BILL ANALYSIS �
AB 2344
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2344 (Ammiano) - As Amended: April 28, 2014
SUBJECT : Assisted reproduction and parentage
KEY ISSUE : SHOULD CHANGES BE MADE TO THE FAMILY CODE TO HELP
INTENDED PARENTS BY: (1) CREATING OPTIONAL FORMS TO DEMONSTRATE
THE PARTIES' INTENT TO PARENT A CHILD; (2) MAKING ADDITIONAL
DISCLOSURES IN THE SURROGACY AGREEMENT ABOUT MEDICAL CARE; AND
(3) CREATING A SIMPLIFIED STEPPARENT ADOPTION PROCESS FOR
MARRIED SPOUSES WHOSE MARRIAGE MAY NOT YET BE RECOGNIZED IN ALL
JURISDICTIONS?
SYNOPSIS
This bill, known as the Modern Family Act, makes three changes
to support intended parents using assisted reproduction to
create families and same-sex couples whose unions may not be
recognized in other jurisdictions. First, this bill provides
optional, statutory forms to help couples in three narrow
situations demonstrate their intent to be parents. Second, the
bill requires that assisted reproduction agreements with
surrogates, using donated embryos, contain information on
medical coverage for the surrogate and the newborn. Finally,
the bill simplifies the stepparent adoption process for married
couples or registered domestic partners whose marriage or
domestic partnership might not be recognized in another
jurisdiction and, hence, legal parentage for the children of the
marriage might not be recognized there without the adoption.
The author writes that family law is shamefully behind medical
advances in reproductive technology and that the Modern Family
Act is needed to remove barriers that intended parents, donors
and surrogates experience with the law today. The bill is
supported by the National Center for Lesbian Rights and the New
Life Agency, but opposed by the California Right to Life
Committee.
SUMMARY : Makes changes to assist families using assisted
reproduction to conceive children. Specifically, this bill :
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1)Creates optional forms to allow intended parents to state, in
writing, their intention to parent a child being conceived
through use of assisted reproduction. States that the forms
do not affect any presumptions or claims of parentage based on
existing statute or case law. The created forms address the
following situations:
a) Married spouses or registered domestic partners (or
civil union partners from another state) who are using
assisted reproduction to conceive and one partner will be
giving birth.
b) Unmarried, intended parents using sperm donated from one
of the intended parents.
c) Intended parents conceiving a child with eggs donated
from one of them, while the other will give birth.
2)Requires that an assisted reproduction agreement for
gestational carriers (a surrogacy agreement) include a
disclosure of how the intended parents will cover the medical
expenses of the gestational carrier and the newborn. If
health insurance will be used, requires that the disclosure
include a review of insurance policy's provisions related to
coverage for surrogate pregnancy, including any possible
liability for the gestational carrier and any notice
requirements that could impact coverage or liability for the
gestational carrier.
3)Creates a streamlined stepparent adoption process for children
born to married spouses, registered domestic partners, or
civil union partners to ensure recognition of parentage in
states that may not recognize the marriage, domestic
partnership or civil union and the establishment of parentage
that flow from those unions. In particular, provides that the
investigation, fees and hearing required for other stepparent
adoptions are not required, unless the court, for good cause,
orders otherwise. Requires a court to grant the stepparent
adoption if the court finds that (a) the parent who gave birth
and the spouse or registered domestic partner or partner in a
civil union were married or in the registered domestic
partnership or civil union when the child was born; and (b)
any other person with a claim of parentage to the child who is
required to receive notice of, or who must consent to, the
adoption, has been notified or provided the required consent.
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EXISTING LAW :
1)Establishes the California Uniform Parentage Act (UPA).
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. (Family Code
Section 7600 et seq. Unless stated otherwise, all further
statutory references are to that code.)
2)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. (Family
Code Section 7606.)
3)Provides that the spouse of a woman who, with the consent of
her spouse, conceives through assisted reproduction with the
sperm of a man other than her spouse, is treated in law as
though he or she is the child's natural parent. Requires that
the spouse's consent be in writing and signed by both spouses.
(Section 7613(a).)
4)Provides that a donor of semen to a licensed physician or
sperm bank for use in assisted reproduction of a woman other
than the donor's spouse is treated in law as if he were not
the natural parent of the child thereby conceived, unless
otherwise agreed to in a writing signed by the donor and the
woman prior to the conception of the child. (Section
7613(b).)
5)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.)
