California Governor Jerry Brown (D) signed legislation Friday that updates state laws so they offer the same protections to all parents and their children, including same-sex and transgender parents. Read on for details—and importantly, what this means for second-parent adoptions.
The new law, AB 2684, authored by Assemblymember Richard Bloom (D-Santa Monica), updates California’s Uniform Parentage Act “to provide equal treatment to same-sex parents, transgender parents, and their children.”
One key component of AB 2684 is that it simplifies the process for nonbiological parents to establish parentage. Hospitals must now provide unmarried mothers and those who give birth to children conceived through assisted reproduction with a form that they can fill out along with the intended other parent to indicate parentage. Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights (NCLR), explained in an e-mail, that “It makes the voluntary declaration of paternity process—which allows genetic fathers to establish their parentage by signing a form at the hospital that has the force of a court order at no cost—available to parents of any gender who used ART [assisted reproductive technology] to conceive.”
At the same time, the new law will protect unmarried intended parents who didn’t sign a written consent, Sakimura said. Courts will be able to find that the other person was an intended parent even if their consent was only oral. (California law already says that a child born to married spouses of any gender who cohabited at time of conception and birth is considered a child of the marriage, and that a child born to an unmarried woman through ART with the written consent of another intended parent of any gender is considered to be the child of both people.)
The new law also updates genetic testing provisions, in particular to make them gender neutral and to enshrine in statute the existing case law that says genetic testing cannot be used to challenge a nonbiological parent’s parentage.
Additionally, the new law says that gamete (sperm and egg) banks must allow children conceived through donated sperm or eggs to receive nonidentifying medical information at any point (their parents could receive it if the children are minors), and if the donor agrees, to obtain personal identifying information at the child’s option after 18 years of age.
The legislation is based on the Uniform Parentage Act (UPA), a model law intended as a guide for state laws. The UPA is a creation of the Uniform Law Commission, which since 1892 “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” It was updated in 2017 to, among other things, “ensure the equal treatment of children born to same-sex couples,” to provide “a process for the establishment of parentage by those who claim to be de facto parents” (those who act as parents but who are not connected by biology or marriage), and to address “the right of children born through assisted reproductive technology to access medical and identifying information regarding any gamete providers.”
California is the third state to adopt a version of the 2017 UPA; the first was Washington, in 2017, followed by Vermont this past May. Unlike the first two states, California explicitly names transgender parents as one of the groups targeted for equal treatment under the law—though Sakimura notes that “transgender parents are included in the gender neutral language in all three states.”
Many of you may be wondering, however, what the new law means for second-parent adoptions, a long-standing means of securing legal ties between a child and nonbiological parent. Sakimura told me (my bold):
Yes, we do still recommend second parent adoptions or parentage judgments. The form signed at the hospital (which will not be available until 2020) should be recognized in other states, but we advise people to get court orders until more states have recognized this, as people are likely to face hostility in these early days of such laws.
At the same time, the law is a significant step forward. Sakimura explained:
We are proud to have worked on this legislation, which not only establishes key protections for LGBTQ parents and their children generally but particularly helps low-income parents who cannot afford to consult with an attorney and are less likely to have written agreements. We are grateful that the California Legislature and Governor Brown recognized the importance of these changes.
Hear, hear. Thanks to NCLR, Equality California, and everyone else who worked to pass this legislation.
