Existing law provides that the spouse of a woman who conceives through assisted reproduction with semen donated by a man not her husband is treated as if he or she were the natural parent of the child. Existing law further provides that the donor of semen provided to a licensed physician or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donors wife is treated as if he were not the natural father of the child.

This bill would provide that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction is treated as if he were not the natural parent of the child unless otherwise agreed to in a writing signed by the donor and woman prior to the conception of the child. The bill would also provide, if the semen is not provided to a licensed physician and surgeon or a licensed sperm bank, that the donor of semen for use in assisted reproduction by a woman other than the donors spouse is treated in law as if he were not the natural parent of the child if either the donor and the woman agreed in a writing prior to conception that the donor would not be a parent or 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. The bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent.

This bill would also create a new form for assisted reproduction that would provide clarity regarding a persons intent to be a legal parent if he or she is using assisted reproduction that results in a child at the time of conception from a known sperm or ova donor. The bill would also state that the use of this form, if signed prior to the conception of a child, is presumed to satisfy the writing requirement described above.

Existing law provides that the spouse of a woman who conceives through assisted reproduction with semen donated by a man not her husband is treated as if he or she were the natural parent of the child. Existing law further provides that the donor of semen provided to a licensed physician or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donors wife is treated as if he were not the natural father of the child.

This bill would provide that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction is treated as if he were not the natural parent of the child unless otherwise agreed to in a writing signed by the donor and woman prior to the conception of the child. The bill would also provide, if the semen is not provided to a licensed physician and surgeon or a licensed sperm bank, that the donor of semen for use in assisted reproduction by a woman other than the donors spouse is treated in law as if he were not the natural parent of the child if either the donor and the woman agreed in a writing prior to conception that the donor would not be a parent or 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. The bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent.

This bill would also create a new form for assisted reproduction that would provide clarity regarding a persons intent to be a legal parent if he or she is using assisted reproduction that results in a child at the time of conception from a known sperm or ova donor. The bill would also state that the use of this form, if signed prior to the conception of a child, is presumed to satisfy the writing requirement described above.

Existing law provides that the spouse of a woman who conceives through assisted reproduction with semen donated by a man not her husband is treated as if he or she were the natural parent of the child. Existing law further provides that the donor of semen provided to a licensed physician or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donors wife is treated as if he were not the natural father of the child.

This bill would provide that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction is treated as if he were not the natural parent of the child unless otherwise agreed to in a writing signed by the donor and woman prior to the conception of the child. The bill would also provide, if the semen is not provided to a licensed physician and surgeon or a licensed sperm bank, that the donor of semen for use in assisted reproduction by a woman other than the donors spouse is treated in law as if he were not the natural parent of the child if either the donor and the woman agreed in a writing prior to conception that the donor would not be a parent or a court finds satisfactory evidence that, prior to conception, the donor and the woman intended to conceive through artificial reproduction and both the woman and the donor intended that the donor would not be a parent. 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. The bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent.

This bill would also create a new form for assisted reproduction that would provide clarity regarding a persons intent to be a legal parent if he or she is using assisted reproduction that results in a child at the time of conception from a known sperm or ova donor. The bill would also state that the use of this form, if signed prior to the conception of a child, is presumed to satisfy the writing requirement described above.

Existing law provides that the spouse of a woman who conceives through assisted reproduction with semen donated by a man not her husband is treated as if he or she were the natural parent of the child. Existing law further provides that the donor of semen provided to a licensed physician or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donors wife is treated as if he were not the natural father of the child.

This bill would provide that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction is treated as if he were not the natural parent of the child if the semen was provided to a licensed physician and surgeon or a licensed sperm bank, unless otherwise agreed to in a writing signed by the donor and woman prior to the conception of the child. The bill would also provide, if the semen is not provided to a licensed physician and surgeon or a licensed sperm bank, that the donor of semen for use in assisted reproduction by a woman other than the donors spouse is treated in law as if he were not the natural parent of the child if either the donor and the woman agreed in a writing prior to conception that the donor would not be a parent, parent or a court finds satisfactory evidence that, prior to conception, the donor and the woman intended to conceive through artificial reproduction and both the woman and the donor intended that the donor would not be a parent. The bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent.

This bill would also create a new form for assisted reproduction that would provide clarity regarding a persons intent to be a legal parent if he or she is using assisted reproduction that results in a child at the time of conception from a known sperm or ova donor. The bill would also state that the use of this form, if signed prior to the conception of a child, is presumed to satisfy the writing requirement described above.

Existing law authorizes a court to issue an order to restrain a person to prevent acts of domestic violence, abuse, sexual abuse, and to provide for a separation of persons involved in domestic violence. Under existing law, prior to a hearing on the issuance or denial of an order for this purpose, the court is required to ensure that a search of specified records and databases is or has been conducted to determine if the subject of the proposed order has a prior criminal conviction, as specified. Under existing law, prior to deciding whether to issue an order or when determining appropriate temporary custody and visitation orders, a court is required to consider specified information obtained pursuant to that search.

This bill would make technical, nonsubstantive changes to these provisions.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 960

Author:(Chiu)

As Amended Ver:June 19, 2015

Majority vote

Original Committee Reference: JUD.

SUMMARY: Makes more uniform rules regarding recognition of parentage for children conceived using donated sperm or eggs for intended parents and for donors. Specifically, this bill:

1. Provides that if a woman conceives through assisted reproduction with semen, ova (egg) 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. Requires that the intended parent's consent be in writing, signed by the intended parent and the woman conceiving.

