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SPONSOR: |
Komadina |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Genetic Testing for Paternity |
SB |
824 |
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ANALYST: |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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Indeterminate See Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Duplicates: SB 851
Responses
Received From
Department
of Health (DOH)
Administrative
Office of the Courts (AOC)
Attorney
General Office (AGO)
Human
Services Department (HSD)
SUMMARY
Synopsis
of Bill
Senate Bill 824 amends the Uniform Parentage Act by adding a new section to require genetic testing for named fathers of children born out of wedlock, provide for a genetic testing waiver, and provide exceptions to the right to genetic testing. SB 824 also would make critical amendments to Article 14 of the Vital Statistics Act.
SB 824 would direct unmarried putative fathers to submit to genetic testing prior to submission of an Acknowledgement of Paternity statement. SB 824 would direct married presumed fathers to submit an Acknowledgement of Paternity statement and sign a “genetic testing waiver”. When a waiver is submitted, an acknowledgment paternity could not be challenged in court after two years of submission of waiver.
Significant
Issues
Section 1: The Act amends
Section 24-14-13 NMSA to provide that if the mother of a child born alive is
not married at the time of birth, the named father shall submit to a genetic
test to determine paternity. The Act
provides further that at or before the birth of a child to an unmarried woman,
the person in charge of the institution, a designated representative, the
attending physician or midwife shall provide written information to the mother
and father or named father regarding the requirement of having the child’s
paternity established by genetic testing.
Section
3: The Act amends Section 40-11-5 NMSA to provide that a man shall
be presumed to be the natural father of a child if certain conditions are
met. Exceptions are made to this presumption
when the child is born out of wedlock and genetic testing is performed.
Section
4: The Act provides that when a genetic test is performed
when a child is born out of wedlock, the named father’s genetic test results
shall be compared to the child’s genetic test results to confirm
paternity. The Act further provides that
an acknowledgment of paternity form or a signed voluntary acknowledgment of
paternity shall have no legal effect if the genetic testing results prove that
the named father of a child born out of wedlock is not the natural father of
the child.
Section
5: The Act provides that an acknowledgment of paternity form
shall contain a separate genetic testing waiver attachment that shall be
presented to all presumed fathers of children born in wedlock. A presumed father who signs both the
paternity form and the testing waiver shall, after two years from the date of
signing both forms, forfeit his right to challenge paternity. These provisions shall not apply when a child
born in wedlock has been conceived as result of artificial insemination or when
the woman, upon written and signed consent of her husband, is impregnated with
semen donated by a man not her husband.
Section
6: The Act provides that prior to the issuance of a child
support order against a named father of a child born out of wedlock who has not
signed an acknowledgment of paternity form, the court shall order the named
father to submit to genetic testing to determine paternity. The right to have genetic testing performed
shall not apply if:
Section
7: The Act provides that that the department of health shall
work with the appropriate federal agencies to determine how much of the genetic
testing provided for in this Act may be reimbursed pursuant to the existing
federal government testing reimbursement rules.
HSD
is concerned that if SB 824 is enacted, it would place the Human Services
Department (HSD) in jeopardy of loosing federal funds for both the child
support program and the Temporary Assistance For Needy Families (TANF) program
by placing the state out of compliance with its IV-D State Plan and the
provisions of federal law requiring procedures for the voluntary
acknowledgement of paternity found in 42 USC Sec. 454(20)(A) implemented by 42
USC 666(a)(5)(C).
PERFORMANCE
IMPLICATIONS
HSD states that the department’s ability to meet
the federal paternity establishment performance measure, upon which both
federal incentives and penalties are based, would be jeopardized by making it
more difficult to obtain a paternity when the parents have voluntarily
acknowledged paternity.
FISCAL IMPLICATIONS
HSD
expresses concern that the federal government would impose penalties on the
TANF and/or Child Support programs. NM
receives $117,000.0 for the TANF program and $22,000.0 for the Child Support
programs.
The costs
associated with genetic testing range from $400.00 per test. SB 824 would require the putative father to
pay for the genetic testing. New Mexico
Statistics show that fathers of 12.5% of births to unwed mothers are 18 years
of age and under. So potentially 293 fathers per year 18 years of age and under would have
to pay for this testing. The DOH
indicates that the bill will jeopardize the collection of some of the most
requested vital statistics data, those relating
to teen births. A father’s decision to
incur these costs will impact their decision to complete an acknowledgment of
paternity for their child and would decrease the number of father’s assuming
responsibility. DOH says that SB 824 may
also have the unintended consequence of increasing the number of abortions to
this age group.
SB 824 has
fiscal implications to NMVRHS, DOH and the Human Services Department. Current
Acknowledgment of Paternity statements would have to be drafted to incorporate
information on genetic testing and also, include a new form for “genetic
testing waiver”. These forms would have
to be prepared both in English and in Spanish. New Mexico Vital Records spends
about $25,000 annually with the current form.
Under these amendments to Article 11 and Article 14, potentially may
escalate spending to over $100,000 annually.
Additional funds will be required
as a result of changes to operating system and electronic birth
registration databases to capture the additional information.
This new type
of reporting may also seriously impact funding for Medicaid paid births.
ADMINISTRATIVE IMPLICATIONS
The
AOC notes that because a named father of a child born out of wedlock is
required to submit to a genetic test to determine paternity, there may be fewer
actions to enforce the rights of custody and visitation, thus freeing up
judicial resources.
SB 824 significantly would change the manner in which the Bureau of Vital Records, Hospital Facilities and midwives have been reporting Acknowledgment of Paternity.
DOH
would need two additional FTE to process follow-up in obtaining acknowledgment affidavits,
provide additional training to internal and external staff, registration sites
and midwives. General Services may be required to construct a “private”
screening area for explaining “waiver”.
Another layer of effort would be required to obtain
a paternity where both parents acknowledge paternity. This would impose an additional burden on the
hospitals, DOH’s Bureau of Vital Records, the courts, and the HSD’s Child
Support Enforcement Division.
Section
1 Item G directs that if a married mother and her husband agree that he is not
the father, a putative father may file an acknowledgment of paternity
affidavit. However, this section does
give mention of a waiver of genetic testing requirements. This section is
inconsistent with 40-11-25, Page 10 Section A, “The acknowledgment of paternity
shall contain a separate genetic testing waiver attachment that shall be
presented to all presumed fathers of child born in wedlock”. These items
are not mentioned in Section G, providing inconsistencies with the testing
requirements imposed to an unmarried mother.
SB 824 would require a husband (of a women with a child born in wedlock) to complete an Acknowledgment of Paternity form and complete a “genetic testing waiver”. This matter is of concern to DOH in that it has serious consequences as it would direct the medical records clerk or vital records clerk to take the presumed father aside in private and explain the meaning of the form. DOH states that this may imply to the husband that he may or may not be the biological father. Such an implication may cause a disturbance, which the clerk is not trained to handle. Vital Records does not have a private screening area for customers. Requirements of a “genetic testing waiver” may put staff at risk of harm.
OTHER SUBSTANTIVE ISSUES
Births must
be reported to the State of
DOH, explains
that an average of 10,000 Acknowledgement of Paternity affidavits are filed annually. SB 824 assumes that acknowledgment of
paternity is only determined at the hospital when in fact 1/3 of
acknowledgments of paternities are submitted directly to the NMVRHS. Furthermore,
BD/njw