BILL ANALYSIS Ó AB 1049 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1049 (Patterson) - As Amended April 22, 2015 PROPOSED CONSENT SUBJECT: PARENTAGE KEY ISSUE: SHOULD A COURT BE ABLE TO CONSIDER THE OFFER OF A BIOLOGICAL PARENT WHO DOES NOT QUALIFY AS A PRESUMED PARENT TO SIGN A VOLUNTARY PATERNITY DECLARATION AS A FACTOR, BUT NOT THE determinative ONE, WHEN DECIDING HIS PARENTAGE RIGHTS, AND SHOULD FACILITATORS of egg donation BE BETTER REGULATED? SYNOPSIS This is the Academy of California Adoption Lawyers' annual bill to help better facilitate adoptions in California. This bill seeks to make two changes to the law -- one to limit the weight a court may give a biological father's offer to sign a voluntary paternity declaration and one to provide some regulation of egg donation facilitators. The first change seeks to ensure that a mere offer to sign a voluntary paternity declaration, without a greater showing of commitment to parent a child, by a man who cannot establish that he is a presumed parent will not by itself grant the biological father the ability to stop an adoption AB 1049 Page 2 proceeding. The second change requires that facilitators of egg donation direct clients to placed funds for the donors in escrow accounts to better protect the donors. The bill has no opposition. SUMMARY: Allows a person's offer or refusal to sign a voluntary paternity declaration to be considered when determining parental rights and provides some regulation of facilitators of egg donation. Specifically, this bill: 1)Provides that a person's offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but is not by itself determinative, as to the issue of legal parentage in any proceedings to establish or terminate parental rights. 2)Defines "donor" as a woman who provides her oocytes (eggs) for use by another for the purpose of assisting the recipient of the oocytes in having a child or children of her own. Defines a "donor facilitator" as a person or organization who either a) advertises for the donation oocytes for use by a person other than the provider or acts as an intermediary between parties to an oocyte donation, or b) charges a fee for services relating to an oocyte donation. 3)Requires that non-attorney, oocytes donor facilitators direct clients to deposit all client funds in an independent, bonded escrow account or attorney trust account, as provided. EXISTING LAW: 1)Establishes the California Uniform Parentage Act. Defines a parent and child relationship as the legal relationship AB 1049 Page 3 between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. (Family Code Section 7600 et seq. Unless stated otherwise, all further statutory references are to that code.) 2)Provides that paternity may be established by voluntary declaration for unmarried parents, as specified. Provides that, subject to rescission, a completed voluntary declaration of paternity that has been filed with the Department of Child Support Services establishes the paternity of a child and has the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. Provides that a court may, in certain circumstances set aside a voluntary declaration within two years of execution. (Sections 7570 et seq., 7612.) 3)Defines a person as a presumed parent if, among other things: a) The person was married to the child's mother and the child was born within 300 days of the marriage; b) the person attempted to marry the child's mother; or c) the person receives the child into his or her home and openly holds the child out as his or her own. (Section 7611.) 4)Except as provided, a child with a presumed father may not be adopted without the consent of the birth parents, if living. (Section 8604.) 5)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. (Section 7606.) AB 1049 Page 4 6)Prohibits the parties to an assisted reproduction agreement for gestational carriers, as defined, from undergoing an embryo transfer, or commencing injectable medicine prior to the execution of the agreement. Requires that both parties to an assisted reproduction agreement for gestational carriers be represented by separate, independent counsel prior to the signing of the agreement. Requires that the agreement include the identity of the intended parent(s) and, unless anonymously donated, the persons from which the gametes originate. (Section 7962.) 7)Requires "surrogacy facilitators" (persons who facilitate agreements between intended parents and surrogates) to direct clients to deposit all client funds in an independent, bonded escrow account or attorney trust account. (Section 7961.