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. Provides instead that if sperm is donated to someone other than the donor's spouse:

   1. If 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.

   2. If a doctor is not used in the assisted reproduction, the donor is treated as though he were not the parent if either: i) the donor and the woman agreed in a writing signed prior to conception that he would not be a parent; or ii) 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 egg for use in assisted reproduction by a woman other than the donor's spouse or nonmarital 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 based on the changes set forth above.

5. 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.

The Senate amendments require that sperm donor, who does not wish to be a parent, who does not use a doctor and who does not sign a written agreement with the woman who receives the sperm prior to conception, will be considered a parent unless a court finds, by clear and convincing evidence, 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.

EXISTING LAW:

1. Establishes the California Uniform Parentage Act. 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.

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.

3. Provides that the child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided.

4. 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.

5. 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.

FISCAL EFFECT: None

COMMENTS: 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), Chapter 564, Statutes of 2013, 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. This bill seeks to clarify and simplify those rules to ensure that intended parents, as well as sperm and egg donors who do not intend to parent, are recognized as such by the law.

Current Parentage Law on Sperm Donors and its Difficulties for Families. Today California law treats sperm donors differently depending on whether the intended parents are married and on whether the assisted reproduction occurs with the help of a doctor/sperm bank, or not. Absent a signed agreement prior to conception, existing California law deems that an individual who donates semen to a physician or licensed sperm bank for use by a woman who is not the donor's wife as if he were not the natural father of the child thereby conceived. If the donor intends to parent the child, he must sign an agreement stating so prior to the child's conception. A donor who does not use a physician or licensed sperm bank is treated as the child's parent, regardless of his stated intention. As a result, parties are required to spend hundreds or thousands of dollars for doctor or sperm bank assistance in order to ensure that the intended parents' and the donors' intents are recognized.

This is not a problem for egg donation, where medical intervention is required to complete the donation. However for sperm donation, the reality is that many woman or couples trying to conceive a child with the help of a known sperm donor avoid any medical expense and inseminate at home without use of a doctor or a sperm bank. As long as no one challenges this, there are likely no complications. But if something happens, significant legal problems can arise for both the donor and the intended parents. For example, if the mother ends up on public assistance, the donor, who will likely be legally recognized as the child's parent, may be responsible for child support. Likewise, if the donor changes his mind and wants to have more involvement in the child's life, he may be able to get custody of the child, even against the wishes of the intended parents.

This Bill Seeks to Have Similar Rules Apply to Married and Unmarried Couples and to Those Who Use Medical Assistance and Those Who Do Not. This bill seeks to streamline and simplify rules regarding parentage in assisted reproductions cases involving both egg and sperm donors and ensure that intended parents are legal parents and donors are donors by:

1. Allowing an unmarried couple using a sperm donor to conceive a child to ensure that the intended parent who is not giving birth is the child's legal parent from the moment of the child's birth. This will help immediately effectuate the intentions of unmarried couples and provide them and their children immediate recognition.

2. Making provisions gender neutral so that a spouse in a same-sex marriage will be considered the parent of a child conceived through egg and/or sperm donation to her spouse, if that spouse consents. While a pre-conception writing is required to demonstrate that consent, this bill no longer requires that the doctor participate in that process (see 5) below).

3. Clarifying that an egg donor, who is not the spouse or nonmarital partner of the woman conceiving with the donation, is not the parent unless the courts finds sufficient evidence that she intended to be the parent. This provision codifies the California Supreme Court's holding in K.M. v. E.G. (2005) 37 Cal.4th 130, in which the court recognized that a woman who provided her ova to her partner with the intention of conceiving children together was the parent of the twins so conceived. In addition, this is generally consistent with the treatment of sperm donors.

4. Continuing existing law that a sperm donor donating to a woman other than his spouse, using a doctor or licensed sperm bank, is considered a parent unless he and the woman sign an agreement otherwise prior to conception. Thus, the sperm donor donating through a doctor or a sperm bank is not the father, unless he agrees otherwise in writing.

5. Creating basically the opposite standard for sperm donors who do not use a doctor or sperm bank – they may be parents unless they agree otherwise prior to conception. Given the complexities of parentage laws and parentage presumptions, this bill rightly does not provide that these men are definitely parents, which could exclude other legal or presumed parents. Instead, this bill states that if a doctor or sperm bank is not used, these donors are only treated as donors – and not parents – if either: a) the donor and the woman agreed in a writing signed prior to conception that he would not be a parent; or b) 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. Thus, these donors are most likely parents, unless they agree otherwise – whether in writing or orally – prior to conception.

This is this bill's most significant change to the law. Today donors who do not use a doctor are very likely to be considered parents, regardless of the parties' intent. This change is designed to effectuate two important purposes. First, it will give clear instructions on how to legally recognize parties' intentions with respect to parentage. Parties who want to be parents can follow the rules to be recognized as such, and donors who want to be donors can do the same. Second, it will allow prospective parents and donors, who want to remain donors, to follow clear rules and conceive at home using donated sperm, without the expense of a doctor or a sperm bank, which today's law requires.

Legislation Last Year Created Optional Statutory Forms to Assist Intended Parents and Donors Using Assisted Reproduction and This Bill Clarifies and Expands Those Forms. Last year, AB 2344 (Ammiano), Chapter 636, Statutes of 2014, created optional forms to allow intended parents to state, in writing, their intention to parent a child being conceived through use of assisted reproduction and also to let donors state their intention not to parent – basically to effectuate the requirement for evidence of the parties' intent required by the sperm and egg donation statute, discussed above. These forms are strictly optional – intended parents may evidence their intent using any other writing or other evidence, as provided. Moreover, because parentage laws can be very complicated, the forms do not – nor can they – disestablish the parentage rights of any other person or affect other presumptions of parentage. They just evidence the intent of the parties executing the forms.

