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