BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 1049 (Patterson) Version: April 22, 2015 Hearing Date: June 16, 2015 Fiscal: No Urgency: No NR SUBJECT Parent and child relationship DESCRIPTION This bill would provide that a person's offer or refusal to sign a voluntary declaration of paternity may be considered 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. This bill would also require a non-attorney donor facilitator to direct his or her client to deposit client funds in an independent, bonded escrow account or a trust account. BACKGROUND Every year, the Academy of California Adoption Lawyers (ACAL) seeks to clarify or modify provisions in the Family and related codes which they have identified as having either technical errors or as being the basis for conflicting court rulings that could potentially prolong the adoption process. Accordingly, this bill, sponsored by ACAL, would make various changes related to adoption, including clarifying that an offer to sign a voluntary declaration of paternity, alone, is not determinative as to the issue of legal parentage, and requiring donor facilitators to place funds for donor services in an escrow account, as specified. CHANGES TO EXISTING LAW AB 1049 (Patterson) Page 2 of ? 1.Existing law establishes the California Uniform Parentage Act and defines a parent and child relationship as the legal relationship between a child and the child's natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations. (Fam. Code Sec. 7600 et seq.) Existing law provides that paternity may be established by voluntary declaration for unmarried parents, which has the same force and effect as a judgment for paternity issued by a court of competent jurisdiction, as specified. (Fam. Code Secs. 7570 et seq., 7612.) Existing law 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. (Fam. Code Sec. 7611.) Existing law generally prohibits a child with a presumed father from being adopted without the consent of the birth parents, if living. (Fam. Code Sec. 8604.) This bill would provide that a person's offer or refusal to sign a voluntary declaration of paternity may be considered 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 defines "assisted reproduction" as conception by any means other than sexual intercourse, and 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. (Fam. Code Sec. 7606.) Existing law defines a surrogacy facilitator as a person who advertises for the purpose of soliciting parties to an assisted reproduction agreement or acts as an intermediary between the parties to an assisted reproduction agreement, or charges a fee for services rendered relating to an assisted reproduction agreement. AB 1049 (Patterson) Page 3 of ? Existing law requires "surrogacy facilitators" to direct clients to deposit all client funds in an independent, bonded escrow account or attorney trust account. (Fam. Code Sec. 7961.) This bill would define "donor" for the purposes of the above surrogacy provisions as 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. This bill would define a donor facilitator as a person who advertises or solicits the donation of oocytes for use by a person other than the provider of the oocytes, or or charges a fee for services rendered relating to oocyte donation. This bill would additionally require donor facilitators to direct clients to deposit all client funds in an independent, bonded escrow account or attorney trust account. COMMENT 1.Stated need for the bill According to the author: AB 1049 provides technical and clarifying clarifications to existing adoption law. Section 1 allows a court to consider an offer or refusal to sign a voluntary declaration of paternity as a factor in any legal proceeding to establish or terminate parental rights. Sections 2 and 3 add clarifying language to assisted reproduction statutes so as to apply consistent standards to all donors of genetic material. 2.Offer to sign voluntary declaration of paternity The relationship between parent and child is constitutionally protected. The Due Process Clause of the U.S. Constitution would be violated if a state were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 831-2.) Thus, adoption may only occur if the legal parents consent to the adoption, or their rights are terminated. Legal parents are generally (1) a birth mother, (2) a "presumed" parent, or (3) an "alleged" father. A presumed AB 1049 (Patterson) Page 4 of ? parent, who is either married to the mother or has "held the child out as his or her own," has the same rights to the child as the birth mother. An alleged father is generally a biological father who does not meet the requirements of a presumed parent. An alleged father does not have the same rights as a mother or a presumed parent, but must receive notice of any adoption proceeding and may challenge the adoption. Regardless of which type of parental status a person has, the signing of a voluntary Declaration of Paternity by both parents, officially and legally establishes who the father of the child is when the mother and father are not married to each other. This bill would clarify that a person's offer or refusal to sign a voluntary declaration of paternity may be considered 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. (Id. at 