The forms created last year address the following situations:

1. Married spouses who are using assisted reproduction to conceive and one partner will be giving birth.

2. Unmarried, intended parents using sperm donated from one of the intended parents.

3. Intended parents conceiving a child with eggs donated from one of them, while the other will give birth.

This bill updates the existing forms consistent with the changes that this bill makes to egg and sperm donors. In addition, this bill creates a new form, entitled "Intended Parent(s) Using a Known Sperm and/or Egg Donor(s) to Conceive a Child," designed to help intended parents who are using a known sperm and/or egg donor and do not wish for the donor to be a parent. This form is designed to help those families who use a known donor who does not intend to be a parent, but choose to perform the assisted reproduction without aid of a doctor or a sperm bank.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0001221

 THIRD READING  

Bill No: AB 960

Author: Chiu (D), et al.

Amended: 6/19/15 in Senate

Vote: 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:

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).)

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:

1. 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

2. 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

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, 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 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

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 960 (Author:Chiu)

Version: June 19, 2015

Hearing Date: July 7, 2015

Fiscal: No

Urgency: No

Consultant: NR

SUBJECT

Parentage: assisted reproduction

DESCRIPTION

This bill would provide 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 would also provide, 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.

This bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor, and the woman, intended for the donor to be a parent. This bill would also create a new form for assisted reproduction, consistent with the above provisions.

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.

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. In 2013, 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 parentage 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. AB 2344 (Ammiano, Ch. 636, Stats. 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 would also update the optional, statutory assisted reproduction forms to be consistent with the provisions of this bill.

CHANGES TO EXISTING LAW

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 is rebutted by a judgment establishing parentage 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 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).)

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 provide 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.

This bill would remove 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 would instead provide the following:

• 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

• 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.

This bill would provide 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.

This bill would revise the optional California Statutory Forms for Assisted Reproduction and create 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.

COMMENT

1. Stated need for the bill

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 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.

2. Would apply parentage uniformly based on intent prior to conception and not marital status

The Uniform Parentage Act outlines how individuals establish a parent and child relationship, including establishing that relationship with children conceived by means of assisted reproduction. Traditionally, the law has offered more legal protection to families with married parents than families with unmarried parents. Equality California, sponsor of this bill, explains:

California law currently does not protect unmarried couples using assisted reproduction, and only allows married couples using assisted reproduction to both be automatically recognized as parents from the moment of birth. This means, for example, that when an unmarried different-sex couple with infertility challenges conceives through donor insemination, the father is not recognized as a parent from the moment of birth, and may have no protections if the mother dies in childbirth. An unmarried female same sex couple has the same problem. If they conceive using donor insemination, the non-biological mother will not be on the birth certificate and will not be able to put their child on her insurance when the child is born.

This bill would instead recognize the intent of the couple wishing to conceive and the donor by providing that the 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. Likewise, the donor is treated as though he were not the parent, unless otherwise agreed to in a writing signed prior to conception by the donor and the woman. In support, API Equality – Northern California, writes, “This bill [would] modernize California’s assisted reproduction laws to ensure that all parents are equally protected by law to grow their families in California. This bill would allow unmarried people using assisted reproduction to be fully recognized as parents on the same terms as unmarried parents.”

Rainbow Community Center of Contra Costa County, also in support, writes “Given the economic realities, legal hurdles, and societal barriers facing LGBTQ2S people in building families, we advocate for any systemic support that can ease the journey to parenthood that so many people – regardless of sexuality, gender identity, and relationship status – dream of. … [This bill] helps build additional support and protection for all families.”

3. Would eliminate certain financial barriers to assisted reproduction

Regardless of intent, donors who do not use a doctor are very likely to be considered parents because the law generally does not exempt donors unless they use a physician or licensed sperm bank. Equality California, sponsor, writes:

California law does not currently protect families who use at-home insemination with a known donor. Many families choose to inseminate at home without medical supervision because medical supervision can cost thousands of dollars. For example, a transgender father and his female partner decide to conceive a child using his brother as their donor so that both parents can be biologically related to their child. They conceive at home because costs of using a clinic are so high. Under current law, the donor may be a legal parent and can be required to pay child support by the state. Similarly, lesbian couples conceiving through donor insemination at home with a known donor are not protected. If the donor decides to seek custody, he may be recognized as a parent.

Accordingly, this bill would remove the requirement that families seeking to conceive must use a licensed physician or sperm bank in order to ensure that a donor will not be considered a parent. Under this bill, the donors would, by default, not be considered natural parents. If the parties intend for a donor to be considered a parent, that intent must be agreed to in writing prior to conception. Our Family Coalition, sponsor, writes “Ultimately, [we believe] this bill is about protecting children. Many of our families continue to be vulnerable or unable to conceive until they can afford to go to a medical clinic, which is heartbreaking and unjust. This bill will create legal stability and protection for children of low income families who can’t afford the high costs of a fertility clinic.”

In support, the American Society for Reproductive Medicine writes “family formation is changing in light of new technological advances, creating greater options, and the law needs to be refined to reflect these changes. [This bill] will update California law to reflect how families are created, with and without the use of assisted reproductive technology services provided by physicians.”

