Table of Contents

Research by Christie Branson

Statutory Parental rights in CA generally

Case law involving Surrogate Mothers and interpretation of presumptions

Artificial Insemination

Common Law Doctrines that may help parents claiming to have some right with regards to a child

Custody

Intestate Succession

Research by Susan Hutter

Congressional Testimony on Gene Therapy Research:

BANNING FEDERAL FUNDS FOR HUMAN CLONING RESEARCH

CLONING Statement by House Majority Leader Dick Armey.

Links to Law Review Articles:

Legal Research by Rich Seifert on cloning and other assisted reproductive technologies.

Legal Research by Heather Burns on sperm and egg donors and host mothers.

Law relevant to Reproductive Technologies

by Christie Branson

Modern technology permits children to be born by involving more than two people. With these technologies there are several options:

The father can be (1) the supplier of the genetic material, (2) the husband of the supplier of the female genetic material, or (3) the husband of the woman who gestates the child. The mother could be (1) the supplier of the female genetic material, (2) the wife of the man who supplies the male genetic material, (3) the woman who gestates the child even though this woman did not supply any genetic material.

Statutory Parental rights in CA generally (I did a general overview)

The parent-child relationship extends equally to every child and to every parent regardless of the marital status of the parent. Cal. Fam. Code §7602. Oddly enough this definition is only defining the relationship for support and visitation, not descent.

There is a presumption that a child of a wife co-habitating w/ the husband is the child of the husband .Cal. Fam. Code §7540. A presumption of paternity is given if the father receives the child into his home and openly holds out the child as his natural child. Cal Fam Code §7611

Blood tests may be ordered to determine paternity and over ride presumptions, except when the child was conceived by a surgical procedure (IVF) and the husband consented. Cal. Fam. Code §7541.

Case law involving Surrogate Mothers and interpretation of presumptions:

In re Marriage of Moschetta (1994, 4th Dist) 25 Cal App 4th 1218, 30 Cal Rptr 2d 893. This case found that in a traditional surrogacy, the husband and the biological mother (not the husband's wife) were the legal parents of the child. Under Fam. Code, § 7541(a) genetic parenthood established by blood tests overcomes a presumption Also, it was undisputed that the wife was sterile, and Fam. Code, § 7540, only applies where the other spouse is not sterile. Although under Fam. Code, § 7611(d), a person who receives a child into the home and openly holds out the child as natural is presumed to be the natural parent, the wife never held the child out as her natural child. Under the Uniform Parentage Act (of which Ca has adopted), parentage was easily resolved in favor of the biological mother, who did not consent to adoption pursuant to Fam. Code, § 8814.

Where a surrogate mother was carrying an embryo created by anonymous parents, and neither the couple contracting for the child nor the surrogate mother were genetically related to the child, the couple were deemed the child's parents. In re Marriage of Buzzanca (1998) 61 Cal. App. 4th 1410, 1421, 1428.

Is a surrogate contract valid?

In Johnson v. Calvert, the CA Supreme Court upheld the basic validity and enforceability of surrogacy contracts although many think these contracts violate public policy. Johnson v. Calvert (1993) 5 Cal. 4th 84, 95. The court refused to acknowledge two mothers and resulted in determining who the legal mother was from who intended to rear the child. In Re Baby M, 542 A2d 52 (N.J. Super. Ct. Ch. Div. 1988) had a different result, finding a surrogate agreement against public policy.

Artificial Insemination

If a woman is artificially inseminated with the semen of a man who is not her husband, her husband is treated in law as the natural father of the child thereby conceived. Fam. Code § 7613(a). The artificial insemination must have been conducted under the supervision of a licensed physician and with the consent of the woman's husband. The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated as if he were not the natural father of the child. Fam. Code § 7613. The woman just needs to prove she gave birth to be the legal mother.

Common Law Doctrines that may help parents claiming to have some right with regards to a child

No California statute authorizes a general proceeding by which any non-parent can obtain parental rights, such as custody or visitation. Curiale v. Reagan (1990) 222 Cal. App. 3d 1597 (no procedure by which a lesbian partner of a biological mother can obtain custody of or visitation with a child). In loco parentis (in place of parent) is a common-law doctrine that has been historically applied in some contexts to impose certain parental obligations and confer certain parental benefits on persons other than parents. Nancy S. v. Michele G. (1991) 228 Cal. App. 3d 831. The term in loco parentis refers to any person who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formalities necessary to the establishment of a legal relationship of parent and child. It embodies the two ideas of assuming the parental status and discharging the parental duties.

Some cases have stated or implied that one standing in loco parentis is entitled to all the rights of a parent. Trudell v. Leatherby (1931) 212 Ca. 678. However, courts have not been willing to apply this doctrine because modern courts have generally been unwilling to broaden the meaning of "parent" in a statute unless clearly intended by the Legislature. In re Jodi B. (1991) 227 Cal. App. 3d 1322.

