BILL ANALYSIS Ó
AB 1049
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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
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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
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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.)
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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
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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).)
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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
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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
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334