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AB 960
THIRD READING
Bill No:
Author:
Amended:
Vote:
AB 960
Chiu (D), et al.
6/19/15 in Senate
21
SENATE JUDICIARY COMMITTEE: 5-0, 7/7/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Moorlach, Anderson
ASSEMBLY FLOOR: 71-0, 5/18/15 - See last page for vote
SUBJECT: Parentage: assisted reproduction
SOURCE: Equality California
National Center for Lesbian Rights
Our Family Coalition
DIGEST: This bill provides that the donor of semen provided to a licensed
physician or to a licensed sperm bank for use in assisted reproduction shall be
treated as if he were not the natural parent of a child thereby conceived, unless
otherwise agreed to in a writing prior to the conception of the child. This bill also
provides, if the semen is not provided to a licensed physician or a licensed sperm
bank for use in assisted reproduction by a woman other than the donor’s spouse,
the donor shall be treated in law as if he were not the natural parent of the child if
either: (1) the donor and the woman agreed in a writing prior to conception that the
donor would not be a parent; or (2) a court finds by clear and convincing evidence
that the child was conceived through assisted reproduction and that, prior to the
conception of the child, the woman and the donor had an oral agreement that the
donor would not be a parent.
ANALYSIS:
Existing law:
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1)
Defines, under the California Uniform Parentage Act (UPA), 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. 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.)
2)
Provides that a person is a presumed parent if, among other things:
(a) he or she was married to the child’s mother and the child was born within
300 days of the marriage; (b) he or she attempted to marry the child’s mother;
or (c) he or she holds the child out as his or her own. (Fam. Code Sec. 7611.)
3)
Requires that the paternity presumptions be applied gender
neutrally. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108.)
4)
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 parentage of the child by another person.
(Fam. Code Sec. 7612.)
5)
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.)
6)
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.)
7)
Provides that the spouse of a woman who, with the written consent
of her spouse, conceives through assisted reproduction under the supervision of
a licensed physician and with the consent of her spouse, 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).)
8)
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).)
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This bill:
1)
Provides that if a woman conceives through assisted reproduction
with semen, ova, or both, donated by someone other than her spouse, with the
consent of the other intended parent, that other intended parent is treated as if he
or she were the natural parent of the child, so long as the intended parent’s
consent is in writing, signed by the intended parent and the woman conceiving
prior to conception.
2)
Removes the requirement that, in order for a sperm donor not to be
considered the father of a child thereby conceived, a doctor must be used for the
assisted reproduction, and instead provides the following:
a)
If sperm is donated to someone other than the donor’s spouse and a
doctor is used in the assisted reproduction, the donor is treated as though he
were not the parent, unless otherwise agreed in a writing signed prior to
conception by the donor and the woman; and
b)
If sperm is donated to someone other than the donor’s spouse and a
doctor is not used in the assisted reproduction, the donor is treated as though
he were not the parent if either (1) the donor and the woman agreed in a
writing signed prior to conception that he would not be a parent; or (2) a
court finds by clear and convincing evidence that the child was conceived
through assisted reproduction and that, prior to the conception of the child,
the woman and the donor had an oral agreement that the donor would not be
a parent.
3)
Provides that the donor of ova for use in assisted reproduction by a
woman other than the donor’s spouse or non-marital partner is treated as if she
were not the natural parent of the child thereby conceived, unless the court finds
satisfactory evidence that the donor and the woman intended for the donor to be
a parent.
4)
Revises the optional California Statutory Forms for Assisted
Reproduction and creates a new optional form for “Intended Parents Using a
Known Sperm or Egg Donor to Conceive a Child” for those parties wishing to
establish that the sperm and/or egg donors are not intended to be the parents of
the child.
Background
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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.
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. In 2013, the Legislature enacted AB 1403 (Committee on Judiciary,
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Chapter 510, Statutes of 2013) to update the UPA by codifying case law which has
applied presumptions of parentage neutrally with regards to gender, and make the
UPA’s provisions gender neutral where appropriate. SB 115 (Hill, 2013), which
died in Assembly Rules Committee, would have clarified how presumptions of
parentage work in situations where an individual is both a presumed father and a
sperm donor. AB 2344 (Ammiano, Chapter 636, Statutes of 2014) created three
optional forms to allow intended parents to state their intention, in writing, to
parent a child conceived with the use of assisted reproduction. Those forms are
sufficient to satisfy the requirement of a “writing” under law.
This bill seeks to give further clarity to parentage and assisted reproduction in
California by creating uniform rules for intended parents, whether or not they are
married, and by treating sperm and egg donors who do not wish to parent the same
under the law. This bill also updates the optional, statutory assisted reproduction
forms to be consistent with the provisions of this bill.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
No
Local: No
SUPPORT: (Verified 7/10/15)
Equality California (co-source)
National Center for Lesbian Rights (co-source)
Our Family Coalition (co-source)
American Civil Liberties Union of California
American Society for Reproductive Medicine
Asian Pacific Islander Equality – Northern California
Asian Pacific Islander Wellness Center
California LGBT Health & Human Services Network
Los Angeles LGBT Center
San Francisco Family Support Network
Rainbow Community Center of Contra Costa County
Transgender Law Center
OPPOSITION: (Verified 7/10/15)
None received
ARGUMENTS IN SUPPORT: According to the author:
AB 960 updates California’s assisted reproduction laws to ensure that all
couples are equally protected by law to grow their families in California.
Today, many families conceive children through assisted reproduction and need
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equal protection under the law. Currently the lack of legal protections places
parents using assisted reproduction and their children at risk.
California law does not recognize unmarried couples using assisted
reproduction with a donor as parents, and limits this protection to married
couples, even though many unmarried couples conceive children in this way.
California law also only recognizes that sperm donors are not legal fathers
when a doctor or sperm bank is involved. However, many parents, including
many same-sex parents, transgender parents, and intended single parents, use at
home insemination to conceive. Many families simply cannot afford to
conceive using a sperm bank or doctor, which can costs hundreds or thousands
of dollars per month. These families are left completely unprotected, and their
sperm donors are treated as biological fathers under the law.
AB 960 also provides clear direction for how egg donors should be treated
under California law. California statutes currently do not explicitly address egg
donors; instead provisions in the Family Code addressing fathers are applied to
mothers.
California needs to update its own laws to recognize that families are formed in
many ways, and all are equally deserving of protection.
ASSEMBLY FLOOR: 71-0, 5/18/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper,
Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove,
Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey,
Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin,
Nazarian, Obernolte, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Travis Allen, Bigelow, Beth Gaines, Jones, Kim,
Mathis, Melendez, Olsen, Patterson
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
7/10/15 14:47:36
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