According to recent statistics from the Children's Defense Fund, a baby is born to an unmarried mother every 19 seconds in this country. Like all children, these babies are unable to vote, lobby, or speak for themselves. Accordingly, it becomes even more important that lawmakers, voters, and advocates ensure that our laws are tailored to protect the best interests of our children, and updated to reflect our changing family norms.
Thankfully, California State Senator Jerry Hill (D-San Mateo) is on the job, and has introduced protective, child-friendly legislation, SB 115, which passed out of the Senate with unanimous, bipartisan support, and is pending in the Assembly.
Senate Bill 115 is a simple bill that protects a child's ability to maintain a relationship with his or her father, if the child was conceived by artificial reproductive technology to unmarried parents who always intended to parent; did, in fact, serve as parents; and never waived their parental rights.
The bill is a narrow one: it only protects the relationship between children and their fathers when the father has assumed the role of his child's father, acted as his child's father, and helped raise and care for his child, with the mother's previous consent.
This bill recognizes that families are defined broadly today; that parents are not always married when they have children; that many parents use assisted reproductive technology to conceive; and that sometimes, romantic relationships deteriorate after children are born.
The need for SB 115 stems from an ambiguous provision in the California Family Code, which precludes men who use assisted reproductive technology from being considered the fathers of the children they helped conceive, absent a written agreement signed before conception. Senator Hill wrote that original provision two years ago, intending to protect women who use donated sperm to get pregnant, but don't want the donors involved in their children's lives. It was also intended to protect sperm donors, who are often anonymous and do not want to be held liable for child support.
Women and sperm donors, take note: these important protections remain intact under SB 115.
In SB 115, Senator Hill simply clarifies that his original law was never intended to deprive children of their fathers when their fathers always intended to parent, did, in fact, parent - with the mother's consent - and never waived their parental rights.
Senate Bill 115 gives no rights to a sperm donor who waived his parental rights and never acted as a parent to the child; nor does it render a sperm donor vulnerable to a paternity suit. Written waivers relinquishing parental rights remain valid and legally enforceable under this legislation, as they should.
Nor does Senate Bill 115 automatically award custody to anyone. It simply allows a man who never waived his rights, always intended to parent, and did parent his child the opportunity to go into court and prove to the court why he should be deemed a legal parent, and given the responsibilities of fatherhood, including child support obligations. The court will still have to evaluate the evidence and determine whether the man satisfies the heavy burden of proving parentage.
Loving, supportive, family bonds matter in a child's life, and involved, emotionally and physically devoted parents should not be wrested from their children because of a legal technicality subject to manipulation. For that reason, SB 115 has been endorsed by Human Rights Campaign, Equality California, California's Association of Certified Family Law Specialists, the National Center for Lesbian Rights, the Family Equality Council, and prominent constitutional law scholar and current and founding dean of the University of California, Irvine School of Law, Erwin Chemerinsky.
The small group of opponents who fear the bill will "open the door to litigation by sperm donors" and lead to "male dominance" misunderstand the legislation, and do a disservice to women and children. As a woman, an attorney, and a children's advocate, I am especially surprised by the California National Organization of Women, which opposes the legislation for illogical reasons that pit women against children, and seem to be based on reflexive, gender-based hostility and fear-mongering, more reminiscent of Tea Party extremism than a liberal organization that stands for women's rights.
If SB 115 threatened a woman's right to be a single mother, or undermined legally valid and contractually binding waivers, I would oppose it, too. But the bill does no such thing. Those who thoughtfully read the bill and look beyond the rhetoric will understand why women - and everyone who cares about children - should support SB 115 and urge its passage when it goes before the Assembly Judiciary Committee on August 13.
Too many children lack loving, supportive, stable caregivers in their lives. When our laws deprive our children of ongoing, loving relationships with the only parents they have ever known, we must all speak up on behalf of our children to preserve and protect those relationships.
Carol Chodroff is an attorney and children's rights advocate.