California Donor, Adoption and Marriage Laws

California Donor, Adoption and Marriage Laws

 
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California Donor, Adoption and Marriage Laws

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California state code relating to sperm donation, artificial insemination and same-sex adoption

Parental Rights

UPDATE 10/4/2013: California state code was amended in October 2013 to allow children in California to have more than two legal parents. Sen. Mark Leno (D-San Francisco) authored the bill to address changing family structures, including situations where same-sex couples have a child with an opposite-sex biological parent. (Reference:www.latimes.com)

Senate Bill No. 274 Chapter 564

SECTION 1.
The Legislature finds and declares all of the following:
(a) Most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.

(b) The purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.

(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.

(d) It is the intent of the Legislature that this bill will only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.


Sperm Donation and Insemination

UPDATE 9/26/2014: California state code was amended by Assembly Bill No. 2344 to allow unmarried parents using assisted reproduction can sign a statement of intended parentage, ensuring the father does not fall under the Uniform Parentage Acts as a sperm donor.

UPDATE 4/18/2013: California state code was ammended in January 2013 to spedifically protect physicians from liability is using fresh sperm (unscreened and not frozen) as long as the recipient signed a waiver acknowledging they understand the risks. This change was successfully brough through a campaig to reduce the descrimination against unmarried women (same-sex couples, co-parents and single women) who are barred from medical services using an "intimate partner" of their choice. The change does not specifically address a known sperm donor.

FAM - 7613. - CHAPTER 2. Establishing Parent and Child Relationship [7610. - 7614.]

CHAPTER 2. Establishing Parent and Child Relationship [7610. - 7614.] ( Chapter 2 enacted by Stats. 1992, Ch. 162, Sec. 10. )

7613. (a) If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only upon an order of the court for good cause shown.

(b) 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.

(Amended by Stats. 2011, Ch. 185, Sec. 4. Effective January 1, 2012.)

7613.5. (a) An intended parent may, but is not required to, use the forms set forth in this section to demonstrate his or her intent to be a legal parent of a child conceived through assisted reproduction. These forms shall satisfy the writing requirement specified in Section 7613, and are designed to provide clarity regarding the intentions, at the time of conception, of intended parents using assisted reproduction. These forms do not affect any presumptions of parentage based on Section 7611, and do not preclude a court from considering any other claims to parentage under California statute or case law.

(b) These forms apply only in very limited circumstances. Please read the forms carefully to see if you qualify for use of the forms.

(c) These forms do not apply to assisted reproduction agreements for gestational carriers or surrogacy agreements.

(d) Nothing in this section shall be interpreted to require the use of one of these forms to satisfy the writing requirement of Section 7613.

(e) The following are the optional California Statutory Forms for Assisted Reproduction: (see reference source for forms)

HSC - 1644.5. - CHAPTER 4.2. Donations of Organs, Tissues,or Body Fluids [1644. - 1644.6.]

CHAPTER 4.2. Donations of Organs, Tissues,or Body Fluids [1644. - 1644.6.] ( Heading of Chapter 4.2 renumbered from Chapter 4.1 by Stats. 1991, Ch. 801, Sec. 3. )

1644.5. (a) Except as provided in subdivision (c) or (d), no tissues shall be transferred into the body of another person by means of transplantation, unless the donor of the tissues has been screened and found nonreactive by laboratory tests for evidence of infection with human immunodeficiency virus (HIV), agents of viral hepatitis (HBV and HCV), and syphilis. For tissues that are rich in viable leukocytes, the tissue shall be tested for evidence of infection with human T lymphotrophic virus (HTLV) and found nonreactive. The department may adopt regulations requiring additional screening tests of donors of tissues when, in the opinion of the department, the action is necessary for the protection of the public, donors, or recipients.

(b) Notwithstanding subdivision (a), infectious disease screening of blood and blood products shall be carried out solely in accordance with Article 2 (commencing with Section 1602.5) of Chapter 4.

