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Fred Silberberg

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Senate Bill 115 is Necessary to Protect Children and Fathers

Posted: 04/12/2013 3:55 pm

The Uniform Parentage Act governs the determination of parentage of children who are born of parents that are not married. The Act, in various forms, is implemented in the majority of states. One provision of the act provides that if a man provides semen to a licensed physician, for the purpose of inseminating an unmarried woman, the man is legally barred from claiming parentage of the child who results therefrom.

The original basis for the law was a means to allow both unmarried women and women who were married to men who were infertile to have children without fear that the sperm donor would eventually claim some right to the child. Years ago this was, and today in certain instances remains, a just result. But times have changed, medicine had changed and fertility treatments have become more accessible. At the same time, the fabric of family life has also changed. The law needs to accommodate that. Recently introduced in the California Legislature is Senate Bill 115, a bill necessary to clarify the state of the law when a man provides sperm to an unmarried partner, which would allow sperm donors to pursue parental rights in certain situations. The bill is intended to allow a limited class of fathers, those who have brought the children into their homes, and held the children out as their own, to obtain parentage rights to those children. The bill is necessary in order to protect those children from losing a relationship with their fathers.

Unmarried parents are commonplace in today's society. Often times, unmarried individuals, both straight and gay, will choose to have a child or children together. Like many others, these unmarried individuals sometimes have fertility problems and can only have children using Assisted Reproductive Technology. In many situations, these people go into the process with the best of intentions, that being to co-parent the children that result. In some situations they may not have that intention at the time of conception, but, ultimately both consent to participate in the upbringing of the child. In either situation, the child that results has a relationship with the other parent. Without the modification to the law addressed by SB 115, that relationship is not protected. If the mother who gave birth to the child wishes at any time thereafter to exclude the other parent, the law allows that.

Before alarmists contend that this bill might infringe upon the rights of women who choose to have children as single parents, or the rights of lesbian couples who need donated sperm in order to establish a family, there is one thing that needs to be kept in mind. This bill does not throw open the doors to litigation by any and all sperm donors. It specifically addresses only those men who have a relationship with the child. In those situations only, the bill prevents a mother from being able terminate the father-child relationship at her whim if that child was conceived using fertility procedures administered by a licensed physician.

The bill has to be read in conjunction with existing California statutes on parentage. Notably, California Family Code Section 7611 dictates the circumstances under which a man is presumed to be the father of a child. Subsection (d) gives a man who "receives a child into his home and openly holds out the child as his natural child" parentage status. The intent behind this statute is to allow men to establish parentage regardless of biology when it is in the child's interest to do so because that man has treated the child as his own. Section 7611 does not place any limitation on who it is that may seek such an order. In fact, any man could seek parentage of any child if he can establish that he held the child out and received the child into his home.

Without the passage of SB 115, a conflicting statute, Family Code Section 7613(b), acts to prevent only one specific group of men from being declared the legal father: those that are biological the father of the children. The current state of the law makes an absurdity a reality: if a man donates sperm, and after the fact establishes a relationship with the child with the consent of the child's mother, that man is precluded from establishing legal parentage of his own child. At the same time, if the mother's next door neighbor who has no biological connection to the child establishes a relationship with the child and meets the requirements of Section 7611(d), he is permitted to establish legal parentage. This cannot be what the law intends.

The bill reconciles Sections 7611 and 7613 so that they are consistent. It places California in line with the status of the law in other states. For example, in Colorado, the Supreme Court recognized the problem which SB 115 seeks to address when it rendered its opinion in a case known as Interest of R.C. There, unmarried heterosexual individuals conceived a child using fertility treatments. The court recognized that the legislature had "not considered nor intended to affect the rights of known donors who gave semen to unmarried women for use in artificial insemination with the agreement that the donor would be the father of any child so conceived." The court stated that the father had a right to petition the court to determine whether he had established himself as the parent of the child that resulted. The reality is that unmarried individuals often intend to raise children together. The law should carry out that intent regardless of whether one party decides after the child is born that she has had a change of heart. We don't deny children of divorced parents relationships with both of their parents, and we shouldn't single out children brought into the world by unmarried parents using fertility treatments.

It is important to keep in mind the fact that it is only those men who establish a relationship with a child who would be permitted to seek parentage orders under SB 115. The only way that these men establish such a relationship is with the consent of the biological mother. If the mother does not wish to be faced with a co-parent it is in her power to prevent that from happening. She can either use sperm obtained from an anonymous donor who has waived his rights, or she can refuse to permit a relationship from being established in the first place. It is not the child who should be deprived of a relationship because the child's mother has changed her mind.

 

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