BILL NUMBER: AB 1217 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 6, 2012
AMENDED IN SENATE JUNE 11, 2012
AMENDED IN SENATE APRIL 9, 2012
AMENDED IN SENATE JUNE 20, 2011
AMENDED IN ASSEMBLY MAY 9, 2011
AMENDED IN ASSEMBLY APRIL 26, 2011
AMENDED IN ASSEMBLY APRIL 14, 2011
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2011
An act to amend Section 7960 of, to amend the heading of Part 7
(commencing with Section 7960) of Division 12 of, and to add Section
7962 to, the Family Code, relating to surrogacy agreements.
LEGISLATIVE COUNSEL'S DIGEST
AB 1217, as amended, Fuentes. Surrogacy agreements.
The Uniform Parentage Act defines the parent and child
relationship as the legal relationship existing between a child and
the child's parents, and governs proceedings to establish that
relationship. Existing law provides that a party to an assisted
reproduction agreement may bring an action under the Uniform
Parentage Act at any time to establish a parent and child
relationship consistent with the intent expressed in the agreement.
Existing law also regulates the practice of surrogacy facilitators in
assisted reproduction agreements, including surrogacy agreements.
This bill would require , when executing a surrogacy
agreement, a surrogate mother and the intended parent or
intended parents to be represented by separate independent counsel of
their choosing . Before the surrogate mother could begin
medication for assisted reproduction, the bill would require the
parties' counsel to review the surrogacy agreement and its
ramifications with the surrogate mother and the intended parent or
intended parents. The bill would require counsel for each party to
the surrogacy agreement to issue a statement to the treating
physician that the surrogacy agreement complies with Section 7962 of
the Family Code. The bill would require the surrogacy agreement to be
executed by the parties and notarized or otherwise witnessed, as
specified. The bill would provide specific requirements for where the
surrogacy agreement may be filed. The bill would provide that a
surrogacy agreement that meets the above requirements would be
presumptively valid. The bill would require, upon request by a party
to the surrogacy agreement, that the court seal all documents that
list the identities of the parties. Because this bill would require
the declarations accompanying the surrogacy agreement to be made
under penalty of perjury, the bill would expand the class of persons
who could be prosecuted for a crime, and thereby impose a
state-mandated local program. prior to executing an
assisted reproduction agreement for gestational carriers, as defined.
The bill also would require an assisted reproduction agreement for
gestational carriers to contain specified information. The bill would
require the assisted reproduction agreement for gestational carriers
to be executed by the parties and notarized or otherwise witnessed,
as specified. The bill would prohibit the parties to an assisted
reproduction agreement for gestational carriers from undergoing an
embryo transfer procedure or commencing injectable medication for
assisted reproduction until the assisted reproduction agreement for
gestational carriers has been fully executed pursuant to the
requirements of these provisions. The bill would permit an action to
establish the parent-child relationship to be filed before
the child's birth, and would specify where that action may be filed.
The bill would require the parties to the assisted reproduction
agreement for gestational carriers to attest, under penalty of pe
rjury, and to the best of their knowledge and belief, as
to their compliance with these provisions. By expanding the existing
crime of perjury, the bill would impose a state-mandated local
program. The bill would provide that an assisted reproduction
agreement for gestational carriers executed in accordance with these
provisions is presumptively valid. The bill would provide that the
assisted reproduction agreement for gestational carriers and related
documents are not open to inspection, except by the parties to the
proceeding and their attorneys and the State Department of Social
Services, except as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Part 7 (commencing with Section 7960) of
Division 12 of the Family Code is amended to read:
PART 7. SURROGACY FACILITATORS AND ASSISTED REPRODUCTION
AGREEMENTS FOR GESTATIONAL CARRIERS
SEC. 2. Section 7960 of the Family Code is amended to read:
7960. For purposes of this part, the following terms have the
following meanings:
(a) "Assisted reproduction agreement" has the same meaning as
defined in subdivision (b) of Section 7606.
(b) "Fund management agreement" means the agreement between the
intended parents and the surrogacy facilitator relating to the fee or
other valuable consideration for services rendered or that will be
rendered by the surrogacy facilitator.
(c) "Nonattorney surrogacy facilitator" means a surrogacy
practitioner who is not an attorney in good standing licensed to
practice law in this state.
(d) "Surrogacy facilitator" means a person or organization that
engages in either of the following activities:
(1) Advertising for the purpose of soliciting parties to an
assisted reproduction agreement or acting as an intermediary between
the parties to an assisted reproduction agreement.
(2) Charging a fee or other valuable consideration for services
rendered relating to an assisted reproduction agreement.