(c) All donors of sperm shall be screened and found nonreactive as required under subdivision (a), except in the following instances:

(1) A recipient of sperm, from a sperm donor known to the recipient, may waive a second or other repeat testing of that donor if the recipient is informed of the requirements for testing donors under this section and signs a written waiver.

HSC - 1644.6. - CHAPTER 4.2. Donations of Organs, Tissues,or Body Fluids [1644. - 1644.6.]

CHAPTER 4.2. Donations of Organs, Tissues,or Body Fluids [1644. - 1644.6.] ( Heading of Chapter 4.2 renumbered from Chapter 4.1 by Stats. 1991, Ch. 801, Sec. 3. )

1644.6. (a) No physician and surgeon shall be subject to liability for damages for any cause of action based solely on the use of sperm donated by a sexually intimate partner of the recipient if both of the following conditions are met:

(1) The physician and surgeon provides insemination or assisted reproductive technology services and has obtained the informed consent of the recipient, who waives second or other repeat testing of the sexually intimate partner and acknowledges and accepts the risks of using sperm from a sexually intimate partner who has not undergone repeat testing, in accordance with paragraph (1) of subdivision (c) of Section 1644.5.

(2) The physician and surgeon complies with the applicable requirements specified in Section 1644.5.

(b) No physician and surgeon shall be subject to disciplinary action against his or her professional license, or subject to peer review by a professional association peer review body, as defined in clause (iii) of subparagraph (B) of paragraph (1) of subdivision (a) of Section 805 of the Business and Professions Code, because the physician and surgeon used sperm donated by a sexually intimate partner of the recipient in providing insemination or assisted reproductive technology services if both of the following conditions are met:

(1) The physician and surgeon has obtained the informed consent of the recipient who waives second or other repeat testing of the sexually intimate partner and acknowledges and accepts the risks of using sperm from a sexually intimate partner who has not undergone repeat testing, in accordance with paragraph (1) of subdivision (c) of Section 1644.5.

(2) The physician and surgeon complies with the applicable requirements specified in Section 1644.5.

(c) A tissue bank that is owned and operated by a physician and surgeon shall not be subject to disciplinary action against its license because of the use of sperm donated by a sexually intimate partner of the recipient in providing insemination or assisted reproductive technology services if both of the following conditions are met:

(1) A physician and surgeon affiliated with the tissue bank has obtained the informed consent of the recipient, who waives second or other repeat testing of the sexually intimate partner and acknowledges and accepts the risks of using sperm from a sexually intimate partner who has not undergone repeat testing, in accordance with paragraph (1) of subdivision (c) of Section 1644.5.

(2) The physician and surgeon complies with the applicable requirements specified in Section 1644.5.

(d) Nothing in this section shall create a duty for a physician and surgeon to use sperm donated by a sexually intimate partner of the recipient in providing insemination or assisted reproductive technology services if the physician and surgeon reasonably concludes that the insemination or services do not meet the 2008 American Society for Reproductive Medicine guidelines for gamete and embryo donation.

(e) Nothing in this section shall be construed to affect any liability that may be imposed pursuant to a federal rule or regulation when a physician and surgeon, or tissue bank provides insemination or assisted reproductive technology services.

(f) For purposes of this section, "sexually intimate partner" includes a known or designated donor to whose sperm the recipient has previously been exposed in a nonmedical setting in an attempt to conceive.

(Added by Stats. 2012, Ch. 699, Sec. 3. Effective January 1, 2013.)

Updated Monday, March 9 2015


Recognition of Same-Sex Couples

From HRC.org California Marriage/Relationship Recognition Law

Same-sex marriages legally entered into on or before Nov. 4, 2008, in other states or countries will be recognized as marriages under California law. Same-sex marriages taking place in other states or countries after Nov. 4, 2008, will only be recognized as domestic partnerships.

Recent Developments in California

On May 15, 2008, the California Supreme Court ruled that same-sex couples have the same right to marry as different-sex couples under the state constitution.