6)Provides that a party to an assisted reproduction agreement
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may bring an action at any time to establish a parent-child
relationship consistent with the intent expressed in the
agreement. Requires the court, upon petition by any party to
an assisted reproduction agreement for gestational carriers,
to issue an order establishing parentage. (Sections 7630,
7962.)
7)Provides a streamline adoption procedure for a stepparent to
adopt a stepchild. Requires an investigation of the proposed
stepparent adoption, as specified, including payment of a fee,
but does not require a homestudy, unless the court orders
otherwise. Requires that the prospective adoptive parent
appear before the court, as required. (Section 9000 et seq.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill makes three changes to support intended
parents using assisted reproduction to create families and
same-sex couples whose unions may not be recognized in other
jurisdictions. First, this bill provides optional, statutory
forms to help couples in three narrow situations demonstrate
their intent to be parents. Second, the bill requires that
assisted reproduction agreements with surrogates, using donated
embryos, contain information on medical coverage for the
surrogate and the newborn. Finally, the bill simplifies the
stepparent adoption process for married couples or registered
domestic partners whose marriage or domestic partnership might
not be recognized in another jurisdiction and, hence, legal
parentage for the children of the marriage might not be
recognized there without the adoption.
In support of the bill, the author writes: "Medical advances in
Assisted Reproductive Technology (ART) have allowed many
individuals and couples to become parents. Whereas the medical
advances are ahead, our family code statutes are shamefully
behind. AB 2344, the Modern Family Act, updates three (3) ART
related situations, removing barriers that intended parents,
donors and surrogates experience in the law."
Intended Parents of a Child Born Using Assisted Reproduction
Technology are the Child's Parents : Two cases have established
that intended parents in assisted reproduction are the legal
parents of the child so conceived. In the first case, Johnson
v. Calvert (1993) 5 Cal. 4th 84, a married couple entered into a
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contract with a surrogate to have an embryo created with the
couple's genetic material implanted in the surrogate. The
parties had a falling out and the parents and the surrogate
brought separate legal actions to be declared the unborn child's
parents. The trial court consolidated the actions, determined
that the married couple was the child's biological and natural
parents, and terminated the visitation rights that the surrogate
had obtained in an earlier temporary order. The Supreme Court
affirmed, holding that when the two methods of recognizing
parentage in women - genetic evidence of parentage and giving
birth to the child - occur in two separate women, the woman who
intended that the child be born is the child's legal mother.
Five years later, a more complicated fact pattern arose again in
In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, but with
the same ultimate result. In that case, the intended parents
did not have a genetic link to the child, but instead entered
into a contact with a surrogate to have a fertilized egg from
donors unrelated to the couple implanted in the surrogate. Just
days prior to the birth of that child, the husband filed for
dissolution alleging there were no children of the marriage.
The wife filed her own action to be declared the child's mother.
The trial court accepted the stipulation of the surrogate and
her husband that they were not the parents, but then determined
that the wife was not the mother of the child and that,
therefore, neither was the husband, effectively leaving the
child as a legal orphan.
The court of appeals reversed, holding that if a man who
consents to artificial insemination of his wife with donor sperm
is considered the father of the child so conceived, "there is no
reason the result should be any different in the case of a
married couple who consent to in vitro fertilization by unknown
donors and subsequent implantation into a woman who is, as a
surrogate, willing to carry the embryo to term for them." (Id.
at 1418.)
Both of these cases make clear that, with or without a genetic
link, the parties who intend to bring a child into the world are
the child's legal parents. The Legislature affirmed this in AB
1217 (Fuentes), Chap. 466, Stats. 2011, which clarified the
parentage rights of parties using a surrogate and donated
embryos, and specified terms of the required agreement.
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Simplified Forms to Demonstrate Parentage for Intended Parents
Using Assisted Reproduction : Legal parenthood can be
established in a number of different ways. A person is
conclusively presumed to be the parent of a child if he or she
was married to, or in a registered domestic partnership with,
and cohabitating with the child's parent, except as specified.
A person who receives a child into his or her home and holds the
child out as his or her own is also presumed a parent of the
child. A person who signs a voluntary declaration of paternity
is presumed to be the legal parent of a child. Most recently,
SB 274 (Leno) allowed a court, where there are more than two
people who have established claims or presumptions of parentage
under existing California law, to recognize more than two
parents, but only if it would be detrimental to the child not to
do so.
