BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2344 (Ammiano)
As Amended June 9, 2014
Hearing Date: June 17, 2014
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family law: parentage
DESCRIPTION
This bill would create three optional forms to allow intended
parents to state their intention, in writing, to parent a child
conceived with the use of assisted reproduction. This bill
would provide that use of the forms would satisfy the existing
requirement of a "writing" under law, but the forms would not be
required to satisfy that requirement. The forms would cover the
following three situations:
married spouses or registered domestic partners using assisted
reproduction to conceive a child;
unmarried intended parents using an intended parent's sperm to
conceive a child; and
intended parents conceiving a child using eggs from one parent
when the other parent will give birth.
This bill would also establish a procedure for conducting a
stepparent adoption for children born to married spouses,
registered domestic partners, or partners in a civil union.
This bill would exempt these adoptions from the requirements of
(1) a home visit, (2) home study, (3) that the prospective
adoptive parent appear before the court, and (4) that the
prospective adoptive parent be liable for all reasonable costs,
unless otherwise ordered by the court for good cause.
This bill would also require, in a surrogacy agreement, a
disclosure of the manner in which intended parents will cover
the medical expenses of the gestational carrier and newborn.
(more)
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BACKGROUND
It is the policy of the State of California to establish
paternity for all children. The establishment of paternity
provides children with equal rights and access to benefits such
as health insurance, child support, and inheritance. (Fam. Code
Sec. 7570.) Under existing law, a child born during a marriage
to a wife who lives with her husband is conclusively presumed to
be the child of the marriage. (Fam. Code Sec. 7540.) For a
child born outside of a marriage, paternity may be established
by a voluntary declaration of paternity or through another legal
presumption of paternity. (Fam. Code Secs. 7573, 7611.) In the
event that two or more presumptions of paternity arise, the
court is required to find in favor of the presumption which on
the facts is founded on the weightier considerations of policy
and logic. (Fam. Code Sec. 7612.)
For most heterosexual couples, conception is achieved with the
woman's own eggs and the sperm of her male partner, making
parental identity straightforward. However, individuals and
couples are increasingly using assisted reproduction technology,
which can rely upon donor sperm, donor eggs, donor embryos, and
host wombs, thereby requiring the legal concept of parentage to
evolve.
Generally, donors of genetic material are treated under law as
though they are not the parents of a child conceived from that
material. For example, California's Family Code treats sperm
donors who are not married to the woman who conceives using the
donor's sperm as "if he were not the natural father of the child
thereby conceived, unless otherwise agreed to by the woman and
donor in writing prior to conception of the child. (Fam. Code
Sec. 7613(b).) In most of these cases, the law instead looks to
the "intended parents," as defined by the California Supreme
Court in Buzzanca v. Buzzanca (1998) 61 Cal.App.4th 1410, which
held that, regardless of who provides the eggs, sperm or uterus,
the intended parent(s) are "the first cause, prime movers, of
the procreative relationship." (Id. at 1424.) Therefore, a
parental relationship is often established when medical
procedures are initiated and consented to by the intended
parent(s), even in the absence of any biological relationship
between them and the child(ren) created. In other situations,
courts will look to an adult who has functioned as a parent to
the child, and determine whether he or she fits an existing
presumption under California law.
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The definition of what constitutes a family, or how a family is
created has been the source of legal tension which the
Legislature has sought to address. AB 1349 (Hill, Ch. 185,
Stats. 2011) distinguished between known sperm donors who
planned to co-parent with the mother and more traditional sperm
donors who gave their genetic material without any expectation
of parenting the child conceived. Last year, the Legislature
enacted AB 1403 (Committee on Judiciary, Ch. 510, Stats. 2013)
to update the Uniform Parentage Act (UPA) by codifying case law
which has applied presumptions of parentages neutrally with
regards to gender, and make the Act's provisions gender neutral
where appropriate. SB 115 (Hill, 2013) sought to clarify how
presumptions of parentage work in situations where an individual
is both a presumed father and a sperm donor. This bill seeks to
give further clarity to parentage and assisted reproduction in
California, and would create statutory forms for intended
parents to utilize when conceiving through assisted
reproduction, streamline stepparent adoption for married couples
or registered domestic partners, and clarify the financial
obligations of intended parents in surrogacy agreements.
