BILL ANALYSIS
AB
1926
Page 1
Date of Hearing: April 4, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1926 (DeVore) - As Introduced: February 1, 2006
SUBJECT : ESTABLISHING PARENTAGE: "EMBRYO ADOPTION"
KEY ISSUES :
1)GIVEN THAT CALIFORNIA LAW ALREADY ESTABLISHES A PARENT-CHILD
RELATIONSHIP FOR A BIRTH MOTHER, IS THIS BILL, which would
establish parentage for a birth mother of a transferred
embryo, NECESSARY?
2)SHOULD A PARENT-CHILD RELATIONSHIP BE ESTABLISHED BETWEEN AN
EMBRYO AND AN "ADOPTIVE" PARENT DESPITE THE FACT THAT AN
EMBRYO IS NOT A CHILD SUBJECT TO ADOPTION?
Synopsis
This bill seeks to provide special rights for establishing
parentage for embryos. First, this bill restates existing law
regarding establishing parentage for a birth mother using a
donated embryo. Additionally, this bill creates a new class of
adoption for embryos by providing that parentage can be
established between a child and an "adoptive parent" through
proof of transfer of an embryo to a woman pursuant to some sort
of written agreement. Under this bill, the recipients of the
embryo transfer "adopt" the embryo as they would a child, thus
seeming to bestow upon the embryo some of the same legal rights
as a born child. The American Civil Liberties Union, the
American College of Obstetricians and Gynecologists and Planned
Parenthood oppose the bill as unnecessary and argue that its
attempt to give an embryo the status of a person raises
reproductive rights concerns. The Family Law Section of the
State Bar opposes the bill, unless amended, to eliminate the
change regarding adoption and to provide greater clarity as to
protect valid parentage claims for women using various assisted
reproductive methods.
SUMMARY : Permits the establishment of parentage, whether by
birth or adoption, for an embryo. Specifically, this bill :
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1)Specifies that a parent-child relationship may be established
between a natural mother, including a mother who becomes
pregnant as a result of an embryo transfer in compliance with
a written agreement, by proof of the birth of the child.
2)Specifies that a parent-child relationship may be established
between a child and an adoptive parent by proof of an
agreement to transfer an embryo.
EXISTING LAW :
1)Provides that a parent and child relationship may be
established between a child and the natural mother by proof of
the woman giving birth to the child. (Family Code Section
7610(a).)
2)Provides that a parent and child relationship may be
established under the Uniform Parentage Act, including
establishing a parent-child relationship based on a person
receiving a child into his home and openly holding the child
out as his natural child. (Family Code Section 7611.)
3)Provides that insofar as practical, the provisions of the
Uniform Parentage Act applicable to the father-child
relationship also apply to the mother-child relationship.
(Family Code Section 7650.)
4)Provides that a parent and child relationship may be
established by proof of adoption. (Family Code Section
7610(c).) Provides for the adoption of a child relinquished
by either birth parent. (Family Code Section 8500 et seq .)
5)Provides that if parentage is established through two or more
presumptions, then the presumption which on the facts is
founded on the weightier considerations of logic and policy
controls. (Family Code Section 7612.)
6)Provides that a mother and child relationship may be
established by either proof of having given birth to the child
or by proof of genetic relationship. Where two women have
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equal claims to parentage - one by giving birth and the other
by genetic link - a determination of which woman intended to
procreate the child and raise it as her own "breaks the tie."
( Johnson v. Calvert (1993) 5 Cal.4th 84.)
FISCAL EFFECT : As currently in print, this bill is non-fiscal.
COMMENTS : This bill seeks to provide special rights for
establishing parentage for embryos. Specifically, this bill
restates existing law regarding establishing parentage for a
birth mother using a donated embryo. Additionally, this bill
creates a new class of adoption for embryos by providing that
parentage can be established between a child and an "adoptive
parent" through proof of transfer of an embryo to a woman
pursuant to some sort of written agreement. Under this bill,
the recipients of the embryo transfer "adopt" the embryo as they
would a child, thus seeming to bestow upon the embryo some of
the same legal rights as a born child.
In support of this bill, the author writes:
Embryo donation and adoption is a fast growing
adoption method for couples who have problems
conceiving naturally. Adoption laws have not kept up
with this technology, leaving children who are
products of embryo donation and adoption unprotected
under the law. This leaves parents of a child born
after the transfer of an embryo with only a contract
to rely on for their parental rights. This change in
the law would make clear that, even though there isn't
an adoption process involved, the parent and child's
rights are the same for a child adopted though a court
proceeding.
The author further argues that this bill is necessary to cover
the growing number of ways in which families are created,
including through use of reproductive technologies.
The California Uniform Parentage Act (the UPA) was passed in
1975 to extend the parent and child relationship equally to
every child and to every parent, regardless of the marital
status of the parents. The UPA defines "parent and child
relationship" as "the legal relationship existing between a
child and the child's natural or adoptive parents incident to
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which the law confers or imposes rights, privileges, duties, and
obligations." The term includes both mother and child, and
father and child relationships. (Family Code Section 7601.)
Family Code section 7610 lists ways the parent child
relationship may be established. Insofar as practical, the UPA
is to be interpreted to apply to both father-child and
mother-child relationships.
Since the enactment of the UPA, advances in science have led to
parent-child relationships created through use of various
reproductive technologies, including in vitro fertilization.