For couples using assisted reproduction to conceive children,
establishing parentage often requires a review of the parties'
intent at the time of conception. The author writes: "In the
case of a married couple using donor gamete, where one or both
of the intended parents are not the genetic donor, a statutory
intent to parent form helps to clarify the intent of the parties
engaging in [assisted reproduction technology] to become a
family. An unmarried couple, who doesn't have the protection of
marriage or genetics, is even more at risk, which is why we are
codifying an intent to parent form for these couples. Finally,
in the situation of a female-female couple where one is using
her gamete and the other gives birth to genetically unrelated
child(ren), a form is imperative to assert intent to parent."
This bill creates three optional, simplified forms to allow
intended parents, in these three particular situations, to
demonstrate clearly their intent to be parents. The situations
are:
Form 1: Designed for married spouses or registered domestic
partners (or civil union partners from another state) who are
using donated sperm through a licensed physician or sperm bank
to conceive and one spouse will give birth to the child.
Section 7613(a) requires the spouse who is not giving birth to
consent to the assisted reproduction in a writing signed by
both spouses. This form will satisfy that writing.
Form 2: Designed for unmarried, intended parents (who are
also not registered domestic partners and not in a civil
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union) who are using assisted reproduction through a licensed
physician or sperm bank to conceive a child who will be
genetically related to both parents. The intended parents
will be using the man's sperm in the assisted reproduction.
Under Section 7613(b), an unmarried man who does not, prior to
conception, consent in writing to be the intended parent is
not considered a parent of the child. This form can be used
to show that intent, if executed prior to conception.
Form 3: Designed for intended parents conceiving a child with
eggs donated from one of the intended parents and the other
intended parent giving birth. This situation involves two
women, where one of them donates her eggs to the other woman
and both intend to be parents. A writing is needed to clearly
demonstrate their intent.
All three of these optional forms evidence the intended parents'
desire to conceive a child that they wish to parent. These
forms are strictly optional -- intended parents may evidence
their intent using any other writing. Moreover, because
parentage laws can be very complicated, the forms make clear
that the parties are strongly encouraged to consult an attorney
to better understand their rights and responsibilities. And
while the forms may demonstrate the intent of the parties
executing them, they do not in any way disestablish the
parentage rights of any other person, nor do they affect any
presumptions of parentage.
Concern has been raised that the mere legislative creation of
these optional forms will allow parties in existing parentage
actions to claim that they would have executed these forms, had
they existed at the time their children were conceived, and thus
prove their intent to parent. As a result, concerns have been
raised that these litigants may try to argue that they should
now be recognized as parents, even if they failed to demonstrate
their intent at the time of conception. However, these forms
are clearly intended to operate prospectively only. Frankly, it
would be impossible for a new form to operate retroactively.
The legislative creation of these optional forms should, in no
way, impact any existing cases where evidence of intent would
have had to have been demonstrated prior to conception and prior
to creation of these forms.
Additional Disclosure on Health Insurance Added to Required
Surrogacy Agreement : Current law requires that intended
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parents, who plan to use a surrogate carrying a donated embryo,
must execute an assisted reproduction agreement prior to
undergoing the embryo transfer. The rules for the agreement are
fairly detailed. The parties must be represented by separate,
independent counsel prior to signing the agreement. The
agreement must identify the intended parent or parents and,
unless anonymously donated, the persons from whom the gametes
(eggs and sperm) originate. Any party to the agreement can file
the agreement in court, either before or after the child's
birth. Upon petition by a party to a properly executed
agreement, the court must issue an order establishing parentage
for the intended parents, as provided.
Although it is presumed that intended parents agree to cover all
medical expenses of the surrogate and the newborn, concerns have
been raised that if those medical expenses are covered using
health insurance, surrogates may not be properly covered. The
surrogate's health insurance might not cover a surrogate
pregnancy. If the insurance company later learns that the
pregnancy was the result of a surrogacy agreement, it may try to
recoup what it had paid out and could place liens on the
surrogate's income, including her surrogacy fees. In addition,
health insurance companies or hospitals may require notice that
the pregnancy is part of a surrogacy agreement or may not fully
cover the pregnancy.
In support of this part of the bill, New Life Agency, an
insurance agency specializing exclusively in assisted
reproduction insurance and the sponsor this part of the bill,
writes that "transparency, simplicity, clarity and consistency
are not words that can be used currently to describe surrogacy
coverage. It is a multidimensional maze that can flummox even
the most experienced. The problem screams for a legislative
remedy to gain transparency and clarity and avoid disaster. Why
not now insist on knowing about coverage and costs upfront,
prior to conception. This simple act could avoid litigation,
financial loss, insurance fraud and heartbreak for all
concerned."