CHANGES TO EXISTING LAW
1.Existing law , the California Uniform Parentage Act (UPA),
defines a parent and child relationship as the legal
relationship existing between a child and the child's natural
or adoptive parents incident to which the law confers or
imposes rights, privileges, duties, and obligations. The law
provides that a parent and child relationship includes the
mother and child relationship and the father and child
relationship. (Fam. Code Sec. 7600 et seq.)
Existing law provides that a person is a presumed parent if,
among other things: (1) he or she was married to the child's
mother and the child was born within 300 days of the marriage;
(2) he or she attempted to marry the child's mother; or (3) he
or she holds the child out as his or her own. (Fam. Code Sec.
7611.)
Existing law requires that the paternity presumptions be
applied gender neutrally. (Elisa B. v. Superior Court (2005)
37 Cal.4th 108.)
Existing law provides that, if two or more paternity
presumptions conflict with one another, the presumption that
is founded on the weightier considerations of policy and logic
controls, and further provides that a presumption of parentage
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is rebutted by a judgment establishing paternity of the child
by another person. (Fam. Code Sec. 7612.)
Existing law provides that paternity may be established by
voluntary declaration for unmarried parents, or through a
civil action brought by any interested party, as specified.
(Fam. Code Secs. 7630, 7570 et seq.)
Existing law 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. (Fam. Code
Sec. 7606.)
Existing law provides that the spouse of a woman who, with the
written 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. (Fam. Code Sec. 7613(a).)
Existing law 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. (Fam.
Code Sec. 7613(b).)
This bill would create optional statutory forms which would
allow intended parents to state, in writing, their intent to
parent a child being conceived through use of assisted
reproduction. This bill would provide that the forms shall
satisfy the writing requirement under Section 7613, but do not
affect any presumptions or claims of parentage based on
existing statute or case law. The created forms would address
the following situations:
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;
unmarried, intended parents using sperm donated from one
of the intended parents; and
intended parents conceiving a child with eggs donated
from one of them, while the other will give birth.
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1.Existing law prohibits parties to an assisted reproduction
agreement for gestational carriers (surrogacy agreement), as
defined, from undergoing an embryo transfer or commencing
injectable medicine prior to the execution of the surrogacy
agreement. Existing law requires that both parties to an
agreement be represented by separate, independent counsel
prior to the signing of the surrogacy agreement, that the
surrogacy agreement include the identity of the intended
parent(s) and, unless anonymously donated, the persons from
which the gametes originate. (Fam. Code Sec. 7962.)
Existing law provides that a party to a surrogacy agreement
may bring an action at any time to establish a parent-child
relationship consistent with the intent expressed in the
surrogacy agreement, and requires the court, upon petition by
any party to a surrogacy agreement, to issue an order
establishing parentage. (Fam. Code Secs. 7630, 7962.)
This bill would provide that a surrogacy agreement must
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, this bill would
require that the disclosure include a review of insurance
policy's provisions related to coverage for a surrogate
pregnancy, including any possible liability for the
gestational carrier and any notice requirements that could
impact coverage or liability for the gestational carrier.
2.Existing law provides a streamlined adoption procedure for a
stepparent to adopt a stepchild, which requires an
investigation of the proposed adoption, that the prospective
parent appear before the court, and a fee, but does not
generally require a homestudy. (Fam. Code Sec. 9000 et seq.)
This bill would create a stepparent adoption process for
children born to married spouses, registered domestic
partners, or civil union partners. This bill would exempt, for
these stepparent adoptions, the investigation, fees, and
hearing required for other stepparent adoptions, unless the
court, for good cause, orders otherwise.
This bill would require the court to grant the stepparent
adoption if the court finds the following:
the parent who gave birth and the spouse, registered
domestic partner, or partner in a civil union, were married
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or in the registered domestic partnership or civil union
when the child was born; and
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.
COMMENT
1.Stated need for the bill
According to the author:
Medical advances in Assisted Reproductive Technology (ART)
have allowed many individuals and couples to become parents.
Where the medical advances are ahead, our family code statutes
are shamefully behind. AB 2344, the Modern Family Act, updates
three ART related situations, removing barriers that intended
parents, donors, and surrogates experience in the law.
[This bill would also fix] a huge inequity for couples who are
married or registered domestic partners and a child is born
into their legal family, but their child's birth certificate
is not legally recognized outside of California state borders.
