rebuttable.
This bill would state that a person's offer or refusal to sign a
voluntary declaration of paternity may be used as a factor, but shall
not be determinative as to the issue of legal parentage in any
proceedings regarding the establishment or termination of parental
rights.
(2) Existing law provides that the spouse of a woman who conceives
through assisted reproduction with semen donated by a man not her
husband, as specified, is treated in law as if he or she were the
natural parent of a child thereby conceived. Existing law further
provides that the donor of semen provided to a licensed physician or
to a licensed sperm bank for use in artificial insemination or in
vitro fertilization of a woman other than the donor's wife is treated
in law as if he were not the natural father of a child thereby
conceived.
This bill would additionally provide that the spouse of a women
who conceives through assisted reproduction with oocytes donated for
reproductive purposes is treated in law as if he or she were the
natural parent of the child, and the woman who conceives the child is
treated in law as the natural parent unless the woman is a surrogate
mother, as defined. The bill would further provide that the donor of
oocytes provided to a licensed physician or to a licensed egg bank
for use in assisted reproduction of a woman other than the donor, her
spouse, or domestic partner is treated in law as if she were not the
natural parent of a child thereby conceived, unless otherwise
specified.
(3) Existing law requires a nonattorney surrogacy facilitator to
direct his or her client to deposit client funds in an independent,
bonded escrow account or a trust account maintained by an attorney,
subject to specified withdrawal requirements.
This bill would additionally require a nonattorney donor
facilitator to direct his or her client to deposit client funds, as
specified above.
(4) Existing law prohibits a peace officer from taking into
temporary custody, without a warrant, a newborn who is in a hospital
if specified conditions exist, including that the newborn or his or
her birth mother tested positive for illegal drugs, the newborn is
the subject of a proposed adoption, and a Health Facility Minor
Release Report has been completed by the hospital, as specified.
This bill would instead prohibit a peace officer or child welfare
agency worker from taking into temporary custody, without a warrant,
a newborn who is in a hospital, if among other conditions, the
newborn appears to come within the description of a dependent child
of the juvenile court. The bill would require a hospital, whenever it
makes a report or referral to a child welfare agency or law
enforcement agency regarding a newborn, to immediately advise the
birth parent or parents in writing of the parent's right to contact
an attorney or a licensed private adoption agency for assistance with
placing the newborn for adoption, and to complete a Health Facility
Minor Release Report upon request by a parent. The bill would require
a child welfare agency worker who investigates the hospital report
or referral to, prior to filing a dependency petition for a newborn
who has not yet been discharged from the hospital, confirm that the
hospital has advised the birth parent or parents in writing of the
right to place the newborn for adoption and allow the parent a
reasonable opportunity to place the newborn for adoption before the
newborn is discharged from the hospital. By creating additional
duties for local officials, this bill would impose a state-mandated
local program.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7612 of the Family Code is amended to read:
7612. (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2
or in Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7610 or 7611
that conflict with each other, or if a presumption under Section 7611
conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of
policy and logic controls.
(c) In an appropriate action, a court may find that more than two
persons with a claim to parentage under this division are parents if
the court finds that recognizing only two parents would be
detrimental to the child. In determining detriment to the child, the
court shall consider all relevant factors, including, but not limited
to, the harm of removing the child from a stable placement with a
parent who has fulfilled the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment to the
child does not require a finding of unfitness of any of the parents
or persons with a claim to parentage.
(d) Unless a court orders otherwise after making the determination
specified in subdivision (c), a presumption under Section 7611 is
rebutted by a judgment establishing parentage of the child by another
person.
(e) Within two years of the execution of a voluntary declaration
of paternity, a person who is presumed to be a parent under Section
7611 may file a petition pursuant to Section 7630 to set aside a
voluntary declaration of paternity. The court's ruling on the
petition to set aside the voluntary declaration of paternity shall be
made taking into account the validity of the voluntary declaration
of paternity, and the best interests of the child based upon the
court's consideration of the factors set forth in subdivision (b) of
Section 7575, as well as the best interests of the child based upon
the nature, duration, and quality of the petitioning party's
relationship with the child and the benefit or detriment to the child
of continuing that relationship. In the event of any conflict
between the presumption under Section 7611 and the voluntary
declaration of paternity, the weightier considerations of policy and
logic shall control.