A de facto parent is a person who has assumed, for a substantial period and on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs. This is a foster parent; for example. In re B.G. (1974) 11 Cal. 3d 679. As with in loco parentis, there has been a judicial reluctance to extend de facto parentage into other areas. Nancy S. 228 Cal. App. 3d 831. There is no procedure by which one can be declared a de facto parent, thereby becoming entitled to all of the rights and obligations of the parent-child relationship.

California courts have rejected concepts of "equitable parentage" and "functional parenthood." Nancy S. 228 Cal. App. 3d 831.

While courts have been unwilling to expand the scope of parentage beyond what is contained in the statutes, the area of the law is exceedingly ripe for change, and practitioners should not assume that the current authorities will survive challenge in the future. Nontraditional situations, such as in vitro fertilization, surrogate parenting, artificial insemination, gay and lesbian adoptions, and successive relationships in which a stepparent is more a parent in fact than the biological parent, are becoming more prevalent and accepted. When coupled with the policy that the custody be viewed from the perspective of the child's best interests, it is exceedingly artificial not to recognize de facto parents.

Adoption is probably the best way to solve any of these problems arising because of presumptions, the only problem is getting consent from the biological parent(s).

Custody

A parent's interest in the custody of his or her children within the protection of the federal due-process and equal-protection clauses. This constitutional right underlies the parental preference doctrine, found in Family Code Section 3040(a)(1) which gives first preference to parents over non-parents in determining the custody of a child.

The right of custody has two components; legal custody and physical custody. Legal custody refers to the right and the responsibility to make the decisions relating to the health, education, and welfare of the child. Fam. Code §§ 3033, 3006. Physical custody refers to with whom the child actually resides. Fam. Code § 3007.

The court's permanent custody order is made according to the child's best interests despite a different temporary order or a stipulation of the parties. In re Marriage of Lewin (1986) 186 Cal. App. 3d 1482.

Intestate Succession

The CA probate code considers children born out of wedlock differently than those born in wedlock. Generally, they are still considered kids of the natural parents under Cal probate §6450(a). When these kids want to inherit from their nonmarital parents, if its mom they want to inherit from, they need to show she gave birth. If it's the dad they want to inherit from, they need the following:

1. Rebuttable presumption of paternity under family code.

2. Ct judgment of paternity during dad's lifetime AND

3. Paternity is established by clear and convincing evidence that dad has held kid out as his own.

When parents want to inherit from nonmarital kids it is generally not allowed unless a parent or relative of parent acknowledged child AND a parent or a relative of parent contributed to support or care of child. Cal. Probate §6452

A child whose paternity is determined by the 'married presumption' cannot inherit by intestacy from a man who (rather than the mother's husband) is alleged to be the actual biological father of the child. Estate of Cornelious (1984) 35 Cal. 3d 461, 464-467.

Susan Hutter

Legal Research

Congressional Testimony on Gene Therapy Research:

5/24/00 Cong. Testimony (Pg. Unavail. Online), 2000 WL 19304373 Congressional Testimony by Federal Document Clearing House GENE THERAPY TEXT:

Testimony of Lisa Raines Senior Vice President, Genzyme Corporation Before the Committee on Health, Education, Labor and Pensions Subcommittee.

Several months ago, the press reported that NIH had determined that over 600 serious adverse events (SAEs) had occurred in gene therapy trials and that the vast majority of these were not reported to NIH in a timely fashion. That report led to serious concerns about investigator compliance with reporting requirements, as well as the underlying safety of adenoviral vectors. It led to requests for raw data, and the subsequent release by the NIH of raw, nanalyzed numbers - and of the report forms themselves. The end result was that the public was presented with a very different picture than the one described in subsequent communications with the National Bioethics; Advisory Commission (NBAC), the Recombinant DNA Advisory Committee (RAC), and this Committee.

For instance, while its early report of 600+ (and, later, 900+) SAEs made it sound like gene therapy was a dangerous enterprise, NIH ultimately concluded that 91 % of these adverse events were unrelated to treatment. Furthermore, NIH and FDA have also determined that every SAE that must be promptly reported to FDA was, indeed, so reported.

This information should serve to reassure the public about both the safety of gene therapy studies and the universal nature of compliance with FDA reporting requirements. Unfortunately, it has been months since NIH and FDA performed this analysis, and it has still not been published.

We therefore suggest that the HHS should immediately prepare a written report describing the number and nature of SAE reports that have been received by NIH and/or FDA. Specifically, this report should state how many NIH-reported -SAEs were expected to occur as a result of the progression of the patients illness and how many were unexpected. The report should further indicate how many of the unexpected and related SAEs - which the law requires to be promptly reported to the FDA - were indeed reported in accordance with this requirement. The report should provide an analysis of how many of these unexpected adverse events were possibly or probably caused by the use of a -gene therapy product, as well as the.-number of, such product-caused events that, resulted in death.

While it is certainly the prerogative of the Congress to legislate, gene therapy is an area of emerging science and is one that lends itself far more productively to vigorous and continuous oversight. The fact is, as you know far better than I, that legislation is difficult and time-consuming to change, and the process was designed that way for sound and appropriate reasons.Policies and procedures that affect an evolving technology such as gene therapy need to be flexible enough to evolve with the science.

