BILL ANALYSIS �
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THIRD READING
Bill No: AB 2344
Author: Ammiano (D)
Amended: 6/24/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/17/14
AYES: Jackson, Corbett, Lara, Leno, Monning, Vidak
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 62-4, 5/19/14 - See last page for vote
SUBJECT : Family law: parentage
SOURCE : Author
DIGEST : This bill creates 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 provides that use of the forms satisfy the existing
requirement of a "writing" under law, but the forms are not be
required to satisfy that requirement. The forms cover the
following three situations: (1) married spouses or registered
domestic partners using assisted reproduction to conceive a
child; (2) unmarried intended parents using an intended parent's
sperm to conceive a child; and (3) intended parents conceiving a
child using eggs from one parent when the other parent will give
birth. This bill also establishes a procedure for conducting a
stepparent adoption for children born to married spouses,
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registered domestic partners, or partners in a civil union, and
exempts these adoptions from specified requirements.
ANALYSIS : 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.
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, and requires that
the paternity presumptions be applied gender neutrally.
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
is rebutted by a judgment establishing paternity of the child by
another person.
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.
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.
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.
Existing law provides that a donor of semen to a licensed
physician or sperm bank for use in assisted reproduction of a
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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.
This bill creates optional statutory forms which allow intended
parents to state, in writing, their intent to parent a child
being conceived through use of assisted reproduction. This bill
provides 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.
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.
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.
This bill provides that a surrogacy agreement must include a
disclosure of how the intended parents will cover the medical
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expenses of the gestational carrier and the newborn. If health
insurance is to be used, this bill requires 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 might impact coverage or liability for the
gestational carrier.
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.
This bill creates a stepparent adoption process for children
born to married spouses, registered domestic partners, or civil
union partners. This bill exempts, for these stepparent
adoptions, the investigation, fees, and hearing required for
other stepparent adoptions, unless the court, for good cause,
orders otherwise.
This bill requires 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
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.
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. 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. For a child born outside of a marriage, paternity may
be established by a voluntary declaration of paternity or
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through another legal presumption of paternity. 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.
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. 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." 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.
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, Chapter 185,
Statutes of 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 (Judiciary Committee, Chapter 510, Statutes of
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
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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.
Prior Legislation
SB 274 (Leno, Chapter 564, Statutes of 2013) authorizes 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) requires 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) excepts 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.
Defines "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) provides that a
voluntary declaration of paternity is invalid under specified
circumstances, allows a presumed parent to bring a motion set
aside the voluntary declaration within a specified amount of
time, and provides 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) authorizes 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
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SUPPORT : (Verified 8/1/14)
California Cryobank
California National Organization for Women
Equality California
National Center for Lesbian Rights
New Life Agency
Our Family Coalition
RESOLVE
Sharp Mary Birch Hospital
OPPOSITION : (Verified 8/1/14)
California Right to Life Committee
ARGUMENTS IN SUPPORT : 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
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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.
ARGUMENTS IN OPPOSITION : The California Right to Life
Committee (CRLC), writes, "CRLC, Inc. considers this bill as
another maneuver to 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
upside 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 cannot 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."
ASSEMBLY FLOOR : 62-4, 5/19/14
AYES: Achadjian, Alejo, Ammiano, Bloom, Bocanegra, Bonilla,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Ch�vez, Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman,
Fong, Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Hagman, Hall, Harkey, Roger Hern�ndez, Holden,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Medina, Mullin, Muratsuchi, Pan, Perea, John A. P�rez, V.
Manuel P�rez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,
Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Weber,
Wieckowski, Williams, Yamada, Atkins
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NOES: Donnelly, Grove, Jones, Patterson
NO VOTE RECORDED: Allen, Bigelow, Conway, Dahle, Fox, Beth
Gaines, Mansoor, Melendez, Nazarian, Nestande, Olsen, Waldron,
Wilk, Vacancy
AL:nl 8/5/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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