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
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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.
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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
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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
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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
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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)
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