(f) A voluntary declaration of paternity is invalid if, at the
time the declaration was signed, any of the following conditions
exist:
(1) The child already had a presumed parent under Section 7540.
(2) The child already had a presumed parent under subdivision (a),
(b), or (c) of Section 7611.
(3) The man signing the declaration is a sperm donor, consistent
with subdivision (b) of Section 7613.
(g) A person's offer or refusal to sign a voluntary declaration of
paternity may be used as a factor, but shall not be determinative,
as to the issue of legal parentage in any proceedings regarding the
establishment or termination of parental rights.
SEC. 2. Section 7613 of the Family Code is amended to read:
7613. (a) If, under the supervision of a licensed physician and
surgeon and with the consent of her spouse, if married, a
woman conceives through assisted reproduction with semen donated by a
man not her husband or with oocytes donated for reproductive
purposes , the spouse is treated in law as if he or she were
the natural parent of a child thereby conceived.
conceived and the woman who conceives the child is treated in
law as the natural parent unless the woman is a surrogate
mother as defined under subdivision (f) of Section 7960. The
spouse's consent shall be in writing and signed by both spouses. The
physician and surgeon shall certify their signatures and the date of
the assisted reproduction procedure, and retain the spouse's consent
as part of the medical record, where it shall be kept confidential
and in a sealed file. However, the physician and surgeon's failure to
do so does not affect the parent and child relationship. All papers
and records pertaining to the assisted reproduction procedure,
whether part of the permanent record of a court or of a file held by
the supervising physician and surgeon or elsewhere, are subject to
inspection only upon an order of the court for good cause shown.
(b) The donor of semen provided to a licensed physician and
surgeon or to a licensed 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 a child thereby conceived, unless
otherwise agreed to in a writing signed by the donor and the woman
prior to the conception of the child.
(c) The donor of oocytes provided to a licensed physician and
surgeon or to a licensed egg bank for use in assisted reproduction of
a woman other than the donor, her spouse, or domestic partner is
treated in law as if she were not the natural parent of a child
thereby conceived, unless otherwise agreed to in a writing signed by
the donor and the recipient of the oocytes prior to the conception of
the child.
SEC. 3. The heading of Part 7 (commencing with Section 7960) of
Division 12 of the Family Code is amended to read:
PART 7. SURROGACY FACILITATORS AND AND
DONOR FACILITATORS, ASSISTED REPRODUCTION AGREEMENTS FOR
GESTATIONAL CARRIERS , AND OOCYTE DONATIONS
SEC. 4. Section 7960 of the Family Code is amended to read:
7960. For purposes of this part, the following terms have the
following meanings:
(a) "Assisted reproduction agreement" has the same meaning as
defined in subdivision (b) of Section 7606.
(b) "Fund management agreement" means the agreement between the
intended parents and the surrogacy or donor facilitator
relating to the fee or other valuable consideration for services
rendered or that will be rendered by the surrogacy or donor
facilitator.
(c) "Intended parent" means an individual, married or unmarried,
who manifests the intent to be legally bound as the parent of a child
resulting from assisted reproduction.
(d) "Nonattorney surrogacy or donor
facilitator" means a surrogacy or donor practitioner who
is not an attorney in good standing licensed to practice law in this
state.
(e) "Surrogacy or donor facilitator" means a person or
organization that engages in either of the following activities:
(1) Advertising for the purpose of soliciting parties to an
assisted reproduction agreement or for the donation of oocytes
for use by a person other than the provider of the oocytes, or
acting as an intermediary between the parties to an assisted
reproduction agreement. agreement or oocyte
donation.
(2) Charging a fee or other valuable consideration for services
rendered relating to an assisted reproduction agreement.
agreement or oocyte donation.