4. Would clarify how egg donors are treated under law

This bill would clarify that an egg donor, who is not the spouse or non-marital partner of the woman conceiving with the donated ova, is not the parent unless the court finds sufficient evidence that the donor intended to be a parent. This is consistent with both treatment of sperm donors and with K.M. v. E.G. (2005) 37 Cal.4th 130, where the California Supreme Court recognized that a woman who provided her ova to her partner with the intention of conceiving children together was the parent of the twins thereby conceived. The National Center for Lesbian Rights, sponsor, writes that “California statutes currently do not explicitly address egg donors; instead provisions in the Family Code addressing fathers are applied to mothers. AB 960 clarifies how egg donors are protected under California law to ensure that families using egg donors can be aware of the protections.”

5. Federal screening and testing requirements for donated tissue

Unlike other areas of medicine, which are regulated predominately at the state level, assisted reproductive technologies are also regulated at the federal level. In addition, the state regulates physicians and tissue banks that deal with sperm, and professional associations have extensive professional guidelines for the use of sperm.

The Society for Assisted Reproductive Technology (SART) and the American Society for Reproductive Medicine (ASRM), jointly offered guidelines for sperm donation in 2008 that are widely followed. Among the recommended laboratory tests were those for HIV, HBV, HCV, syphilis, and HTLV. The guidelines provide that anonymous and/or known donors are tested and re-tested, which is also required under regulations issued by the Food and Drug Administration. Thus, if an initial donation produces negative results, the semen samples should be collected, cryopreserved, and quarantined for a minimum of 180 days, after which the semen should be retested, and again found negative, before the samples may be released.

Sexually intimate couples seeking fertility treatment, however, are only advised to undergo testing to minimize the risk of viral transmission to partners and resulting children. Under these guidelines, sperm donated from a sexually intimate partner is not required to be quarantined or undergo repeat testing. In 2012, California defined “sexually intimate partner” for this purpose to include a known or designated donor to whose sperm the recipient has previously been exposed to in a nonmedical setting in an attempt to conceive, thereby allowing the recipient to waive repeat testing of that donor. (AB 2356 (Skinner, Ch. 699, Stats. 2012).)

National Center for Lesbian Rights, sponsor, writes “AB 960 should not have any effect on the testing requirements, as it does not impose, remove, or modify any such requirements for the provision of assisted reproduction services to patients, but rather only changes how California recognizes the legal parentage of intended parents and sperm donors, in particular those who conceived without providing the semen to a physician and intended parents who are not married to each other.”

Support: 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: None Known

HISTORY

Source: Equality California; National Center for Lesbian Rights; Our Family Coalition

Related Pending Legislation: None Known

Prior Legislation:

AB 2344 (Ammiano, Chapter 636, Statutes of 2014) see Background.

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.

Prior Vote:

Assembly Floor (Ayes 71, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 960 (Author:Chiu)

Version: June 19, 2015

Hearing Date: June 30, 2015

Fiscal: No

Urgency: No

Consultant: NR

SUBJECT

Parentage: assisted reproduction

DESCRIPTION

This bill would provide 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 would also provide, 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 clear and convincing evidence that, prior to conception, the donor and the woman intended to conceive through artificial reproduction and both the woman and the donor intended that the donor would not be a parent.

This bill would provide that the donor of ova for use in assisted reproduction is treated as if she were not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the donor, and the woman, intended for the donor to be a parent. This bill would also create a new form for assisted reproduction, consistent with the above provisions.

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.

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. In 2013, 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 parentage 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. AB 2344 (Ammiano, Ch. 636, Stats. 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 would also update the optional, statutory assisted reproduction forms to be consistent with the provisions of this bill.

CHANGES TO EXISTING LAW

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 is rebutted by a judgment establishing parentage 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 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).)

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 provide 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.

This bill would remove 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 would instead provide the following:

• 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

• 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 clear and convincing evidence, prior to conception, that the donor and the women intended to conceive through assisted reproduction and that both the donor and the woman did not intend for the donor to be a parent.

This bill would provide 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.

This bill would revise the optional California Statutory Forms for Assisted Reproduction and create 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.

COMMENT

1. Stated need for the bill

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 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.

2. Would apply parentage uniformly based on intent prior to conception and not marital status

The Uniform Parentage Act outlines how individuals establish a parent and child relationship, including establishing that relationship with children conceived by means of assisted reproduction. Traditionally, the law has offered more legal protection to families with married parents than families with unmarried parents. Equality California, sponsor of this bill, explains:

California law currently does not protect unmarried couples using assisted reproduction, and only allows married couples using assisted reproduction to both be automatically recognized as parents from the moment of birth. This means, for example, that when an unmarried different-sex couple with infertility challenges conceives through donor insemination, the father is not recognized as a parent from the moment of birth, and may have no protections if the mother dies in childbirth. An unmarried female same sex couple has the same problem. If they conceive using donor insemination, the non-biological mother will not be on the birth certificate and will not be able to put their child on her insurance when the child is born.

This bill would instead recognize the intent of the couple wishing to conceive and the donor by providing that the 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. Likewise, the donor is treated as though he were not the parent, unless otherwise agreed to in a writing signed prior to conception by the donor and the woman. In support, API Equality – Northern California, writes, “This bill [would] modernize California’s assisted reproduction laws to ensure that all parents are equally protected by law to grow their families in California. This bill would allow unmarried people using assisted reproduction to be fully recognized as parents on the same terms as unmarried parents.”

Rainbow Community Center of Contra Costa County, also in support, writes “Given the economic realities, legal hurdles, and societal barriers facing LGBTQ2S people in building families, we advocate for any systemic support that can ease the journey to parenthood that so many people – regardless of sexuality, gender identity, and relationship status – dream of. … [This bill] helps build additional support and protection for all families.”

