California Legislature—2015–16 Regular Session

Assembly BillNo. 1049


Introduced by Assembly Member Patterson

February 26, 2015


An act to amend Sections 7612, 7613, 7960, and 7961 of, and to amend the heading of Part 7 (commencing with Section 7960) of Division 12 of, the Family Code, and to amend Section 305.6 of the Welfare and Institutions Code, relating to children.

LEGISLATIVE COUNSEL’S DIGEST

AB 1049, as introduced, Patterson. Parent and child relationship.

(1) Under existing law, a man is conclusively presumed to be the father of a child if he was married to and cohabiting with the child’s mother, except as specified. Existing law also provides that if a man signs a voluntary declaration of paternity, it has the force and effect of a judgment of paternity, subject to certain exceptions. Existing law provides that these presumptions are rebuttable.

This bill would state that a person’s offer or refusal to sign a voluntary declaration of paternity may be used as a factor, but shall not be determinative as to the issue of legal parentage in any proceedings regarding the establishment or termination of parental rights.

(2) Existing law provides that the spouse of a woman who conceives through assisted reproduction with semen donated by a man not her husband, as specified, is treated in law as if he or she were the natural parent of a child thereby conceived. 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 donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.

This bill would additionally provide that the spouse of a women who conceives through assisted reproduction with oocytes donated for reproductive purposes is treated in law as if he or she were the natural parent of the child, and the woman who conceives the child is treated in law as the natural parent unless the woman is a surrogate mother, as defined. The bill would further provide that the donor of oocytes provided to a licensed physician or to a licensed egg bank for use in assisted reproduction of a woman other than the donor, her spouse, or domestic partner is treated in law as if she were not the natural parent of a child thereby conceived, unless otherwise specified.

(3) Existing law requires a nonattorney surrogacy facilitator to direct his or her client to deposit client funds in an independent, bonded escrow account or a trust account maintained by an attorney, subject to specified withdrawal requirements.

This bill would additionally require a nonattorney donor facilitator to direct his or her client to deposit client funds, as specified above.

(4) Existing law prohibits a peace officer from taking into temporary custody, without a warrant, a newborn who is in a hospital if specified conditions exist, including that the newborn or his or her birth mother tested positive for illegal drugs, the newborn is the subject of a proposed adoption, and a Health Facility Minor Release Report has been completed by the hospital, as specified.

This bill would instead prohibit a peace officer or child welfare agency worker from taking into temporary custody, without a warrant, a newborn who is in a hospital, if among other conditions, the newborn appears to come within the description of a dependent child of the juvenile court. The bill would require a hospital, whenever it makes a report or referral to a child welfare agency or law enforcement agency regarding a newborn, to immediately advise the birth parent or parents in writing of the parent’s right to contact an attorney or a licensed private adoption agency for assistance with placing the newborn for adoption, and to complete a Health Facility Minor Release Report upon request by a parent. The bill would require a child welfare agency worker who investigates the hospital report or referral to, prior to filing a dependency petition for a newborn who has not yet been discharged from the hospital, confirm that the hospital has advised the birth parent or parents in writing of the right to place the newborn for adoption and allow the parent a reasonable opportunity to place the newborn for adoption before the newborn is discharged from the hospital. By creating additional duties for local officials, this bill would impose a state-mandated local program.

(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 7612 of the Family Code is amended to
2read:

3

7612.  

(a) Except as provided in Chapter 1 (commencing with
4Section 7540) and Chapter 3 (commencing with Section 7570) of
5Part 2 or in Section 20102, a presumption under Section 7611 is
6a rebuttable presumption affecting the burden of proof and may
7be rebutted in an appropriate action only by clear and convincing
8evidence.

9(b) If two or more presumptions arise under Section 7610 or
107611 that conflict with each other, or if a presumption under
11Section 7611 conflicts with a claim pursuant to Section 7610, the
12presumption which on the facts is founded on the weightier
13considerations of policy and logic controls.