(f) "Surrogate" means a woman who bears and carries a child for
another through medically assisted reproduction and pursuant to a
written agreement, as set forth in Sections 7606 and 7962. Within the
definition of surrogate are two different and distinct types:
(1) "Traditional surrogate" means a woman who agrees to gestate an
embryo, in which the woman is the gamete donor and the embryo was
created using the sperm of the intended father or a donor arranged by
the intended parent or parents.
(2) "Gestational carrier" means a woman who is not an intended
parent and who agrees to gestate an embryo that is genetically
unrelated to her pursuant to an assisted reproduction agreement.
(g) "Donor" means a woman who provides her oocytes for use by
another for the purpose of assisting the recipient of the oocytes in
having a child or children of her own.
SEC. 5. Section 7961 of the Family Code is amended to read:
7961. (a) A nonattorney surrogacy or donor facilitator
shall direct the client to deposit all client funds into either of
the following:
(1) An independent, bonded escrow depository maintained by a
licensed, independent, bonded escrow company.
(2) A trust account maintained by an attorney.
(b) For purposes of this section, a nonattorney surrogacy or
donor facilitator may not have a financial interest in any
escrow company holding client funds. A nonattorney surrogacy or
donor facilitator and any of its directors or employees shall
not be an agent of any escrow company holding client funds.
(c) Client funds may only be disbursed by the attorney or escrow
agent as set forth in the assisted reproduction agreement and fund
management agreement.
(d) This section shall not apply to funds that are both of the
following:
(1) Not provided for in the fund management agreement.
(2) Paid directly to a medical doctor for medical services or a
psychologist for psychological services.
SEC. 6. Section 305.6 of the Welfare and Institutions Code is
amended to read:
305.6. (a) Any peace officer or child welfare agency worker
may, without a warrant, take into temporary custody a minor who
is in a hospital if the release of the minor to a prospective
adoptive parent or a representative of a licensed adoption agency
poses an immediate danger to the minor's health or safety.
(b) (1) Notwithstanding subdivision (a) and Section 305, a peace
officer or child welfare agency worker may not, without a
warrant, take into temporary custody a minor who is in a hospital if
all of the following conditions exist: exist
at any time prior to the minor's discharge from the hospital:
(A) The minor is a newborn who tested positive for
illegal drugs or whose birth mother tested positive for illegal
drugs. is described in Section 300.
(B) The minor is the subject of a proposed adoption and a Health
Facility Minor Release Report, prescribed by the department, has been
completed by the hospital, including the marking of the boxes
applicable to an independent adoption or agency adoption planning,
and signed by the placing birth parent or birth parents, as well as
either the prospective adoptive parent or parents or an authorized
representative of a licensed adoption agency, prior to the discharge
of the birth parent or the minor from the hospital. Prior to signing
the Health Facility Minor Release Report, the birth parent or parents
shall be given a notice written in at least 14-point pica type,
containing substantially the following statements:
(i) That the Health Facility Minor Release Report does not
constitute consent to adoption of the minor by the prospective
adoptive parent or parents, or any other person.
(ii) That the Health Facility Minor Release Report does not
constitute a relinquishment of parental rights for the purposes of
adoption.
(iii) That the birth parent or parents or any person authorized by
the birth parent or parents may reclaim the minor at any time from
the prospective adoptive parent or parents or any other person to
whom the minor was released by the hospital, as provided in Sections
8814.5, 8815, or 8700 of the Family Code.
This notice shall be signed by the birth parent or parents and
attached to the Health Facility Minor Release Report, a copy of which
shall be provided to the birth parent or parents by hospital
personnel at the time the form is completed.
(C) The release of the minor to a prospective adoptive parent or
parents or an authorized representative of a licensed adoption agency
does not pose an immediate danger to the minor.
(D) An attorney or an adoption agency has provided documentation
stating that he or she, or the agency, is representing the
prospective adoptive parent or parents for purposes of the adoption.