3. Would eliminate certain financial barriers to assisted reproduction

Regardless of intent, donors who do not use a doctor are very likely to be considered parents because the law generally does not exempt donors unless they use a physician or licensed sperm bank. Equality California, sponsor, writes:

California law does not currently protect families who use at-home insemination with a known donor. Many families choose to inseminate at home without medical supervision because medical supervision can cost thousands of dollars. For example, a transgender father and his female partner decide to conceive a child using his brother as their donor so that both parents can be biologically related to their child. They conceive at home because costs of using a clinic are so high. Under current law, the donor may be a legal parent and can be required to pay child support by the state. Similarly, lesbian couples conceiving through donor insemination at home with a known donor are not protected. If the donor decides to seek custody, he may be recognized as a parent.

Accordingly, this bill would remove the requirement that families seeking to conceive must use a licensed physician or sperm bank in order to ensure that a donor will not be considered a parent. Under this bill, the donors would, by default, not be considered natural parents. If the parties intend for a donor to be considered a parent, that intent must be agreed to in writing prior to conception. Our Family Coalition, sponsor, writes “Ultimately, [we believe] this bill is about protecting children. Many of our families continue to be vulnerable or unable to conceive until they can afford to go to a medical clinic, which is heartbreaking and unjust. This bill will create legal stability and protection for children of low income families who can’t afford the high costs of a fertility clinic.”

In support, the American Society for Reproductive Medicine writes “family formation is changing in light of new technological advances, creating greater options, and the law needs to be refined to reflect these changes. [This bill] will update California law to reflect how families are created, with and without the use of assisted reproductive technology services provided by physicians.”

4. Would clarify how egg donors are treated under law

This bill would clarify that an egg donor, who is not the spouse or non-marital partner of the woman conceiving with the donated ova, is not the parent unless the court finds sufficient evidence that the donor intended to be a parent. This is consistent with both treatment of sperm donors and with K.M. v. E.G. (2005) 37 Cal.4th 130, where the California Supreme Court recognized that a woman who provided her ova to her partner with the intention of conceiving children together was the parent of the twins thereby conceived. The National Center for Lesbian Rights, sponsor, writes that “California statutes currently do not explicitly address egg donors; instead provisions in the Family Code addressing fathers are applied to mothers. AB 960 clarifies how egg donors are protected under California law to ensure that families using egg donors can be aware of the protections.”

5. Federal screening and testing requirements for donated tissue

Unlike other areas of medicine, which are regulated predominately at the state level, assisted reproductive technologies are also regulated at the federal level. In addition, the state regulates physicians and tissue banks that deal with sperm, and professional associations have extensive professional guidelines for the use of sperm.

The Society for Assisted Reproductive Technology (SART) and the American Society for Reproductive Medicine (ASRM), jointly offered guidelines for sperm donation in 2008 that are widely followed. Among the recommended laboratory tests were those for HIV, HBV, HCV, syphilis, and HTLV. The guidelines provide that anonymous and/or known donors are tested and re-tested, which is also required under regulations issued by the Food and Drug Administration. Thus, if an initial donation produces negative results, the semen samples should be collected, cryopreserved, and quarantined for a minimum of 180 days, after which the semen should be retested, and again found negative, before the samples may be released.

Sexually intimate couples seeking fertility treatment, however, are only advised to undergo testing to minimize the risk of viral transmission to partners and resulting children. Under these guidelines, sperm donated from a sexually intimate partner is not required to be quarantined or undergo repeat testing. In 2012, California defined “sexually intimate partner” for this purpose to include a known or designated donor to whose sperm the recipient has previously been exposed to in a nonmedical setting in an attempt to conceive, thereby allowing the recipient to waive repeat testing of that donor. (AB 2356 (Skinner, Ch. 699, Stats. 2012).)

National Center for Lesbian Rights, sponsor, writes “AB 960 should not have any effect on the testing requirements, as it does not impose, remove, or modify any such requirements for the provision of assisted reproduction services to patients, but rather only changes how California recognizes the legal parentage of intended parents and sperm donors, in particular those who conceived without providing the semen to a physician and intended parents who are not married to each other.”

Support: 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: None Known

HISTORY

Source: Equality California; National Center for Lesbian Rights; Our Family Coalition

Related Pending Legislation: None Known

Prior Legislation:

AB 2344 (Ammiano, Chapter 636, Statutes of 2014) see Background.

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.

Prior Vote:

Assembly Floor (Ayes 71, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 960

Author:(Chiu)

As Amended Ver:April 28, 2015

Majority vote

SUMMARY: Makes more uniform rules regarding recognition of parentage for children conceived using donated sperm or eggs for intended parents and for donors. Specifically, this bill:

1. Provides that if a woman conceives through assisted reproduction with semen, ova (egg) 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. Requires that the intended parent's consent be in writing, signed by the intended parent and the woman conceiving.

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. Provides instead that if sperm is donated to someone other than the donor's spouse:

   1. If 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.

   2. If a doctor is not used in the assisted reproduction, the donor is treated as though he were not the parent if either: i) the donor and the woman agreed in a writing signed prior to conception that he would not be a parent; or ii) a court finds satisfactory evidence, prior to conception, that the donor and the women intended to conceive through assisted reproduction and that both the donor and the woman did not intend for the donor to be a parent.

3. Provides that the donor of egg for use in assisted reproduction by a woman other than the donor's spouse or nonmarital 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 based on the changes set forth in 1) and 2) above.

5. 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.

EXISTING LAW:

1. Establishes the California Uniform Parentage Act. 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.

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.

