Here is the proposed California law that would give family court judges discretion to decide paternity in cases like his:
SB 115, as amended, Hill. Parent and child relationship.Normally I speak up for fathers rights, but I find it hard to see how any good can come from giving family court more discretion and letting "any interested party [may] bring an action at any time".
Existing law, the Uniform Parentage Act, sets forth the circumstances under which a man may be presumed to be the natural father of a child. Under existing law, those circumstances include if he receives the child into his home and openly holds out the child as his natural child and if the child is in utero after the father’s death and specified conditions applicable with respect to determining rights to the property to be distributed upon the death of the decedent are satisfied. Existing law authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship that is presumed under those circumstances. The Uniform Parentage Act also provides that the donor of semen provided to a licensed physician and surgeon 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, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.
This bill would instead provide that notwithstanding the treatment in law of the sperm donor under those circumstance circumstances, any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under the previously described circumstances parentage of a man presumed to be the father because he receives the child into his home and openly holds out the child as his natural child.
This bill only affects kids resulting from physician-assisted reproduction. Under those circumstances, the parties can put their intentions in writing, and those intentions are binding. That seems reasonable to me. Jason Patric's problem was that he did not put in writing his intention to be the legal father, and now there is no proof that it was his intention.
The sperm banks are opposed:
This bill has moved quickly without challenge through the state Senate positioned as a "technical change" to the Family Code. In fact, it is far more impactful than it appears. SB 115 would grant any sperm donor (although not egg donors or surrogates) the right to sue for custody regardless of the mother's intent, regardless of any signed agreement between the recipient and donor, and regardless of the donor's lack of any financial or legal obligations to the child.For a more thorough discussion of the pros and cons, listen to this radio show on SB 115.
"Sperm donors are assured, and the laws have previously upheld, that a donor will have no legal obligations to provide child support and in turn they agree to waive all parental rights, unless they sign a co-parenting agreement. This bill threatens these standards by allowing a donor to claim parentage at any time," said Dr. Charles Sims, CEO, California Cryobank.
Here is the official analysis:
DIGEST : This bill clarifies that notwithstanding current law, any interested party may bring an action for the purpose of determining a parent and child relationship at any time.The reasoning loses me in the last sentence. The existing law is to respect marital status, physician declarations, and birth certificates. The intent of this bill is to throw all that out the window if some silly judges decides that it is in the "best interest of the child" (BIOTCh). This is yet another bill that is anti-marriage, anti-contract, and anti-freedom to manage our own lives.
1.Provides that the child of a wife who lives with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (Fam. Code Sec. 7540)
2.Provides that a man is presumed to be the natural father of a child in any of the following instances:
A. He and the child's mother are married to each other when the child is born, or the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
B. Before the child's birth, he and the child's mother attempted to marry each other, although the attempted marriage is or could be declared invalid, and either the child is born during the attempted marriage or within 300 days after its termination, or if the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation; or
C. After the child's birth, he and the mother have married or attempted to marry and with his consent he is named on the birth certificate as the child's father, or he has obligated to support the child in writing. (Fam. Code Sec. 7611 (a)-(c))
1.Provides that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds out the child as his natural child. (Fam. Code Sec. 7611 (d))
2.Authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed because either he had received the child into his home and openly holds out the child as his natural child, or the child was in utero after the death of the presumed parent and specified conditions are satisfied. (Fam. Code Sec. 7630 (b))
3.Provides that if two or more paternity presumptions arise, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. (Fam. Code Sec. 7612)
4.Provides that a donor of semen to a licensed physician or 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 the child thereby conceived unless otherwise agreed to in a writing signed prior to the conception of the child. (Fam. Code Sec. 7613 (b))
This bill allows any interested party, regardless of treatment under the law as a sperm donor to a licensed physician or sperm bank, to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed because the presumed father received the child into his home and openly held the child out as his own.
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 Sec. 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 impelling 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 can create legal tensions. AB 1349 (Hill, Chapter 185, Statutes of 2011) sought to address a number of these tensions and, among other provisions dealing with voluntary declarations of paternity, 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. This bill seeks to further clarify how presumptions of parentage work in situations where an individual is both a presumed father and a sperm donor.
According to the author's office:
According to the Centers for Disease Control, California has more fertility clinics than any other state in the nation. Unmarried individuals in California are increasingly making use of assisted reproduction to conceive children with the intent to raise those children jointly. Current law is unclear about the relationship between the statutes within the Family Code, which govern both the treatment of a man who provides his semen to a licensed physician for use in assisted reproduction, and the ability of any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the presumed father and child relationship.
This [bill] is necessary because California trial courts are interpreting existing statutory language governing the treatment of donors of semen for use in insemination or in vitro fertilization of a woman other than a donor's wife to find that it precludes further examination of the presumed father and child relationship. Courts are finding it difficult to harmonize the two relevant code sections, even when doing so is in the best interest of the child, and would preserve an ongoing relationship between a child and his/her known, biological father.
For centuries, civilization has been built on marriage and the family. Laws like this chip away at family autonomy, and give judges power to intervene. I am not against new technologies like sperm banks, but note that the sperm banks are against this law. The purpose of the law is not to allow new technologies, but to use the power of judges to redefine families.
Absolutely agree with you, George. That sentence claiming courts are finding it difficult to harmonize 7611(d) with 7613(b) is a complete misrepresentation. The court had no difficulty. When 7613(b) applies, 7611(d) does not.
7611(d) is more pertinent in an inheritance case where children of a marriage are trying to eliminate a child not of the marriage. During the lifetime of the father, he could simply assert paternity and sue for custody or visitation. Then the court would determine paternity either by voluntary admission of the parties or by force if necessary.
Thanks for the explanation. The trend is to replace bright-line rules with the whims of a judge. I prefer the rules. Even if the rules are not the best, there is often a work-around with predictable results. The judge is not predictable.
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