14(c) In an appropriate action, a court may find that more than
15two persons with a claim to parentage under this division are
16parents if the court finds that recognizing only two parents would
17be detrimental to the child. In determining detriment to the child,
18the court shall consider all relevant factors, including, but not
19limited to, the harm of removing the child from a stable placement
20with a parent who has fulfilled the child’s physical needs and the
21child’s psychological needs for care and affection, and who has
22assumed that role for a substantial period of time. A finding of
23detriment to the child does not require a finding of unfitness of
24any of the parents or persons with a claim to parentage.

25(d) Unless a court orders otherwise after making the
26determination specified in subdivision (c), a presumption under
P4    1Section 7611 is rebutted by a judgment establishing parentage of
2the child by another person.

3(e) Within two years of the execution of a voluntary declaration
4of paternity, a person who is presumed to be a parent under Section
57611 may file a petition pursuant to Section 7630 to set aside a
6voluntary declaration of paternity. The court’s ruling on the petition
7to set aside the voluntary declaration of paternity shall be made
8taking into account the validity of the voluntary declaration of
9paternity, and the best interests of the child based upon the court’s
10consideration of the factors set forth in subdivision (b) of Section
117575, as well as the best interests of the child based upon the
12nature, duration, and quality of the petitioning party’s relationship
13with the child and the benefit or detriment to the child of continuing
14that relationship. In the event of any conflict between the
15presumption under Section 7611 and the voluntary declaration of
16paternity, the weightier considerations of policy and logic shall
17control.

18(f) A voluntary declaration of paternity is invalid if, at the time
19the declaration was signed, any of the following conditions exist:

20(1) The child already had a presumed parent under Section 7540.

21(2) The child already had a presumed parent under subdivision
22(a), (b), or (c) of Section 7611.

23(3) The man signing the declaration is a sperm donor, consistent
24with subdivision (b) of Section 7613.

begin insert

25(g) A person’s offer or refusal to sign a voluntary declaration
26of paternity may be used as a factor, but shall not be determinative,
27as to the issue of legal parentage in any proceedings regarding
28the establishment or termination of parental rights.

end insert
29

SEC. 2.  

Section 7613 of the Family Code is amended to read:

30

7613.  

(a) If, under the supervision of a licensed physician and
31surgeon and with the consent of her spouse,begin insert if married,end insert a woman
32conceives through assisted reproduction with semen donated by a
33man not her husbandbegin insert or with oocytes donated for reproductive
34purposesend insert
, the spouse is treated in law as if he or she were the
35natural parent of a child therebybegin delete conceived.end deletebegin insert conceived and the
36woman who conceives the child is treated in law as the natural
37parent unless the woman is a surrogate mother as defined under
38subdivision (f) of Section 7960.end insert
The spouse’s consent shall be in
39writing and signed by both spouses. The physician and surgeon
40shall certify their signatures and the date of the assisted
P5    1reproduction procedure, and retain the spouse’s consent as part of
2the medical record, where it shall be kept confidential and in a
3sealed file. However, the physician and surgeon’s failure to do so
4does not affect the parent and child relationship. All papers and
5records pertaining to the assisted reproduction procedure, whether
6part of the permanent record of a court or of a file held by the
7supervising physician and surgeon or elsewhere, are subject to
8inspection only upon an order of the court for good cause shown.

9(b) The donor of semen provided to a licensed physician and
10surgeon or to a licensed sperm bank for use in assisted reproduction
11of a woman other than the donor’s spouse is treated in law as if
12he were not the natural parent of a child thereby conceived, unless
13otherwise agreed to in a writing signed by the donor and the woman
14prior to the conception of the child.

begin insert

15(c) The donor of oocytes provided to a licensed physician and
16surgeon or to a licensed egg bank for use in assisted reproduction
17of a woman other than the donor, her spouse, or domestic partner
18is treated in law as if she were not the natural parent of a child
19thereby conceived, unless otherwise agreed to in a writing signed
20by the donor and the recipient of the oocytes prior to the conception
21of the child.

end insert
22

SEC. 3.  