849.) Language from a 2014 California appellate case has caused concern within the adoption community that a mere offer to sign a voluntary declaration of paternity may be sufficient to unilaterally stop an adoption. According to the author: A recent appellate court ruling turns Family Code section 7570 on its head by holding that a unilateral offer to sign a voluntary declaration will have the same effect as if both parents had actually signed the declaration and filed it with the Department of Vital Statistics. This eviscerates the purpose of the voluntary declaration program, which is the orderly establishment of parentage upon the voluntary written agreement of both parents, for the purpose of obtaining child support orders. This appellate court ruling also overturns 20 plus years of California Supreme Court precedent that established a carefully balanced method of determining which persons may block an adoption by virtue of their legal status vis-à-vis the child. Accordingly, this bill would prohibit a court from having an offer or refusal to sign a voluntary declaration of paternity to be, on its own, determinative as to the issue of legal parentage. In support, Infant of Prague, a central California adoption service, writes: In contested cases, unilateral offers or refusals to sign such declarations may be considered by a court, but have never been AB 1049 (Patterson) Page 5 of ? deemed dispositive of parenthood. Unfortunately, a recent appellate court opinion confused these long standing statutory standards by issuing a blanket holding that could allow any man to secure parental rights merely by offering to sign a voluntary declaration at any time-even long after the baby is born. This holding eviscerates more than 20 years of case law and is discriminatory on its face, in that a mother's offer or refusal to sign the declaration is not accorded the same weight and does not establish or increase any parental rights. AB 1049 thus contains a narrow technical fix to preserve a court's discretion to weigh the facts of each case in their entirety, and to thereby ensure that voluntary declarations of paternity remain truly voluntary. Staff notes that by clarifying that an offer to sign a voluntary declaration of paternity may be considered by a court, but, by itself, is not determinative on the issue of legal parentage. This bill would afford the court the proper discretion to consider the constitutional rights of the parties and protect the best interests of the child in adoption proceedings. 3.Donor facilitators Existing law regulates the practice of surrogacy and those persons who facilitate surrogate pregnancies, including that funds deposited for the surrogate's payment must be placed in a secure escrow fund. This bill would apply the same regulations to persons who facilitate egg donation. The author writes that this is necessary because, "Family Code sections 7960 and 7961 were enacted to protect against fraudulent absconding of funds deposited for payment of all medical and other expenses incurred by gestational surrogates in reliance upon contractual promises. As enacted, the statutes do not explicitly require the same protections for ova/egg donors. This leaves egg donors open to ongoing fraudulent practices that render them financially vulnerable." The Academy of California Adoption Lawyers, sponsor, writes: These statutes do not explicitly require the same fiscal protections for women who have entered into agreements to donate ova or eggs. This leaves egg donors open to ongoing fraudulent practices that render them vulnerable to financial abuse. AB 1049 addresses this problem by specifically requiring escrow of funds related to an ova/egg donor. By AB 1049 (Patterson) Page 6 of ? adding this clarification to assisted reproduction statutes, AB 1049 ensures consistent standards of fiscal responsibility apply across California family law. Support : American Society for Reproductive Medicine; Infant of Prague; Valley Teen Ranch Opposition : None Known HISTORY Source : Academy of California Adoption Lawyers Related Pending Legislation : None Known Prior Legislation : AB 1701 (Patterson, Chapter 763, Statutes of 2014) made several changes to adoption processes and adoptive placement considerations including allowing a single petition to terminate parental rights to be filed for two or more siblings, or for a child with two or more alleged fathers. AB 848 (Patterson, Chapter 743, Statutes of 2013) made several changes to adoption processes and adoptive placement considerations including clarifying when a birth parent's waiver of the right to revoke consent to an adoption is void or able to be rescinded, and that an abbreviated home study assessment may only be used for specified individuals. AB 687 (Fletcher, Chapter 462, Statutes of 2011) streamlined the process for determining parent-child relationships, and made other technical and substantive changes to adoption laws. AB 2020 (Fletcher, Chapter 588, Statutes of 2010) among other things, streamlined the process for determining parent-child relationships and made other substantive and technical changes to adoption laws. Prior Vote : Assembly Floor (Ayes 78, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) AB 1049 (Patterson) Page 7 of ? **************