These families may avail themselves of stepparent adoption to
have a court order of legal parentage that is granted
reciprocity in all jurisdictions. Stepparent adoptions range
in cost from $700 to several thousand dollars when hiring
attorneys for each parent. This bill would waive the fees and
allow a couple who meets specified criteria to complete a
streamlined stepparent adoption as long as the court agrees
there is no other claim to parentage.
Finally? many health care plans contain hard to find
exclusions for surrogate pregnancy in their Evidence of
Coverage. The result sometimes culminates in a lien on the
earnings of the surrogate to cover the pregnancy and delivery
related health care service. The other complication is when,
and under whom, should a baby born from a surrogate, be
enrolled in health insurance. Some hospitals/insurers
automatically enroll newborns with their birth mothers which
should not be the case with a surrogacy birth. Clarifying the
gestational carrier contract to include disclosure of health
insurance coverage for the surrogate and the child or children
will clarify these complications for families using surrogacy.
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2.Statutory forms for assisted reproduction
Existing law, the Uniform Parentage Act (UPA), provides a number
of ways a person may be legally considered a parent of a child,
or establish a parent and child relationship. These
presumptions of parentage can arise by nature of giving birth, a
biological connection to the child, because of one's marital
status, or a person's status as a domestic partner. California
law also presumes that a person is a parent if he or she has
received a child into his or her home and has openly held that
child out as his or her own, and allows a man who signs a
voluntary declaration of paternity to be presumed a legal
father. (Fam. Code. Secs. 7573, 7574, 7611.) For couples using
assisted reproduction, establishing parentage often requires a
review of the parties' intent at the time of conception.
Last year in an unpublished opinion, a California trial court
expressed discomfort in holding that a biological father was
precluded from proving a parent and child relationship. In that
particular case, the petitioner and respondent had
unsuccessfully tried to conceive during their relationship. At
one point the petitioner donated his semen to be used by
respondent, but did not sign the necessary agreement for him to
be a legal parent. Subsequently, the couple reunited and the
petitioner and respondent raised the child together. Ultimately
the relationship fell apart, and the petitioner attempted to
establish himself as the natural and legal parent of his child.
The court concluded that existing law precluded the petitioner
from being treated as the natural father of the child and thus,
from asserting his status as a presumptive parent as well. That
decision has since been vacated remanded by the appellate court,
which found that the petitioner should be able to have his claim
of parentage heard by the trial court.
That particular case was the impetus for SB 115 (Hill, 2013),
which led to a working group focused on clarifying exactly who
an intended parent is in various situations utilizing assisted
reproduction. As a result, the following three optional forms,
which will satisfy the "writing" requirement under existing law,
were created to allow individuals to clearly demonstrate their
intent to be parents.
a) Form 1: Spouses or registered domestic partners using
assisted reproduction
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This form was designed for married spouses, registered
domestic partners, or civil union partners who are using
donated sperm through a licensed physician or sperm bank to
conceive, and one spouse will give birth to the child. This
form would apply whether the donated sperm belonged to a
spouse or another donor. Existing law requires the spouse who
is not giving birth to consent to the assisted reproduction in
a writing, and requires the writing to be signed by both
spouses. (Fam. Code Sec. 7613(a).) This form will satisfy
that writing.
This form would also provide a warning that the signing of the
form will not "terminate the parentage of a sperm donor, who
is treated only as a sperm donor if the sperm is provided to a
licensed physician or sperm bank." The following amendment
would further clarify that a donor's claim to parentage is not
terminated by signing the form, and clarify that there may
also be a donor in a non-medical setting.
Author's amendment:
1. Page 3, line 33, after "parentage" insert "claim"
2. Page 3, line 34, after the first "donor" insert ". A
sperm donor's claim to parentage is terminated"
3. Page 3, line 34, strike "who is only treated as a
sperm donor"
This form would further instruct individuals that parentage
laws are complicated and encourage prospective parents to seek
the advice of an attorney, and that any child born out of a
marriage or domestic partnership is presumed to be the child
of the spouse or domestic partner.
a) Form 2: Unmarried, intended parents using intended
parent's sperm to conceive a child
This form was designed for unmarried (and not domestic
partners or in a civil union), intended parents who are using
assisted reproduction through a licensed physician or sperm
bank to conceive a child who will be genetically related to
both parents. Under existing law, 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. If
executed prior to conception, this form could be used to show
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that intent.