The heading of Part 7 (commencing with Section 7960)
23of Division 12 of the Family Code is amended to read:

24 

25PART 7.  SURROGACYbegin delete FACILITATORS ANDend deletebegin insert AND DONOR
26FACILITATORS,end insert
ASSISTED REPRODUCTION AGREEMENTS
27FOR GESTATIONAL CARRIERSbegin insert, AND OOCYTE DONATIONSend insert

28

 

29

SEC. 4.  

Section 7960 of the Family Code is amended to read:

30

7960.  

For purposes of this part, the following terms have the
31following meanings:

32(a) “Assisted reproduction agreement” has the same meaning
33as defined in subdivision (b) of Section 7606.

34(b) “Fund management agreement” means the agreement
35between the intended parents and the surrogacybegin insert or donorend insert facilitator
36relating to the fee or other valuable consideration for services
37rendered or that will be rendered by the surrogacybegin insert or donorend insert
38 facilitator.

P6    1(c) “Intended parent” means an individual, married or unmarried,
2who manifests the intent to be legally bound as the parent of a
3child resulting from assisted reproduction.

4(d) “Nonattorney surrogacybegin insert end insertbegin insertor donorend insert facilitator” means a
5surrogacybegin insert or donorend insert practitioner who is not an attorney in good
6standing licensed to practice law in this state.

7(e) “Surrogacybegin insert or donorend insert facilitator” means a person or
8organization that engages in either of the following activities:

9(1) Advertising for the purpose of soliciting parties to an assisted
10reproduction agreementbegin insert or for the donation of oocytes for use by
11a person other than the provider of the oocytes,end insert
or acting as an
12intermediary between the parties to an assisted reproduction
13begin delete agreement.end deletebegin insert agreement or oocyte donation.end insert

14(2) Charging a fee or other valuable consideration for services
15rendered relating to an assisted reproductionbegin delete agreement.end deletebegin insert agreement
16or oocyte donation.end insert

17(f) “Surrogate” means a woman who bears and carries a child
18for another through medically assisted reproduction and pursuant
19to a written agreement, as set forth in Sections 7606 and 7962.
20Within the definition of surrogate are two different and distinct
21types:

22(1) “Traditional surrogate” means a woman who agrees to
23gestate an embryo, in which the woman is the gamete donor and
24the embryo was created using the sperm of the intended father or
25a donor arranged by the intended parent or parents.

26(2) “Gestational carrier” means a woman who is not an intended
27parent and who agrees to gestate an embryo that is genetically
28unrelated to her pursuant to an assisted reproduction agreement.

begin insert

29(g) “Donor” means a woman who provides her oocytes for use
30by another for the purpose of assisting the recipient of the oocytes
31in having a child or children of her own.

end insert
32

SEC. 5.  

Section 7961 of the Family Code is amended to read:

33

7961.  

(a) A nonattorney surrogacybegin insert or donorend insert facilitator shall
34direct the client to deposit all client funds into either of the
35following:

36(1) An independent, bonded escrow depository maintained by
37a licensed, independent, bonded escrow company.

38(2) A trust account maintained by an attorney.

39(b) For purposes of this section, a nonattorney surrogacybegin insert or
40donorend insert
facilitator may not have a financial interest in any escrow
P7    1company holding client funds. A nonattorney surrogacybegin insert or donorend insert
2 facilitator and any of its directors or employees shall not be an
3agent of any escrow company holding client funds.

4(c) Client funds may only be disbursed by the attorney or escrow
5agent as set forth in the assisted reproduction agreement and fund
6management agreement.

7(d) This section shall not apply to funds that are both of the
8following:

9(1) Not provided for in the fund management agreement.

10(2) Paid directly to a medical doctor for medical services or a
11psychologist for psychological services.