3. Provides that the child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided.

4. 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.

5. 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.

FISCAL EFFECT: None

COMMENTS: 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), Chapter 564, Statutes of 2013, 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. This bill seeks to clarify and simplify those rules to ensure that intended parents, as well as sperm and egg donors who do not intend to parent, are recognized as such by the law.

Current Parentage Law on Sperm Donors and its Difficulties for Families. Today California law treats sperm donors differently depending on whether the intended parents are married and on whether the assisted reproduction occurs with the help of a doctor/sperm bank, or not. Absent a signed agreement prior to conception, existing California law deems that an individual who donates semen to a physician or licensed sperm bank for use by a woman who is not the donor’s wife as if he were not the natural father of the child thereby conceived. If the donor intends to parent the child, he must sign an agreement stating so prior to the child's conception. A donor who does not use a physician or licensed sperm bank is treated as the child's parent, regardless of his stated intention. As a result, parties are required to spend hundreds or thousands of dollars for doctor or sperm bank assistance in order to ensure that the intended parents' and the donors' intents are recognized.

This is not a problem for egg donation, where medical intervention is required to complete the donation. However for sperm donation, the reality is that many woman or couples trying to conceive a child with the help of a known sperm donor avoid any medical expense and inseminate at home without use of a doctor or a sperm bank. As long as no one challenges this, there are likely no complications. But if something happens, significant legal problems can arise for both the donor and the intended parents. For example, if the mother ends up on public assistance, the donor, who will likely be legally recognized as the child's parent, may be responsible for child support. Likewise, if the donor changes his mind and wants to have more involvement in the child's life, he may be able to get custody of the child, even against the wishes of the intended parents.

This Bill Seeks to Have Similar Rules Apply to Married and Unmarried Couples and to Those Who Use Medical Assistance and Those Who Do Not. This bill seeks to streamline and simplify rules regarding parentage in assisted reproductions cases involving both egg and sperm donors and ensure that intended parents are legal parents and donors are donors by:

1. Allowing an unmarried couple using a sperm donor to conceive a child to ensure that the intended parent who is not giving birth is the child's legal parent from the moment of the child's birth. This will help immediately effectuate the intentions of unmarried couples and provide them and their children immediate recognition.

2. Making provisions gender neutral so that a spouse in a same-sex marriage will be considered the parent of a child conceived through egg and/or sperm donation to her spouse, if that spouse consents. While a pre-conception writing is required to demonstrate that consent, this bill no longer requires that the doctor participate in that process (see 5), below).

3. Clarifying that an egg donor, who is not the spouse or nonmarital partner of the woman conceiving with the donation, is not the parent unless the courts finds sufficient evidence that she intended to be the parent. This provision codifies the California Supreme Court's holding in K.M. v. E.G. (2005) 37 Cal.4th 130, in which the court recognized that a woman who provided her ova to her partner with the intention of conceiving children together was the parent of the twins so conceived. In addition, this is generally consistent with the treatment of sperm donors.

4. Continuing existing law that a sperm donor donating to a woman other than his spouse, using a doctor or licensed sperm bank, is considered a parent unless he and the woman sign an agreement otherwise prior to conception. Thus, the sperm donor donating through a doctor or a sperm bank is not the father, unless he agrees otherwise in writing.

5. Creating basically the opposite standard for sperm donors who do not use a doctor or sperm bank — they may be parents unless they agree otherwise prior to conception. Given the complexities of parentage laws and parentage presumptions, this bill rightly does not provide that these men are definitely parents, which could exclude other legal or presumed parents. Instead, the bill states that if a doctor or sperm bank is not used, these donors are only treated as donors — and not parents — if either: a) the donor and the woman agreed in a writing signed prior to conception that he would not be a parent; or b) a court finds satisfactory evidence, prior to conception, that the donor and the women intended to conceive through assisted reproduction and that both the donor and the woman did not intend for the donor to be a parent. Thus, these donors are most likely parents, unless they agree otherwise — whether in writing or though other evidence — prior to conception.

This is this bill's most significant change to the law. Today donors who do not use a doctor are very likely to be considered parents, regardless of the parties' intent. This change is designed to effectuate two important purposes. First, it will give clear instructions on how to legally recognize parties' intentions with respect to parentage. Parties who want to be parents can follow the rules to be recognized as such, and donors who want to be donors can do the same. Second, it will allow prospective parents and donors, who want to remain donors, to follow clear rules and conceive at home using donated sperm, without the expense of a doctor or a sperm bank, which today's law requires.

Legislation Last Year Created Optional Statutory Forms to Assist Intended Parents and Donors Using Assisted Reproduction and This Bill Clarifies and Expands Those Forms. Last year, AB 2344 (Ammiano), Chapter 636, Statutes of 2014, created optional forms to allow intended parents to state, in writing, their intention to parent a child being conceived through use of assisted reproduction and also to let donors state their intention not to parent — basically to effectuate the requirement for evidence of the parties' intent required by the sperm and egg donation statute, discussed above. These forms are strictly optional — intended parents may evidence their intent using any other writing or other evidence, as provided. Moreover, because parentage laws can be very complicated, the forms do not — nor can they — disestablish the parentage rights of any other person or affect other presumptions of parentage. They just evidence the intent of the parties executing the forms.