To address these concerns, this bill requires that the surrogacy
agreement disclose how the intended parents will cover the
medical expenses of the surrogate and the baby. If health
insurance is being used to cover those expenses, the bill
requires that the disclosure include a review of the health
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insurance policy's provisions related to the surrogate
pregnancy, including any possible liability of the gestational
carrier and any notice requirements that could impact coverage
or the liability of the gestational carrier. While this
provision will not guarantee that everything will be done
properly and that the surrogate and the newborn will receive the
needed coverage, it will put all parties on notice of what is
required to ensure that coverage is provided to the surrogate
according to the rules of the insurance company.
Simplified Stepparent Adoption Process for Children Born to a
Marriage, Domestic Partnership or Civil Union That Other States
May Not Recognize : Children born to married couples or couples
in domestic partnerships in California are treated by law as
children of the couple. Both parents' names go on the birth
certificate and nothing more need be done to establish
parentage. While parentage may be challenged in very limited
ways, assuming no such challenge, parentage is not legally
questioned.
Currently, however, some states refuse to recognize same-sex
marriages, domestic partnerships or civil unions and, as a
result, may refuse to recognize that the children born to those
unions are the children of both parents. These states' refusal
to recognize same-sex marriages is currently being challenged
across the country, at both the trial court and appellate court
level, and at least one of those cases will eventually wind up
before the Supreme Court, which will likely ultimately decide
the issue. However, until that time, same-sex couples who are
legally married in California or who are registered domestic
partners and who have children from those unions, run the risk
of not being recognized as their children's legal parents when
they travel to one of the state that will not recognize their
union.
This bill seeks to address this significant concern by creating
a simplified stepparent adoption process for parents who are
already recognized by California law as being their children's
legal parents, but who want adoption papers to protect their
family in other jurisdictions. This bill creates a simplified
stepparent adoption process that allows the court to recognize a
stepparent adoption, without a hearing or a homestudy or
investigation, or the costs associated with that investigation,
for children born to a marriage or domestic partnership,
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including a registered domestic partnership or civil union from
another state.
The parties must file with the court a copy of their marriage
certificate, registered domestic partner or civil union
certificate, along with the a copy of the child's birth
certificate. The adoption petition must also include
declarations by the parent who gave birth and the spouse or
partner who is adopting the child explaining the circumstances
of the child's conception in sufficient detail to identify
whether there may be others with a claim to parentage of the
child who may be required to receive notice of, or who must
consent to, the adoption. The court is required to waive the
homestudy and hearing, unless the court, for good cause, orders
otherwise. The court is allowed to order a hearing if needed to
ascertain whether there are additional individuals who must be
provided notice of, or who must consent to, the adoption, if it
appears from the face of the pleadings and evidence presented
that proper notice or consent have not been provided. This
streamlines the stepparent adoption process considerably, but
gives the court the ability to order further review if necessary
to protect everyone's rights.
The court is required to grant the stepparent adoption if it
finds that: (1) The parent who gave birth and the spouse or
partner who is adopting were married or in a domestic
partnership (including a registered domestic partnership or
civil union from another jurisdiction) at the time of the
child's birth; and (2) any other person who may have a claim of
parentage to the child who is required to be provided with
notice of, or who must consent to, the adoption has been noticed
and/or provided their consent to the adoption.
This streamlined procedure should help protect same-sex families
when they travel to states that still refuse to recognize their
union and their children. While it is hoped that this soon may
not be necessary, until then, these parents and their children
need to be legally recognized wherever they travel and wherever
they move.
ARGUMENTS IN OPPOSITION : This bill is opposed by the California
Right to Life Committee (CRLC), which writes:
CRLC, Inc. considers this bill as another maneuver to
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break down family structure as recognized for centuries.
The use of assisted reproduction for the purpose of
creating a family turns the inherent dignity of a child up
side down.
Frustrated women and men can seek children for selfish
reasons. Children can become a commodity and an entity
desired by parents and not desired for the joy of the child
for him or herself. Assisted reproduction can lead to men
and women choosing the gender and DNA traits of baby they
wish to parent.
Men and women can go "shopping" for a potential child in
fertility clinics and agencies around the world. Websites
and conferences detail how to choose a baby to one's
liking.
Finally, AB 2344 promotes "reproductive parity and equity"
for same sex couples who can not conceive normally.
Therefore, promoting more definitions of parents who
legally could be called "parent" demeans the family and
should not be added to the Family Code.
REGISTERED SUPPORT / OPPOSITION :
Support
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National Center for Lesbian Rights
New Life Agency
One individual
Opposition
California Right to Life Committee
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334