12

SEC. 6.  

Section 305.6 of the Welfare and Institutions Code is
13amended to read:

14

305.6.  

(a) Any peace officerbegin insert or child welfare agency workerend insert
15 may, without a warrant, take into temporary custody a minor who
16is in a hospital if the release of the minor to a prospective adoptive
17parent or a representative of a licensed adoption agency poses an
18immediate danger to the minor’s health or safety.

19(b) (1) Notwithstanding subdivision (a) and Section 305, a
20peace officerbegin insert or child welfare agency workerend insert may not, without a
21warrant, take into temporary custody a minor who is in a hospital
22if all of the following conditionsbegin delete exist:end deletebegin insert exist at any time prior to
23the minor’s discharge from the hospital:end insert

24(A) The minor is a newborn whobegin delete tested positive for illegal drugs
25or whose birth mother tested positive for illegal drugs.end delete
begin insert is described
26in Section 300.end insert

27(B) The minor is the subject of a proposed adoption and a Health
28Facility Minor Release Report, prescribed by the department, has
29been completed by the hospital, including the marking of the boxes
30applicable to an independent adoption or agency adoption planning,
31and signed by the placing birth parent or birth parents, as well as
32either the prospective adoptive parent or parents or an authorized
33representative of a licensed adoption agency, prior to the discharge
34of the birth parent or the minor from the hospital. Prior to signing
35the Health Facility Minor Release Report, the birth parent or
36parents shall be given a notice written in at least 14-point pica
37type, containing substantially the following statements:

38(i) That the Health Facility Minor Release Report does not
39constitute consent to adoption of the minor by the prospective
40adoptive parent or parents, or any other person.

P8    1(ii) That the Health Facility Minor Release Report does not
2constitute a relinquishment of parental rights for the purposes of
3adoption.

4(iii) That the birth parent or parents or any person authorized
5by the birth parent or parents may reclaim the minor at any time
6from the prospective adoptive parent or parents or any other person
7to whom the minor was released by the hospital, as provided in
8Sections 8814.5, 8815, or 8700 of the Family Code.

9This notice shall be signed by the birth parent or parents and
10attached to the Health Facility Minor Release Report, a copy of
11which shall be provided to the birth parent or parents by hospital
12personnel at the time the form is completed.

13(C) The release of the minor to a prospective adoptive parent
14or parents or an authorized representative of a licensed adoption
15agency does not pose an immediate danger to the minor.

16(D) An attorney or an adoption agency has provided
17documentation stating that he or she, or the agency, is representing
18the prospective adoptive parent or parents for purposes of the
19adoption. In the case of an independent adoption, as defined in
20Section 8524 of the Family Code, the attorney or adoption agency
21shall provide documentation stating that the prospective adoptive
22parent or parents have been informed that the child may be eligible
23for benefits provided pursuant to the Adoption Assistance Program,
24as set forth in Chapter 2.1 (commencing with Section 16115) of
25Part 4 of Division 9, only if, at the time the adoption request is
26filed, the child has met the requirements to receive federal
27supplemental security income benefits pursuant to Subchapter XVI
28(commencing with Section 1381) of Chapter 7 of Title 42 of the
29United States Code, as determined and documented by the federal
30Social Security Administration.

31(E) The prospective adoptive parent or parents or their
32representative, or an authorized representative of a licensed
33adoption agency, provides all of the following to the peace officer
34begin delete who is at the hospitalend deletebegin insert end insertbegin insertor child welfare agency worker who seeksend insert
35 to take the minor into temporary custody:

36(i) A fully executed copy of the Health Facility Minor Release
37Report.

38(ii) A writtenbegin delete form, developed by the department,end deletebegin insert formend insert signed
39by either the prospective adoptive parent or parents or a
P9    1representative of the licensed adoption agency, which shall include
2all of the following:

3(I) A statement that the minor is the subject of a proposed
4adoption.