7/22/97 Cong. Testimony (Pg. Unavail. Online), 1997 WL 11235151 Congressional Testimony by Federal Document Clearing House

BANNING FEDERAL FUNDS FOR HUMAN CLONING RESEARCH

TEXT: STATEMENT OF LESTER M. CRAWFORD, D. V.M., Ph.D.

HEARING ON HUMAN CLONING AND RELATED ISSUES, July 22, 1997
First, attempts to create a human child using the new cloning technology of somatic cell nuclear transfer should not be permitted by anyone in the public or private sector, either in the laboratory or in a clinical setting. This prohibition is recommended not only because the technique currently is medically unsafe to use in humans, but also because there are moral and ethical concerns about this prospect that will likely continue to be deliberated and reviewed well into the future.

Next, the use of somatic cell nuclear transfer in research on cloning animals should continue. This type of research is both acceptable and beneficial to the public. Existing animal welfare laws and regulations, including review by institution-based animal protection committees, are sufficient to address our concerns about animal
research.

Likewise, additional limitations should not be placed upon the cloning of human cells and DNA sequences using somatic cell nuclear transfer. These research efforts do not raise the same scientific and ethical issues that surround the possible creation of an entire human being in the laboratory.

Great progress in medicine and biotechnology is possible using new genetic techniques without entering the realm of cloning human beings. Genetically engineered mice have already revolutionized our ability to study devastating diseases such as breast cancer and immune system deficiency. Even better animal models for human disease, aiding research into new or improved therapies, are an exciting prospect stemming from the latest cloning methods.

The most immediate benefit is likely to be the faster, more efficient production of therapeutic human proteins in the milk of transgenic farm animal species. These drug products of biotechnology have already aided persons with blood deficiencies and serious infections among other conditions. In the longer-term future, cloned animals might become a safe source of organs for transplantation in patients with heart, kidney or liver failure.

2/12/98 Cong. Testimony (Pg. Unavail. Online), 1998 WL 8992054 Congressional Testimony by Federal Document Clearing House CLONING

TEXT: Office of the House Majority Leader Statement by House Majority Leader Dick Armey.

Cloning humans is wrong. It should be banned permanently, without loopholes, throughout the United States. We can ban human cloning without undermining promising and ethical health research.

History provides us with too many examples of unethical research on human beings, in the name of science and progress. One need not dispute that benefits to some might result. But is it worth the cost in terms of  human life and human dignity? In the case of cloning humans, the answer is no.

Indeed, every credible player in this debate claims to Oppose cloning humans. Then some of them add the word "but." For example, liberals like Senator Kennedy and President Clinton solemnly assure us they oppose "cloning a human child," but by this, they mean that they want to ban the implantation of a cloned human embryo into a woman's uterus--apparently a chimpanzee's uterus would be acceptable--and then only for the next ten years. After which, it's open season. So you can make as many clones as you like, as long as you kill them. Obviously, these people are not sincere. They want to allow human cloning without appearing to do so.

And then there are the biotech and pharmaceutical industries. They too say they do not want to use cloning to create human embryos, but they want to do "promising stem-cell research." To which I respond: Fine. But let us be clear. The intentional destruction of living human embryos is unethical and unacceptable. If an embryo is dividing and developing, it is a member of the human family and deserves our respect. And destroying it is repugnant to the American public. The real question before us, then, is: Is there a way to do stem-cell research without destroying human embryos?  Pending the resolution of that question, I think we have no choice but to agree that human cloning should be banned, with no "buts."

Links to Law Review Articles:

Colorado Journal of International Environmental Law and Policy Winter 2001 Notes and Comments REGULATING HUMAN CLONING WITHIN AN ENVIRONMENTAL HUMAN RIGHTS FRAMEWORK Andrea Wang. 12 Colo. J. Int'l Envtl. L. & Pol'y 165

NYU Journal of Legislation and Public Policy 2000-2001 Legislating Morality: The Debate Over Human Cloning TO CLONE OR NOT TO CLONE E. Donald Shapiro, Jennifer Long, Rebecca Gideon. 4 NYU J. Legis. & Pub. Pol'y 23

NYU Journal of Legislation and Public Policy 2000-2001 Legislating Morality: The Debate Over Human Cloning VIEWS OF CLONING FROM A PHYSICIAN'S PERSPECTIVE Charles N. Aswad, M.D. 8. 4 NYU J. Legis. & Pub. Pol'y 23

Pepperdine Law Review 1991 Comment BEYOND ABORTION: HUMAN GENETICS AND THE NEW EUGENICS John R. Harding, Jr. 1. 18 Pepp. L. Rev. 471

State Statutes:

Cal. Health & Safety Code § 24185 (West 2000).
(a) No person shall clone a human being.
(b) No person shall purchase or sell an ovum, zygote, embryo, or fetus for the purpose of cloning a human being.
(c) For purposes of this section, "clone" means the practice of creating or attempting to create a human being by transferring the nucleus from a human cell from whatever source into a human egg cell from which the nucleus has been removed for the purpose of, or to implant, the resulting product to initiate a pregnancy that could result in the birth of a human being.
M.C.L.A. 333.16274