The forms created last year address the following situations:

1. Married spouses who are using assisted reproduction to conceive and one partner will be giving birth.

2. Unmarried, intended parents using sperm donated from one of the intended parents.

3. Intended parents conceiving a child with eggs donated from one of them, while the other will give birth.

This bill updates the existing forms consistent with the changes that this bill makes to egg and sperm donors. In addition, this bill creates a new form, entitled "Intended Parent(s) Using a Known Sperm and/or Egg Donor(s) to Conceive a Child," designed to help intended parents who are using a known sperm and/or egg donor and do not wish for the donor to be a parent. This form is designed to help those families who use a known donor who does not intend to be a parent, but choose to perform the assisted reproduction without aid of a doctor or a sperm bank.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000262

Date of Hearing: May 5, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 960

Author:(Chiu) – As Amended Ver:April 28, 2015

SUBJECT: Parentage: assisted reproduction

KEY ISSUE: SHOULD A SPERM DONOR, WHO DOES NOT INTEND TO PARENT the CHILD CONCEIVED as the result of such donation, NOT BE CONSIDERED A PARENT, EVEN IF THE INSEMINATION OCCURS WITHOUT THE ASSISTANCE OF A DOCTOR OR SPERM BANK?

SYNOPSIS

For individuals or couples using assisted reproduction to conceive children, establishing parentage often requires a review of the parties' intent at the time of conception. This bill, jointly sponsor by Equality California, the National Center for Lesbian Rights and Our Family Coalition, seeks to make the rules regarding parentage more uniform for those families using donated sperm or egg, and ensure that intended parents, and sperm and egg donors who do not intend to parent, are recognized as such by the law. In particular, this bill treats intended parents who use donated sperm the same, regardless of whether they are married or not. It also treats donors who do not intend to parent the same, regardless of whether the insemination occurs with help of a doctor/sperm bank, or not. Finally the bill updates optional, statutory forms that help clarify the various parties' intentions, consistent with the other changes that the bill makes.

The author writes that these updates to the law for intended parents and donors are necessary to "recognize that families are formed in many ways, and all are equally deserving of protection." This bill is supported by the American Civil Liberties Union and LGBT organizations. It has no reported opposition.

SUMMARY: Makes more uniform rules regarding recognition of parentage for children conceived using donated sperm or eggs for intended parents and for donors. Specifically, 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. Requires that the intended parent's consent be in writing, signed by the intended parent and the woman conceiving.

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. Provides instead that if sperm is donated to someone other than the donor's spouse:

   1. If 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.

   2. If a doctor is not used in the assisted reproduction, the donor is treated as though he were not the parent if either (i) 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 satisfactory evidence, prior to conception, that the donor and the women intended to conceive through assisted reproduction and that both the donor and the woman did not intend for the donor to be a parent.

3. Provides that the donor of ova (egg) for use in assisted reproduction by a woman other than the donor's spouse or nonmarital 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 based on the changes set forth in #s 1) and 2) above.

5. 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.

EXISTING LAW:

1. Establishes the California Uniform Parentage Act. 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 child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided. (Sections 7540-41.)

4. 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).)

5. 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).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: 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), Chap. 564, Stats. 2013, 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. This bill seeks to clarify and simplify those rules to ensure that intended parents, as well as sperm and egg donors who do not intend to parent, are recognized as such by the law.

The author explains the bill as follows:

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 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.

Intended Parents of a Child Born Using Assisted Reproduction Technology are the Child’s Parents. Two seminal California cases have established that intended parents using 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 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 intended 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 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 contract 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 the 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, writing 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 codified this for surrogacy arrangements in AB 1217 (Fuentes), Chap. 466, Stats. 2011.

Current Parentage Law on Sperm Donors and its Difficulties for Families. Today California law treats sperm donors differently depending on whether the intended parents are married and on whether the assisted reproduction occurs with the help of a doctor/sperm bank, or not. Absent a signed agreement prior to conception, existing California law deems that an individual who donates semen to a physician or licensed sperm bank for use by a woman who is not the donor’s wife as if he were not the natural father of the child thereby conceived. If the donor intends to parent the child, he must sign an agreement stating so prior to the child's conception. A donor who does not use a physician or licensed sperm bank is treated as the child's parent, regardless of his stated intention. As a result, parties are required to spend hundreds or thousands of dollars for doctor or sperm bank assistance in order to ensure that the intended parents' and the donors' intents are recognized.

This is not a problem for egg donation, where medical intervention is required to complete the donation. However for sperm donation, the reality is that many woman or couples trying to conceive a child with the help of a known sperm donor avoid any medical expense and inseminate at home without use of a doctor or a sperm bank. As long as no one challenges this, there are likely no complications. But if something happens, significant legal problems can arise for both the donor and the intended parents. For example, if the mother ends up on public assistance, the donor, who will likely be legally recognized as the child's parent, may be responsible for child support. Likewise, if the donor changes his mind and wants to have more involvement in the child's life, he may be able to get custody of the child, even against the wishes of the intended parents.

This Bill Seeks to Have Similar Rules Apply to Married and Unmarried Couples and to Those Who Use Medical Assistance and Those Who Do Not. This bill seeks to streamline and simplify rules regarding parentage in assisted reproductions cases involving both egg and sperm donors and ensure that intended parents are legal parents and donors are donors by:

1. Allowing an unmarried couple using a sperm donor to conceive a child to ensure that the intended parent who is not giving birth is the child's legal parent from the moment of the child's birth. This will help immediately effectuate the intentions of unmarried couples and provide them and their children immediate recognition.

2. Making provisions gender neutral so that a spouse in a same-sex marriage will be considered the parent of a child conceived through egg and/or sperm donation to her spouse, if that spouse consents. While a pre-conception writing is required to demonstrate that consent, this bill no longer requires that the doctor participate in that process (see 5., below).