5(II) A declaration that the signer or signers will immediately
6notify the county child welfare agency pursuant to Section 11165.9
7of the Penal Code if the adoption plan is terminated for any reason,
8and will not release the minor to the birth parent or parents or any
9designee of the birth parent or parents until the county child welfare
10agency or local law enforcement agency completes an investigation
11and determines that release of the minor to the birth parent or
12parents or a designee of the birth parent or parents will not create
13an immediate risk to the health or safety of the minor.

14(III) An agreement to provide a conformed copy of the adoption
15request or guardianship petition to the county child welfare agency
16within five business days after filing.

17(IV) The names, identifying information, and contact
18information for the minor, for each prospective adoptive parent,
19and for each birth parent, to the extent that information is known.
20In the case of an agency adoption where no prospective adoptive
21parent or parents are identified at the time of the minor’s release
22from the hospital, the licensed adoption agency may provide the
23information as it pertains to the licensed or certified foster home
24into which the agency intends to place the minor.

25(c) (1) In every independent adoption proceeding under this
26section, the prospective adoptive parent or parents shall file with
27the court either an adoption request within 10 working days after
28execution of an adoption placement agreement, or a guardianship
29petition within 30 calendar days after the child’s discharge from
30the hospital, whichever is earlier.

31(2) If the adoption plan for a minor who was released from the
32hospital pursuant to subdivision (b) is terminated for any reason,
33the prospective adoptive parent or parents or licensed adoption
34agency shall immediately notify the county child welfare agency.
35The prospective adoptive parent or parents or licensed adoption
36agency may not release the minor into the physical custody of the
37birth parent or parents, or any designee of the birth parent or
38parents, until the county child welfare agency or local law
39enforcement agency completes an investigation and determines
40that release of the minor to the birth parent or parents or a designee
P10   1of the birth parent or parents will not create an immediate risk to
2the health or safety of the minor.

begin insert

3(d) If a hospital makes a report or referral to a child welfare
4agency or law enforcement agency regarding a minor newborn,
5the hospital shall do both of the following:

end insert
begin insert

6(1) Immediately advise the birth parent or parents in writing of
7the parent’s right to contact an attorney or a licensed private
8adoption agency for assistance with placing the minor newborn
9for adoption in accordance with this section.

end insert
begin insert

10(2) Upon request by a birth parent, complete a Health Facility
11Minor Release Report and provide copies of the report to all
12parties listed in subparagraph (B) of paragraph (1) of subdivision
13(b), even if the minor newborn is ineligible for release at that time
14for any reason.

end insert
begin insert

15(e) Prior to filing a petition pursuant to Section 300 regarding
16a minor newborn who has not yet been discharged from the
17hospital, a child welfare agency worker who investigates a hospital
18report or referral regarding the minor newborn shall do all of the
19following:

end insert
begin insert

20(1) Confirm that the hospital has advised the parent in writing
21of the right to place the minor newborn for adoption.

end insert
begin insert

22(2) Allow a parent who wishes to place a minor newborn for
23adoption a reasonable opportunity to do so at any time before the
24minor newborn is discharged from the hospital.

end insert
begin insert

25(3) Implement interim measures, as necessary, to ensure the
26safety and well-being of the minor newborn pending adoptive
27placement, such as instructions to the hospital not to discharge
28the minor newborn to any agency or person without approval from
29the child welfare agency, which approval shall be given upon
30satisfaction of the requirements of this section.

end insert
begin delete

31(d)

end delete

32begin insert(f)end insert Nothing in this section is intended to create a duty that
33requires law enforcement to investigate the prospective adoptive
34parent or parents.

35

SEC. 7.  

If the Commission on State Mandates determines that
36this act contains costs mandated by the state, reimbursement to
37local agencies and school districts for those costs shall be made
P11   1pursuant to Part 7 (commencing with Section 17500) of Division
24 of Title 2 of the Government Code.



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