In the case of an independent adoption, as defined in Section 8524 of
the Family Code, the attorney or adoption agency shall provide
documentation stating that the prospective adoptive parent or parents
have been informed that the child may be eligible for benefits
provided pursuant to the Adoption Assistance Program, as set forth in
Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9,
only if, at the time the adoption request is filed, the child has
met the requirements to receive federal supplemental security income
benefits pursuant to Subchapter XVI (commencing with Section 1381) of
Chapter 7 of Title 42 of the United States Code, as determined and
documented by the federal Social Security Administration.
(E) The prospective adoptive parent or parents or their
representative, or an authorized representative of a licensed
adoption agency, provides all of the following to the peace officer
who is at the hospital or
child welfare agency worker who seeks to take the minor
into temporary custody:
(i) A fully executed copy of the Health Facility Minor Release
Report.
(ii) A written form, developed by the department,
form signed by either the prospective adoptive
parent or parents or a representative of the licensed adoption
agency, which shall include all of the following:
(I) A statement that the minor is the subject of a proposed
adoption.
(II) A declaration that the signer or signers will immediately
notify the county child welfare agency pursuant to Section 11165.9 of
the Penal Code if the adoption plan is terminated for any reason,
and will not release the minor to the birth parent or parents or any
designee of the birth parent or parents until the county child
welfare agency or local law enforcement agency completes an
investigation and determines that release of the minor to the birth
parent or parents or a designee of the birth parent or parents will
not create an immediate risk to the health or safety of the minor.
(III) An agreement to provide a conformed copy of the adoption
request or guardianship petition to the county child welfare agency
within five business days after filing.
(IV) The names, identifying information, and contact information
for the minor, for each prospective adoptive parent, and for each
birth parent, to the extent that information is known. In the case of
an agency adoption where no prospective adoptive parent or parents
are identified at the time of the minor's release from the hospital,
the licensed adoption agency may provide the information as it
pertains to the licensed or certified foster home into which the
agency intends to place the minor.
(c) (1) In every independent adoption proceeding under this
section, the prospective adoptive parent or parents shall file with
the court either an adoption request within 10 working days after
execution of an adoption placement agreement, or a guardianship
petition within 30 calendar days after the child's discharge from the
hospital, whichever is earlier.
(2) If the adoption plan for a minor who was released from the
hospital pursuant to subdivision (b) is terminated for any reason,
the prospective adoptive parent or parents or licensed adoption
agency shall immediately notify the county child welfare agency. The
prospective adoptive parent or parents or licensed adoption agency
may not release the minor into the physical custody of the birth
parent or parents, or any designee of the birth parent or parents,
until the county child welfare agency or local law enforcement agency
completes an investigation and determines that release of the minor
to the birth parent or parents or a designee of the birth parent or
parents will not create an immediate risk to the health or safety of
the minor.
(d) If a hospital makes a report or referral to a child welfare
agency or law enforcement agency regarding a minor newborn, the
hospital shall do both of the following:
(1) Immediately advise the birth parent or parents in writing of
the parent's right to contact an attorney or a licensed private
adoption agency for assistance with placing the minor newborn for
adoption in accordance with this section.
(2) Upon request by a birth parent, complete a Health Facility
Minor Release Report and provide copies of the report to all parties
listed in subparagraph (B) of paragraph (1) of subdivision (b), even
if the minor newborn is ineligible for release at that time for any
reason.
(e) Prior to filing a petition pursuant to Section 300 regarding a
minor newborn who has not yet been discharged from the hospital, a
child welfare agency worker who investigates a hospital report or
referral regarding the minor newborn shall do all of the following:
(1) Confirm that the hospital has advised the parent in writing of
the right to place the minor newborn for adoption.
(2) Allow a parent who wishes to place a minor newborn for
adoption a reasonable opportunity to do so at any time before the
minor newborn is discharged from the hospital.
(3) Implement interim measures, as necessary, to ensure the safety
and well-being of the minor newborn pending adoptive placement, such
as instructions to the hospital not to discharge the minor newborn
to any agency or person without approval from the child welfare
agency, which approval shall be given upon satisfaction of the
requirements of this section.
(d)
(f) Nothing in this section is intended to create a
duty that requires law enforcement to investigate the prospective
adoptive parent or parents.
SEC. 7. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.