Sperm Donor Bill on Hold

by Seth Hemmelgarn
Monday Aug 19, 2013

A state bill meant to protect some sperm donors' rights has raised concerns about consequences for same-sex couples, especially lesbians, and is on hold.

On Tuesday, August 13, the Assembly Judiciary Committee voted 5-2 to hold Senate Bill 115, authored by Senator Jerry Hill (D-San Mateo), and not release it to the full chamber for a vote.

Hill's proposal would amend state law to clarify that the rules governing the treatment of a man who donates his semen for use in artificial insemination or in vitro fertilization of a woman other than his wife "was never intended to preclude the opportunity to prove the existence of the presumed father and child relationship" pursuant to other relevant sections of the state's family code, according to a summary on Hill's website.

"The bill is not dead," said gay Assemblyman Rich Gordon (D-Menlo Park), who's not on the committee but chairs the California Legislative LGBT Caucus. "We are in a two-year legislative cycle. Senator Hill could attempt to move the bill" and possibly "get a vote on floor" in January, said Gordon.

He said he didn't know whether Hill would make any changes to the bill to get it out of the committee, which he could do in the interim period from mid-September until January. A spokesman for Hill didn't respond to a request for comment.

In a June 27 letter, gay Assemblyman Tom Ammiano (D-San Francisco) asked Assemblyman Bob Wieckowski (D-Fremont), who is chair of the judiciary committee, to postpone a hearing on the bill.

"The true policy intent appears to really be focused on what should happen with a donor [who] changes his mind after the conceived child is born and wants parentage rights against the consent of the legal mother and possibly in defiance of the agreement made prior to conception," Ammiano wrote.

He said what he found "most troubling" was that SB 115 "is being pursued by the losing party in a family law dispute that is now going through the normal appellate process. Given that posture alone, I believe it is inappropriate for the Legislature to weigh in now on an ongoing case - as the courts should be given the chance to get this right through the judicial process."

Ammiano was referring to a lawsuit brought by actor Jason Patric, who's in a custody battle with his ex-girlfriend over the boy to whom she gave birth. Patric donated the sperm through a medical procedure, according to news reports.

In his letter, Ammiano also warned of "unintended consequences that could harm parents" and children and raised numerous questions about the bill.

"Does this policy affect the thousands of single parent, same-sex parent and infertile families by placing a higher status on biological connection to a child conceived through alternative reproductive technology (ART) over the legal status of the non-biological legal parent?" he asked.

As for how he would vote, Gordon, whom Ammiano copied on his letter, said, "I had not yet decided on whether I could support this specific measure," but "I do think there needs to be some ability" for the "small number of relationships" where two people have agreed to co-parent but haven't signed the required legal documents to at least have their agreements considered in court.

"I'm not sure Mr. Hill has quite hit the mark, but I think there's a core of what he's attempting to do that does make some sense," said Gordon.

Opposing sides

Alice Crisci, government affairs liaison for the California Cryobank, opposes the bill.

"We conduct the vast majority of sperm donor screenings in California, and we are responsible for helping to create tens of thousands of families that this bill will impact," said Crisci in an interview last week.

"This bill seeks to basically give any donor at any time the right to seek parentage," she said. She's also concerned about disruption to "thousands of families in California who've been living under a potentially false sense of protections with the existing law," since the bill's backers are "seeking to make it retroactive."

Crisci said "about 60 percent" of the bank's business is LGBT.

"One of our biggest class of parents we're concerned about is lesbian couples, because if the non-biological mom has not gone through an adoption of the child, her parental rights will be trumped simply by the biology of the sperm donor," she said.

She added, "Not every lesbian couple has gone through the adoption process, because it's expensive."

Crisci said her business "does not believe the Legislature should be moving this bill quickly through the system in the middle of a highly contentious custody case. We should not be acting like an appellant court."

On the other side, the National Center for Lesbian Rights has been supportive of the bill.

"This is a really limited bill that is only going to address situations where a child truly has a parental relationship with someone," said Cathy Sakimura, family law director and supervising attorney at NCLR.

But in an interview before Tuesday's committee vote, Sakimura expressed support for delaying the bill.

"We do know that there are a lot of concerns that people have addressed, and we think there should be more discussion on this bill and the best way to address this issue." However, she added, "We also think that courts do need to have the flexibility to protect the families that children actually have."

The statewide LGBT lobbying group Equality California has also been supportive of SB 115, but in an email after Tuesday's vote, EQCA Executive Director John O'Connor sought some distance from it.

"Equality California has taken a support position on SB115, and while we stand by that support of the intent of the bill, it did not originate with us, nor did we ever lobby for its passage," O'Connor said. "Given the range of concerns that have emerged, we are supportive of a two-year timeline to adequately allow all stakeholders to come together and review the implications of the bill thoroughly."

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