The California Supreme Court has made clear that a parent-child
relationship may be easily established in those situations as
well. Courts have held a woman may be found to be the natural
mother of a child by evidence of giving birth to the child,
genetic consanguinity, receiving the child into her home and
holding it out as her own, and the acted-upon intent to
procreate the child. Where two women have equal claims to
maternity under the UPA, a determination of which person
intended to procreate the child and raise it as their own
"breaks the tie." The Supreme Court has also found that a child
may have two parents, both of whom are women.
The seminal California case regarding in vitro fertilization,
Johnson v. Calvert (1993) 5 Cal.4th 84, involved a married
couple who sought a declaration that they were the legal parents
of a child born of a woman in whom the couple's fertilized egg
had been implanted. Relations between the couple and the
surrogate disintegrated, and the surrogate refused to turn over
the child after it was born. The California Supreme Court held
that Family Code section 7610 recognizes both genetic
consanguinity and giving birth as means of establishing a mother
and child relationship. When the two means do not coincide in
one woman, the woman who intended to procreate the child - that
is, who intended to bring about the birth of a child in order to
raise the child as her own - is the natural mother. ( Johnson ,
at 93.)
More recently, the California Supreme Court found a parent-child
relationship in a trio of cases involving same-sex parents, one
with a genetic link to the child and two without. In one case,
one woman provided the ova to the other woman who gave birth to
twins who were to be raised in the women's joint home. ( K.M. v.
E.G. (2005) 37 Cal.4th 130.) In another case, the court
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established parentage for a woman who had neither genetic link
nor given birth to the twins, but who received the children into
her home and held them out as her own. ( Elisa B. v. Superior
Court (2005) 37 Cal.4th 108.) In the third case, a couple had
secured a judgment that they were the only legal parents of a
child who was born to and had a genetic link to one of the
women. The court estopped that woman from disavowing the
validity of the judgment to which she had stipulated, thus
recognizing the parentage of the other woman who had neither
given birth to, nor had a genetic link to, the child. ( Kristine
H. v. Lisa R. (2005) 37 Cal.4th 156.)
Given the UPA and the clear holdings of the California Supreme
Court, a woman who gives birth to a child can establish a
parent-child relationship with that child. If the child was the
result of a donated embryo and the woman who donated the ova
seeks to challenge parentage, a court will establish parentage
for one or both women, based on who gave birth, who has a
genetic link to the child and who intended to bring the child
into being. A clear written agreement showing that the embryo
was donated to the birth mother for purposes of her having a
child should, under current law, resolve any and all doubts in
favor of the birth mother. Nothing in this bill would change
that process in any way or give the birth mother any greater
certainty to be adjudicated the child's mother.
Moreover, while certainly not the intention of the author, the
establishment of parentage could be more difficult in particular
cases. Depending on how the written agreement is drafted, it
could actually create additional uncertainties in parentage
cases where an embryo is implanted in a surrogate who gives
birth to a child, but is not the intended parent. Currently,
the law awards parentage to the person or persons whose acted-on
intent to procreate results in a child. This is because the
intended mother is not always the birth mother. However,
depending on how the agreement is drafted, a surrogate could
have a greater claim to parentage than the mother who was
intended, but for a poorly drafted agreement between the
parties. This would not only create uncertainties in the law,
but the results could run counter to the intentions of the
contracting parties.
This bill also has significant unintended consequences. By its
language, it would seem to allow for adoption of an embryo.
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Under California law, only a child can be adopted and an embryo
is not a child. Current law allows for the adoption of a legal
person whose birth parents have relinquished their parental
rights. Those who legally adopt a person are granted parental
rights and obligations. A donated embryo cannot be "adopted"
because it is not a person. Providing that an embryo can be
"adopted" could be used to establish personhood in the embryo.
The consequences of such a change in law could be quite
significant and dramatic.
ARGUMENTS IN OPPOSITION : The American Civil Liberties Union and
the American College of Obstetricians and Gynecologists oppose
the bill as unnecessary and argues that its attempt to give an
embryo the status of a person raise concerns with respect to
reproductive rights. Planned Parenthood concurs, arguing that
this bill attempts to "attribute personhood to embryos in direct
conflict with the constitutional protections articulated in Roe
v. Wade."
The Family Law Section of the State Bar (Flexcom) opposes
changing the section regarding natural mother, unless it is
amended, because they do not believe that the proposed changes
would actually provide additional clarity or certainty for
establishing parentage for children conceived through embryo
transfer. Flexcom suggests that changing the reference in
Family Code Section 7610(a) from "natural mother" to "birth
mother" would add that greater clarity. However, they suggest
that simply including embryo transfer and nothing else could
potentially exclude other methods of pregnancy. Therefore, they
suggest that a broader list be developed about what types of
scenarios might occur that could result in the birth of a child.
However, it is important to note that even if such a broad list
were developed, it could not possibly include every conceivable
scenario, and thus risk excluding certain valid cases.
Moreover, as scientific advancements are made, the list would
need to be continually updated to remain relevant. Therefore,
setting forth in statute any possible list of ways parentage may
be established for a natural or birth mother, risks excluding
from parentage other, perfectly valid cases.
Flexcom argues, in opposition to the provision establishing
adoption through an embryo transfer, that proof of adoption is
"already adequate to prove a parent-child relationship. There
is no need to separately address the method by which the child
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was conceived, or by which the child's birth mother was
impregnated."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
American Civil Liberties Union
American College of Obstetricians and Gynecologists
Family Law Section of the State Bar (unless amended)
NARAL Pro-Choice California
Planned Parenthood
Analysis Prepared by : Leora Gershenzon and Catherine
Gunderson / JUD. / (916) 319-2334