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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