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: This is the Academy of California Adoption Lawyers' annual bill to help better facilitate adoptions in California. This bill seeks to make two changes to the law -- one to limit the weight a court may give a biological parent's offer to sign a voluntary paternity declaration and one to provide some regulation of egg donation facilitators. Limitation on Use of a Voluntary Paternity Declaration to Establish Parentage or Terminate Parental Rights. Parents have constitutional rights to their children ("the relationship between parent and child is constitutionally protected," Quilloin v. Walcott (1978) 434 U.S. 246, 255), and an adoption can only occur if the legal parents either consented to the adoption or had their parentage rights terminated. A presumed parent - generally someone who is married to the child's mother, executed a voluntary paternity declaration, or has lived with AB 1049 Page 5 the child and held the child out as his or her own - has the same rights to the child as the birth mother and must either consent to the adoption or have his or her rights terminated. An alleged father (a biological father who does not meet the requirements to be a presumed parent), by contrast, does not have the same rights with respect to the child. An alleged father must receive notice of the adoption proceeding and may challenge the adoption. However, a court can deny an alleged father's parentage rights if the court deems it is not in the child's best interest to establish those rights. The California Supreme Court recognized a third possible parent - a Kelsey S. or quasi-presumed father - who may not qualify as a presumed parent, but may still have constitutional rights as a biological father. In that case, the biological father attempted to establish his parental rights, but was thwarted by the mother. The Supreme Court held that if a biological father can demonstrate sufficient commitment to his parental responsibilities, under the circumstances, he has constitutionally protected rights, just like the child's mother: If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotional, financial, and otherwise--his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother. (Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 849 (footnote omitted).) AB 1049 Page 6 Just last year, an appellate court held that a biological father qualified as a Kelsey S. father and thus could prevent his child's adoption, but language in the court's opinion has raised concerns for adoption lawyers. (Adoption of Baby Boy W (2014) 231 Cal. App. 4th 438.) While the biological father in that case made an extensive showing of his commitment to the child, he also claimed that he asked to sign a paternity declaration, but the mother refused. In finding that the biological father met the Kelsey S. requirements - and could stop the adoption - the court found that the mother unilaterally precluded him "from becoming a presumed father by refusing to sign a voluntary declaration of paternity despite the fact that paternity" was not in dispute. (Id. at 452, fn. 12.) While the facts of the case as reported by the court support its outcome, practitioners are concerned that the language regarding the voluntary paternity declaration may be used by later courts to hold that all a biological father has to do is to offer to sign a declaration of paternity -- without otherwise demonstrating any commitment to parental responsibilities -- to become a Kelsey S. father and be able to unilaterally stop an adoption. To prevent this undesirable outcome, this bill provides that a person's offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but will not be determinative, as to legal parentage in any proceedings to establish or terminate parental rights. This allows a court to consider a biological father's offer to sign a voluntary declaration as a factor in determining qualification under Kelsey S., but does not make that one factor - which requires nothing other than a one-time, unilateral declaration by the biological father - the determinative factor. This appears to be the appropriate weight to give such an offer and will allow a court to look at the totality of the evidence when considering whether a biological parent qualifies as a Kelsey S. father with constitutional rights with respect to the child. Better Oversight of Facilitators of Egg Donation. California AB 1049 Page 7 law currently provides some limited regulation of those who facilitate surrogacy agreements by requiring that all client funds must be deposited into independent, bonded escrow accounts or into attorney trust accounts, in order to protect the funds and make sure they are available for the surrogates. This bill seeks to provide regulation for those who facilitate egg donation. First, the bill defines "donor facilitators" as persons or organizations who either a) advertises for the donation oocytes (eggs) for use by a person other than the provider or act as intermediaries between parties to an oocyte donation, or b) charge a fee for services relating to an oocyte donation. The bill then regulates oocytes donor facilitators like surrogacy facilitators, requiring that non-attorney oocytes donor facilitators direct clients to deposit all client funds in an independent, bonded escrow account or attorney trust account, as provided. The author believes that this change is necessary "to ensure that funds owed to an egg donor to cover medical expenses and other contractual sums will be protected by a bonded escrow account or attorney trust account, as already required by law for other funds related to assisted reproduction. This will put a stop to unscrupulous, unlicensed agencies that have absconded with thousands of dollars from clients that were intended to cover these medical procedures." While this bill will not fully regulate egg donor facilitators, it will better protect the funds that donors are to be paid. REGISTERED SUPPORT / OPPOSITION: Support Academy of California Adoption Lawyers (sponsor) AB 1049 Page 8 Opposition None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334