This form would clearly state that it is not appropriate for
use with a surrogate, and would provide a warning that failure
to sign the form will result in the intended father being
treated as a sperm donor under the law. Staff notes that
because the form is optional and the legal requirements the
form satisfies could be satisfied under a different writing,
the warning in Form 2 is not entirely accurate. Accordingly,
the author offers the following amendment.
Author's amendment:
1. Page 5, line 27, strike "will" and insert "may"
a) Form 3: Intended parents conceiving a child using eggs
from one parent and the other parent will give birth
This form was designed for intended parents that are two
women, where one donates her eggs to the other woman who
carries the child, and both intend to be parents. This form
would provide a warning to intended parents that "signing this
form does not terminate the parentage of a sperm donor." The
following amendments would clarify that signing this bill
would not terminate a parentage claim, and clarify that there
are potentially also donors in a non-medical setting.
Author's amendment:
1. Page 7, line 18, after "parentage" insert "claim"
2. Page 7, line 19, after the first "donor" insert ". A
sperm donor's claim to parentage is terminated"
3. Page 7, line 19, strike "who is only treated as a
sperm donor"
This form would further instruct individuals that parentage
laws are complicated and encourage prospective parents to seek
the advice of an attorney.
1.Stepparent adoption
Absent any challenges to parentage, children born to married
couples and domestic partners are treated under California law
as children of the couple. However, in states that do not
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recognize same-sex marriages, domestic partnerships, or civil
unions, children from these partnerships may not be recognized
as a same-sex couples' legal children. Same-sex parents have
therefore utilized stepparent adoption, which is granted
reciprocity in all jurisdictions, to ensure that their legal
rights are protected when traveling or relocating to another
state.
Stepparent adoption allows the spouse or domestic partner of a
child's parent to adopt that child. It is the most common type
of adoption in California, and simpler than other types of
adoption because it involves only a prospective parent. In a
stepparent adoption, the petition is investigated by the county
and a social worker's report is submitted to the court for
review. The prospective parent must appear before the court, and
is liable for all reasonable costs, including, but not limited
to, costs incurred for the investigation. This bill would
create a simplified stepparent adoption process that would allow
a court to recognize the stepparent adoption without an
investigation, a hearing, or the costs associated with the
investigation, for children born into a marriage, domestic
partnership, or civil union.
To qualify for the simplified stepparent adoption, parties would
be required to file a copy of their marriage certificate,
registered domestic partner or civil union certificate, and the
child's birth certificate with the court. The parties would
also be required to submit declarations explaining the
circumstances of the child's conception in sufficient detail to
identify whether there may be others with a claim to parentage.
Although this bill would eliminate the hearing required for
traditional stepparent adoptions, it would allow the court 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. The court would then be 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 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.
Arguably, the above provisions would streamline the stepparent
adoption process considerably, while still giving the court the
ability to order further review if necessary to protect the
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rights of parties and those who are not present before the
court. This procedure should help protect same-sex families
when they travel to states that do not recognize their union.
2.Disclosures in surrogacy agreements
Existing law requires intended parents, who plan to use a
surrogate carrying a donated embryo, to execute an assisted
reproduction agreement for gestational carriers (surrogacy
agreement) prior to undergoing the embryo transfer or any
injectable medicine. The parties must also be represented by
separate, independent counsel prior to signing the surrogacy
agreement. Upon petition by a party to a properly executed
surrogacy agreement, the court must issue an order establishing
parentage for the intended parents, as provided. (Fam. Code
Sec. 7962.)