3. Clarifying that an egg donor, who is not the spouse or nonmarital partner of the woman conceiving with the donation, is not the parent unless the courts finds sufficient evidence that she intended to be the parent. This provision codifies the California Supreme Court's holding in K.M. v. E.G. (2005) 37 Cal.4th 130, in which the court recognized that a woman who provided her ova to her partner with the intention of conceiving children together was the parent of the twins so conceived. In addition, this is generally consistent with the treatment of sperm donors.

4. Continuing existing law that a sperm donor donating to a woman other than his spouse, using a doctor or licensed sperm bank, is considered a parent unless he and the woman sign an agreement otherwise prior to conception. Thus, the sperm donor donating through a doctor or a sperm bank is not the father, unless he agrees otherwise in writing.

5. Creating basically the opposite standard for sperm donors who do not use a doctor or sperm bank -- they may be parents unless they agree otherwise prior to conception. Given the complexities of parentage laws and parentage presumptions, the bill rightly does not provide that these men are definitely parents, which could exclude other legal or presumed parents. Instead, the bill states that if a doctor or sperm bank is not used, these donors are only treated as donors -- and not parents -- if either (a) the donor and the woman agreed in a writing signed prior to conception that he would not be a parent; or (b) a court finds satisfactory evidence, prior to conception, that the donor and the women intended to conceive through assisted reproduction and that both the donor and the woman did not intend for the donor to be a parent. Thus, these donors are most likely parents, unless they agree otherwise -- whether in writing or though other evidence -- prior to conception.

This is the bill's most significant change to the law. Today donors who do not use a doctor are very likely to be considered parents, regardless of the parties' intent. This change is designed to effectuate two important purposes. First, it will give clear instructions on how to legally recognize parties' intentions with respect to parentage. Parties who want to be parents can follow the rules to be recognized as such, and donors who want to be donors can do the same. Second, it will allow prospective parents and donors, who want to remain donors, to follow clear rules and conceive at home using donated sperm, without the expense of a doctor or a sperm bank, which today's law requires.

Legislation Last Year Created Optional Statutory Forms to Assist Intended Parents and Donors Using Assisted Reproduction and This Bill Clarifies and Expands Those Forms. Last year, AB 2344 (Ammiano), Chap. 636, Stats. 2014, created optional forms to allow intended parents to state, in writing, their intention to parent a child being conceived through use of assisted reproduction and also to let donors state their intention not to parent -- basically to effectuate the requirement for evidence of the parties' intent required by the sperm and egg donation statute, discussed above. These forms are strictly optional -- intended parents may evidence their intent using any other writing or other evidence, as provided. Moreover, because parentage laws can be very complicated, the forms do not -- nor can they -- disestablish the parentage rights of any other person or affect other presumptions of parentage. They just evidence the intent of the parties executing the forms.

The forms created last year address the following situations:

1. Married spouses who are using assisted reproduction to conceive and one partner will be giving birth.

2. Unmarried, intended parents using sperm donated from one of the intended parents.

3. Intended parents conceiving a child with eggs donated from one of them, while the other will give birth.

This bill updates the existing forms consistent with the changes that the bill makes to egg and sperm donors. In addition, the bill creates a new form, entitled "Intended Parent(s) Using a Known Sperm and/or Egg Donor(s) to Conceive a Child," designed to help intended parents who are using a known sperm and/or egg donor and do not wish for the donor to be a parent. This form is designed to help those families who use a known donor who does not intend to be a parent, but choose to perform the assisted reproduction without aid of a doctor or a sperm bank.

General Retroactive Effect of Legislation in Family Law. While this bill does not specifically state that it applies retroactively, unlike other areas of law changes to the Family Code generally apply retroactively. This legislation could therefore affect families today, provided they meet the requirements of the proposed legislation.

The Family Code provides that, subject to specific limitations, a "new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date." (Section 4; see In re Marriage of Fellows (2006) 39 Cal.4th 179, which, in an action to recover child support, applied a new statute that barred a child support obligor from asserting the defense of laches retroactively to facts that occurred before the statute's enactment.) In fact, this section goes on to provide that if an order is made prior to the effective date of a new law, the order may be modified after the new law’s effective date, based on that law. Thus, this bill will, as a general rule, be applied retroactively.

However, there are constitutional limits to retroactive application of a new law. In particular, a court cannot apply a statute retroactively if it impairs a vested right without due process of law. (Id. at 189.) The Family Code specifically recognizes this and provides that a court has discretion not to apply a new law if the court determines that application of it would "substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed" before the effective date of the new law "to the extent reasonably necessary to mitigate the substantial interference." (Section 4(h).) This discretionary provision allows a court, on a case-by-case basis, to prevent an injustice in the retroactive application of a new law. Thus, while the bill will, as a general rule, apply retroactively and could result in a change of the status of intended parents and donors, a court will have the discretion not to do so if it would substantially interfere with the rights of a party, who may have already established parentage or non-parentage based on existing law.

ARGUMENTS IN SUPPORT: Supporters write that that this bill allows "unmarried people using assisted reproduction to be fully recognized as parents on the same terms as married parents" and that the bill "modernizes California law to recognize that families are formed in many ways and that all families are equally deserving of protection."

REGISTERED SUPPORT / OPPOSITION:

Support

Equality California (co-sponsor)

National Center for Lesbian Rights (co-sponsor)

Our Family Coalition (co-sponsor)

American Civil Liberties Union of California

California LGBT Health & Human Services Network

Los Angeles LGBT Center

Rainbow Community Center of Contra Costa County

Transgender Law Center

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334