Recently, the California legislature amended the Family Law Code, so the legal provisions and benefits of paternity determinations may be available for members of the LGBT community who want to start families using methods of Assisted Reproduction Technology (ART).
ART methods allow a person to conceive a child from their genetic material using artificial means. The processes utilized in ART allows for the conception of a child in a laboratory setting beyond the biological processes that only sexual intercourse historically provided.
The primary methods of ART are in vitro fertilization (IVF) and gestational surrogacy. In vitro fertilization refers to the artificial process of combining the genetic material of one person with that of the other outside of a woman’s biological womb. Gestational surrogacy refers to the process where an embryo resulting from the IVF process is implanted into the womb of a woman who then caries it through pregnancy until delivery.
Although ART methods have been available for several years now, California law on paternity and parental rights of the same-sex spouse of the genetic parent of a child conceived using ART methods were somewhat incompatible until now.
Effective January 1, 2020, the provisions of the California Family Code will allow LGBT couples to establish legal parentage for children born as a result of ART technology.
Voluntary Declarations of Paternity
Until recently, the law for determining paternity was restricted by traditional familial roles using sex-based labels such as “mother” and “father.” Specifically, California Family Code § 7573 allowed the paternity of the child to be established via a “voluntary declaration of paternity”:
“…[A] completed voluntary declaration of paternity, as described in Section 7574, that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support.”
Under California Family Code § 7574, a voluntary declaration of paternity involved a California Department of Child Support Services (DSS) form with the following information:
- “The name and the signature of the mother.
- The name and the signature of the father.
- The name of the child.
- The date of birth of the child.
- A statement by the mother that she has read and understands the written materials described in Section 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity.
- A statement by the father that he has read and understands the written materials described in Section 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity.
- The name and the signature of the person who witnesses the signing of the declaration by the mother and the father.”
Voluntary Declarations of Parentage
Beginning on January 1, 2020, the following individuals can sign what will now be called a “voluntary declaration of parentage”:
- “An unmarried woman who gave birth to the child and another person who is a genetic parent.
- A married or unmarried woman who gave birth to the child and another person who is a parent [having consented to ART conception using donated genetic material] of a child conceived through assisted reproduction.”
Take, for example, a lesbian couple who uses IVF to combine the genetic material of one partner with a donor’s sperm and implants the resulting embryo in the womb of the other partner who serves as a gestational surrogate. Under the revised provisions of the California Family Code, they can use a voluntary declaration of parentage so both have parental rights in connection to the child.
Furthermore, the language for California Family Code § 7574 has been updated to remove gender-specific pronouns, substituted by gender-neutral pronouns. Moreover, Section 7574 revises the acknowledgments to focus on an individual's status as the child’s “genetic parent” rather than “biological father.”
Contact Hanson, Gorian, Bradford & Hanich
If you have a question about how the upcoming changes to California’s parentage law may affect you, you should consult an experienced family lawyer from Hanson, Gorian, Bradford & Hanich. Our legal team has the experience and sophisticated understanding of California family law to provide you with quality legal advice and advocacy.
Call Hanson, Gorian, Bradford & Hanich at (951) 506-6654 or contact our office online to explore your legal rights and interests.