Despite important legal advances in the realm of civil rights for LGBT couples in the past few years since the Supreme Court’s ruling in the Obergefell v. Hodges case, members of the LGBT community were still denied essential protections in the context of parentage matters.
In an effort to rectify the inequities stemming from the application of outdated family code provisions in California, the California legislature enacted amendments to its version of the Uniform Parentage Act to ensure the equal application of California parentage law the members of the LGBT community. These laws were signed into law in 2018, with some changes taking effect in 2019 and some in 2020.
In particular, the changes concern the establishment of parentage through marriage, genetic testing, and voluntary declarations of parentage.
The Marital Presumption
Under California Family Code § 7540, a father’s parentage could be established by virtue of his status as the husband of the woman who gave birth to the child. Section 7540 provides that “the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”
The 2018 changes to California’s parentage law include more gender-neutral language to accommodate situations involving LGBT couples with children born using Assisted Reproduction Technology (ART). Methods of ART include in vitro fertilization and gestational surrogacy.
Starting January 1, 2019, California Family Code § 7540 reworks the conclusive marital presumption, which now reads:
- “Except as provided in Section 7541, the child of spouses who cohabited at the time of conception and birth is conclusively presumed to be a child of the marriage.
- The conclusive marital presumption in subdivision (a) does not apply if the court determines that the husband of the woman who gave birth was impotent or sterile at the time of conception and that the child was not conceived through assisted reproduction.”
Although the changes extend the protections of the marital presumption to lesbian couples where one woman is physiologically incapable of qualifying as a child’s second biological parent, there is a concern that men who do not qualify as the child’s second parent due to impotency or sterility cannot benefit from the presumption.
Until recently, the genetic relationship between a child and a parent could serve as the basis for determining parentage. Under the 2018 amendments, genetic testing cannot be used to challenge parentage in ART cases. These changes also came into effect on January 1, 2019, and may be brought by a person who qualifies as a “presumed parent” under California Family Code § 7611. The new provisions governing the use of genetic testing for the purposes of determining parentage can now be found in California Family Code §§ 7451 and 7551.
Voluntary Declarations of Parentage
Up until the recent changes to California’s Uniform Parentage Act, the ability to establish parentage through a voluntary declaration of both parents was restricted to unmarried birth mothers and the child’s genetic father.
Starting January 1, 2020, LGBT couples can submit a Voluntary Declaration of Parentage to establish a parent-child relationship with a child born from ART methods. However, the new amendments provide that Voluntary Declarations of Parentage are not supposed to resolve parentage disputes involving competing claims of parentage. Instead, the amendments are intended to establish parentage in uncontested cases where legal parentage was uncertain.
Under California Family Code § 7573.5, a Voluntary Declaration of Parentage is not valid in the following situations:
- A person—not the woman who gave birth—who is a presumed parent signed the declaration
- A court has already rendered judgment as to the child’s parentage
- There is a prior valid Voluntary Declaration of Parentage
- The child has a different parent who was a sperm or egg donor or a gestational surrogate
- Sperm or egg donor is trying to establish parentage through Voluntary Declaration of Parentage
- A sperm or egg donor is trying to establish parentage although the child was not conceived using ART
Consult Gille Kay Law Group, P.C. for More Information
If you have questions about how the recent changes to California’s parentage law may affect you, you should reach out to a member of our legal team at Gille Kay Law Group, P.C. Our legal team is ready to advise you about such issues so you can have a better understanding of your legal rights and interests as a parent.
To schedule an initial consultation about your case, call us at (626) 340-0955 or contact our office online today.