Amended in Assembly April 22, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1049

Introduced by Assembly Member Patterson

February 26, 2015

An act to amend Sections 7612, begin delete 7613, end delete 7960, and 7961 of, and to amend the heading of Part 7 (commencing with Section 7960) of Division 12 of, the Family Code, begin delete and to amend Section 305.6 of the Welfare and Institutions Code, end delete relating to children.

LEGISLATIVE COUNSEL’S DIGEST

AB 1049, as amended, Patterson. Parent and child relationship.

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(1) Under

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begin insert Under end insert 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 begin delete used end delete begin insert considered end insert 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.

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(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.

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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.

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(3) Existing

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begin insert Existing end insert 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.

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(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.

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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.

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(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.

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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.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program:  begin delete yes end delete begin insert no end insert .

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 begin delete used end delete begin insert considered end insert 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.

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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 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.

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begin delete SEC. 3. end delete
begin insert SEC. 2. end insert   

The heading of Part 7 (commencing with Section 7960)
of Division 12 of the Family Code is amended to read:

 

PART 7.  SURROGACY AND DONOR FACILITATORS,
ASSISTED REPRODUCTION AGREEMENTS FOR
GESTATIONAL CARRIERS, AND OOCYTE DONATIONS

 

begin delete SEC. 4. end delete
begin insert SEC. 3. end insert   

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 or oocyte donation.

(2) Charging a fee or other valuable consideration for services
rendered relating to an assisted reproduction 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.

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begin insert SEC. 4. end insert   

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.

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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 at any time prior to the
minor’s discharge from the hospital:

(A) The minor is a newborn who 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
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 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.

(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.

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