Between June 17 and November 4, 2008, more than 18,000 same-sex couples married in California. On November 4, 2008, voters in California narrowly approved Proposition 8, which amends the state constitution to prohibit marriage equality, enshrining discrimination in the state constitution. A lawsuit filed on Nov. 5 by the ACLU, Lambda Legal, and the National Center for Lesbian Rights seeks to invalidate Proposition 8. On May 26, 2009, the California Supreme Court in Strauss v. Horton upheld Proposition 8, but also held that the 18,000 marriages of same-sex couples that took place between June 17 and November 4, 2008, are still marriages under California law.

On May 26, 2009, David Boies and Ted Olsen filed Perry v. Schwarzenegger in U.S. District Court for the Northern District of California, challenging the constitutionality of Proposition 8 under the U.S. Constitution. California Attorney General Jerry Brown has backed the lawsuit. Trial is scheduled for January 2010.

California Domestic Partners

Gov. Gray Davis, a Democrat, signed a bill Oct. 14, 2001, that enhances the state's domestic partner law by extending health care, estate planning and adoption benefits to unmarried couples who have registered as domestic partners. The law gives same-sex couples some of the essential resources necessary to protect their families and their relationships.

Benefits - Among the benefits available to California domestic partners as a result of the new law are:

Davis signed another domestic partner bill into law on Sept. 10, 2002. The law provides inheritance rights for surviving domestic partners of California residents who die without a will or other estate plan. The new law creates parity between domestic partners and spouses for the purposes of "intestate succession," or inheritance in the absence of a will.

Eligibility - To be eligible for these and other benefits under California law, a couple must file a notarized Declaration of Domestic Partnership with the secretary of state's office along with a $10 filing fee. In this declaration, they must declare that they:

To obtain the Declaration of Domestic Partnership form, visit a local county registrar's office or the California secretary of state's office - or download a copy.

Updated: Thu, February 26, 2009 - 1:00:27


Adoption

UPDATE 9/26/2014: California state code was amended by Assembly Bill No. 2344 to exempt step-parent adoptions between married or domestic partners where the child was born during the marriage from going through the county welfare and social services interview process (and related costs) during the adoption process.

Section 9000.5 and 9002 of the Family Code:

9000.5. (a) Stepparent adoptions where one of the spouses or partners gave birth to the child during the marriage or domestic partnership, including a registered domestic partnership or civil union from another jurisdiction, shall follow the procedure provided by this section. Unless otherwise provided in this section, the procedures for stepparent adoptions apply.

(b) The following are not required in stepparent adoptions under this section unless otherwise ordered by the court for good cause:
(1) A home investigation pursuant to Section 9001 or a home study.
(2) Costs incurred pursuant to Section 9002.
(3) A hearing pursuant to Section 9007.

(c) For stepparent adoptions filed under this section, the following shall be filed with the petition for adoption:
(1) A copy of the parties' marriage certificate, registered domestic partner certificate, or civil union from another jurisdiction.
(2) A copy of the child's birth certificate.
(3) Declarations by the parent who gave birth and the spouse or partner who is adopting explaining the circumstances of the child's conception in detail sufficient to identify whether there may be other persons with a claim to parentage of the child who is required to be provided notice of, or who must consent to, the adoption.

(d) The court may order a hearing to ascertain whether there are additional persons who must be provided notice of, or who must consent to, the adoption if it appears from the face of the pleadings and the evidence that proper notice or consent have not been provided.

(e) The court shall grant the stepparent adoption under this section upon finding both of the following:
(1) That the parent who gave birth and the spouse or partner who is adopting were married or in a domestic partnership, including a registered domestic partnership or civil union from another jurisdiction, at the time of the child's birth.
(2) Any other person with a claim to parentage of the child who is required to be provided notice of, or who must consent to, the adoption has been noticed or provided consent to the adoption.

9002. Except as provided in Section 9000.5, in a stepparent adoption, the prospective adoptive parent is liable for all reasonable costs incurred in connection with the stepparent adoption, including, but not limited to, costs incurred for the investigation required by Section 9001, up to a maximum of seven hundred dollars ($700). The court, probation officer, qualified court investigator, or county welfare department may defer, waive, or reduce the fee if its payment would cause economic hardship to the prospective adoptive parent detrimental to the welfare of the adopted child.


 

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