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SB 115 Analysis - Parental Rights given to Sperm Donors

Posted on September 12, 2013 at 1:35 AM

Bill SB 115 Analysis – Parental Rights given to Sperm Donors

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The current status of this bill is that it has failed deadline and was last located in the Judiciary committee.


Current law Family Code §7613(b) distinguishes between known donors who plan to co-parent the child from the start, and sperm donors who provide their genetic material without any intention of having the rights and responsibilities of parenthood.  Currently the law states that a known sperm donor who donates his sperm through a licensed physician or sperm bank for use by a woman who is not his wife is not the legal father of the child so conceived unless otherwise agreed upon in writing by the sperm donor and recipient prior to conception.


Current Family Code §7630, which the SB 115 proposes to amend, states that “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 subdivision (d) or (f) of Section 7611.” SB 115 proposes to add the language “Notwithstanding subdivision (b) of Section 7613, 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 subdivision (d) of Section 7611.” Though this may not seem like a major change, the effect of this language is that it allows a sperm donor under Family Code §7613(b) to seek parental recognition of a child resulting from the donation of his sperm regardless of the express intention of the parties at the time of the sperm donation and assisted reproduction.


This proposed bill specifically applies to a known sperm donor who donates his sperm with no initial intention of having legal rights regarding the child and who then, at a later date, changes his mind. This bill would allow such sperm donors to bring a parentage action to seek legal recognition as the child’s legal parent despite the sperm recipient’s intention at the time of sperm receipt and conception. This would directly affect the LGBT community as this community relies on Assisted Reproduction in order to have children.


Taken together with the bill SB 274 which just passed the legislative process and has already been ordered enrolled, LGBT families and other families requiring the assistance of sperm donors are in grave danger. 


Previously, (and currently until SB 274 is enrolled and entered as law) the law held that a child can have only two legally recognized parents. A Court of Appeal held this in 2011 in the In re M.C. case. Until now LGBT families have been able to protect their family units by using a Sperm Donor Agreements together with a determination of parentage recognizing the two intended parents. In reliance on the Family Code section precluding sperm donors from seeking parental rights as well as the determination of the two legally recognized intended parents, LGBT couples have been able to protect their family units formed through the use of sperm donation in the method required by statute. 


The newly passed SB 274 provides that a child may have more than two legally recognized parents and that a court may divide custody and visitation between the multiple recognized parents. The passing of this bill is a travesty to the best interest of children, and action should be taken to prevent this bill from becoming law. However, taken in conjunction with the proposed SB 115, the LGBT couples who use sperm donors to build their families with the explicit understanding that the sperm donor will not have any parental rights would be in danger of having their families divided and their children taken from them if the donor later changes his mind. 


This bill is contrary to the intention of those who use Assisted Reproduction to build their families and places all such families in danger. It is discriminatory in its effect and its intent. This bill may not be permitted to pass and must be opposed.   

 

Rivka Israel, Esq.

 

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