If you want to show your support for Jason Patric and ask the legislature to support a correction in the legislation that was intended by the author, Senator Hill, you can email to the Chairman of the Judiciary committee at [email protected]. Constitutional Law Professor @Erwin Chemerinsky drafted a letter in support of correcting the language on the statute at issue in the @Jason Patric case. Please contact Honorable Robert Wieckowski if you believe that the legislation should be corrected for those men who have already been established fathers in the lives of their child. Email: [email protected] Honorable Robert Wieckowski Chair, Assembly Judiciary Committee State Capitol P.O. Box 942849 Sacramento, California 94249-0025 Re: Senate Bill 115 Dear Chairman Wieckowski: As a professor of Constitutional law, I write in support of pending Senate Bill 115. The law is necessary in order to address a loophole that risks the loss of the parent-child relationship to a certain class of individuals who intentionally brought about the birth of a child with their unmarried partner. Our United States Supreme Court has held that the parent-child relationship is one which is afforded a special status, and one which cannot be lightly infringed upon. For example, in Lehr v. Robertson¸463 U.S. 248, the court held that when an unwed father demonstrated a commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, he was entitled to substantial protection under the Due Process clause of the United States Constitution. To quote the court: “ “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where his child’s best interests lie.” Id. at 262. In this day and age, where so many children are born outside of wedlock, and where people often have to resort to assisted reproduction in order to have children, it is important that the law be written in a way to insure that the parent-child relationship is not infringed upon because of a mere technicality in the law, or due to some oversight on the part of the legislature. There are two competing California Family Code statutes at play at present. Family Code Section 7611 provides that any man can establish parentage of a child if he “receives the child into his home and openly holds the child out as his natural child”. The intent of this statute was to allow a means of establishing parentage where there was no biological connection to the child, and is in the keeping with the public policy that espouses that children are better off when they have legal parents than when they do not. Under Family Code §7613(b), as you are aware, a man who provides sperm to a licensed physician for the purposes of insemination in his unmarried partner, is barred from asserting parentage of that child. While the legislature saw fit to amend the statute in 2011 to include the language “unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child”, this statute continues to serve as a bar to a parent who brings about the conception of a child through assisted reproduction with an unmarried partner, particularly where the parties did not execute any separate documents concerning parentage prior to using assisted reproduction, other than the consent forms. As you are well aware, Chairman Wieckowski, the law is an evolving body which needs to change in order to address the needs and goals of society over time. While it was likely not foreseeable at the time of the initial enactment of §7613 or its predecessor statutes, that the code section would act as a bar to the biological father seeking parentage where it was intended all along that he be the legal parent, the realities of societal norms and medical technology today make it quite foreseeable that unmarried individuals might choose to use assisted reproductive technology to have a child. The existing statute allows the child’s mother to simply cut off the relationship between father and child if she wishes to do so, by the language of the statute. I do not believe that this could ever have been the intent of the legislature. The proposed revision to §7613(b) that is embodied in Senate Bill 115 address this problem. It allows the biological father who used assisted reproductive technology to bring about the birth of his own child with an unmarried partner to seek parentage, provided that he has held the child out as his own and received the child into his home. The bill must be implemented to protect the rights of fathers in this situation, a relationship which has been accorded special status in the law. I am aware that there are claims by those opposed to the bill that this bill will allow sperm donors in the traditional sense to invade the parent-child relationship by seeking to establish parentage pursuant to the terms of §7611(d). I believe that those claims are without merit. In order to establish parentage under 7611(d) the sperm donor would have to establish in court that he held the child out as his own and received the child into his home. These facts would only occur through the consensual conduct of the mother. A donor who provides sperm through a tissue bank would waive his rights to parentage upon making the donation. A couple choosing to use a known donor, who did not intend to have that donor afforded any rights would also procure a waiver prior to accepting the donation. The passage of this bill is of paramount importance for the protection of not only fathers, but also of children. I urge you to support passage of Senate Bill 115 for the sake of those individuals. Very Truly Yours Prof. Erwin Chemerinsky Dean of the School of Law University of California, Irvine
Posted on: Thu, 08 Aug 2013 20:27:42 +0000
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