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. For
example, while Kaiser Permanente covers pregnancy, it
specifically lists "surrogacy" as an exclusion. Further, Kaiser
provides that individuals who enter into a surrogacy agreement
must pay Kaiser for services received related to conception,
pregnancy, delivery, or postpartum care in connection with the
arrangement. Kaiser also asserts that "by accepting surrogacy
health services, you automatically assign to us your right to
receive payments that are payable to you or any other payee
under the surrogacy agreement?To secure our rights, we will also
have a lien on those payments and on any escrow account, trust
or any other account that holds those payments." (Kaiser
Permanente, Important plan information, Jan. 31, 2014, pp. 24,
47 and 49.) It appears that surrogate pregnancies may be covered
under Anthem BlueCross's policy, as long as the surrogate holds
the insurance policy. Health Net also covers surrogate
pregnancies, but treats surrogate compensation similarly to
Kaiser, and provides that any "intentional misrepresentation of
material fact under terms of the agreement are grounds for
immediate termination of the policy. (Health Net, Plan Contract
and Evidence of Coverage, pp. 35 and 69.) Thus, health coverage
is at best unclear. More troubling is the fact that surrogates
may run the risk of not getting paid for services rendered
because of liens against their earnings, or insurance fraud
which could result in an immediate termination of a policy. New
Life Agency, a licensed insurance agency specializing in
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coverage for the reproductive health community, writes: ACA
policies require coverage of pregnancy, but few understand that
the coverage is qualified by the insurer or HMO's ability to
assert a "third party" lien or claim the existence of "other
coverage" when third party (to the insurance contract) intended
parents are involved. The most typical example of third party
liens is when an insured incurs medical costs because of an auto
accident caused by a third party. When the responsible third
party compensates the insured, the insurer or HMO is legally
able to require repayment for services they covered. So, while
technically it would appear there is coverage for pregnancy,
saying unqualified coverage exists is misleading when repayment
is demanded.
Further, some policies require notification of a surrogate
pregnancy or of a third party responsibility. Failure to
notify could be considered a material breach of the policy,
leaving the surrogate completely responsible for costs, even
above her compensation from the "third party". This confusion
creates litigation that could be avoided with simple clarity.
Surrogates can sue the intended parents to be indemnified for
her unexpected costs, but the reality is that lawsuits can be
expensive, don't provide immediate relief from the surrogate's
creditors and be of limited effectiveness particularly when
suing parents whom have returned to their country of origin.
Accordingly, this bill would require that the surrogacy
agreement disclose how the intended parents will cover the
medical expenses of the surrogate and the newborn baby. If
health insurance is being used to cover those expenses, this
bill would require that the disclosure include a review of the
health insurance policy's provisions related to the surrogate
pregnancy, including any possible liability of the surrogate and
any notice requirements that could impact coverage or the
liability of the surrogate or the newborn. These disclosure
requirements will not change existing insurance policies, but
will arguably ensure that the intended parents and surrogate are
informed about what their particular policies cover, and any
expenses that could arise from a lapse in coverage.
Support : California Cryobank; Equality California; National
Center for Lesbian Rights; National Organization for Women; New
Life Agency; Our Family Coalition; A number of individuals
Opposition : California Right to Life Committee
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HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1403 (Committee on Judiciary, Chapter 510, Statutes of 2013)
See Background.
SB 274 (Leno, Chapter 564, Statutes of 2013) authorized a court
to find that more than two persons with a legal claim to
parentage are parents if the court finds that recognizing only
two parents would be detrimental to the child.
SB 1476 (Leno, 2012) would have authorized a court to find that
a child has more than two legal parents if in the best interest
of the child. This bill was vetoed by Governor Brown.
AB 1217 (Fuentes, Chapter 466, Statutes of 2012) required a
surrogate mother and the intended parent(s), each represented by
independent counsel, to execute a notarized or witnessed
surrogacy agreement before the mother can begin medication for
assisted reproduction.
AB 2356 (Skinner, Chapter 699, Statutes of 2012) excepted sperm
donated by a sexually intimate partner of the recipient from
second or repeat testing, as specified, if the recipient is
informed of the testing requirements and signs a written waiver.
Defined "sexually intimate partner" to include a known or
designated donor to whose sperm the recipient had previously
been exposed in a nonmedical setting in an attempt to conceive.
AB 1349 (Hill, Chapter 185, Statutes of 2011) provided that a
voluntary declaration of paternity is invalid under specified
circumstances, allowed a presumed parent to bring a motion set
aside the voluntary declaration within a specified amount of
time, and provided that a sperm donor would not be considered
the natural father unless otherwise agreed to in writing.
AB 25 (Migden, Chapter 893, Statutes of 2001) authorized the
employment of the procedures applicable to stepparent adoption
to the adoption by a domestic partner of the child of his or her
domestic partner.
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Prior Vote :
Assembly Floor (Ayes 62, Noes 4)
Assembly Appropriations Committee (Ayes 13, Noes 1)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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