(e) "Surrogate" means a woman who bears and carries a child for
another through medically assisted reproduction and pursuant to a
written agreement, as set forth in Sections 7606 and 7962.
Within the definition of surrogate are two different and distinct
types:
(1) "Traditional surrogate" means a
woman who agrees to gestate an embryo, in which the woman is the
gamete donor and the embryo was created using the sperm of the
intended father or a donor arranged by the intended parent or
parents.
(2) " Gestational carrier
" means a woman who agrees to gestate an embryo that is
genetically unrelated to her on behalf of another person
or persons.
SEC. 3. Section 7962 is added to the Family Code, to read:
7962. (a) Prior An assisted reproduction
agreement for gestational carriers shall contain, but shall not be
limited to, all of the following information:
(1) The date on which the assisted reproduction agreement for
gestational carriers was executed.
(2) The persons from which the gametes originated.
(3) The identities of the intended parents.
(b) Prior to executing the
written surrogacy agreement assisted
reproduction agreement for gestational carriers , a surrogate
and the intended parent or intended parents shall be represented by
separate independent licensed attorneys of their choosing.
After reviewing the parties' surrogacy agreement and its
ramifications with their respective clients, each attorney
representing a party to the surrogacy agreement shall issue a written
statement to the treating physician in the assisted reproductive
undertaking that the agreement was executed in conformity with this
section. Providing this written statement shall not constitute a
waiver, under Section 912 of the Evidence Code, of the lawyer-client
privilege described in Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
(b)
(c) The surrogacy agreement
assisted reproduction agreement for gestational carriers
shall be executed by the parties and the signatures on the
surrogacy agreement assisted reproduction
agreement for gestational carriers shall be notarized or
witnessed by an equivalent method of affirmation as required in the
jurisdiction where the surrogacy agreement
assisted reproduction agreement for gestational carriers is
executed.
(c) A surrogate shall not undergo artificial insemination, an
embryo transfer procedure, or commence injectable medication in
preparation for an embryo transfer or artificial insemination for
assisted reproduction purposes until the requirements of subdivisions
(a) and (b) are met.
(d) To request a parent-child relationship, the surrogacy
agreement shall be lodged in the superior court where the child is
anticipated to be born, the county in which the intended parent or
intended parents reside, the county where the surrogate resides, or
the county where the surrogacy agreement is executed. The parties
shall attest, under penalty of perjury, and to the best of their
knowledge and belief, to the surrogacy agreement's compliance with
this section. Submitting this declaration shall not constitute a
waiver, under Section 912 of the Evidence Code, of the lawyer-client
privilege described in Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code.
(e) (1) A surrogacy agreement executed in accordance with this
section shall rebut any presumptions contained within Part 2
(commencing with Section 7540), subdivision (b) of Section 7610, and
Sections 7611 and 7613, as to the surrogate, her spouse, or partner
being a parent of the child or children.
(d) The parties to an assisted reproduction agreement for
gestational carriers shall not undergo an embryo transfer procedure,
or commence injectable medication in preparation for an embryo
transfer for assisted reproduction purposes, until the assisted
reproduction agreement for gestational carriers has been fully
executed as required by subdivisions (b) and (c) of this section.
(e) An action to establish the parent-child relationship between
the intended parent or parents and the child as to a child conceived
pursuant to an assisted reproduction agreement for gestational
carriers may be filed before the child's birth and may be filed in
the county where the child is anticipated to be born, the county
where the intended parent or intended parents reside, the county
where the surrogate resides, the county where the assisted
reproduction agreement for gestational carriers is executed, or the
county where medical procedures pursuant to the agreement are to be
performed. A copy of the assisted reproduction agreement for
gestational carriers shall be lodged in the court action filed for
the purpose of establishing the parent-child relationship. The
parties to the assisted reproduction agreement for gestational
carriers shall attest, under penalty of perjury, and to the best of
their knowledge and belief, as to the parties' compliance with this
section in entering into the assisted reproduction agreement for
gestational carriers. Submitting those declarations shall not
constitute a waiver, under Section 912 of the Evidence Code, of the
lawyer-client privilege described in Article 3 (commencing with
Section 950) of Chapter 4 of Division 8 of the Evidence Code.
(f) (1) A notarized assisted reproduction agreement for
gestational carriers signed by all the parties, with the attached
declarations of independent attorneys, and lodged with the superior
court in accordance with this section, shall rebut any presumptions
contained within Part 2 (commencing with Section 7540), subdivision
(b) of Section 7610, and Sections 7611 and 7613, as to the
gestational carrier surrogate, her spouse, or partner being a parent
of the child or children.
(2) Upon petition of any party to a properly executed surrogacy
agreement, the court shall issue a judgment or order establishing a
parent-child relationship, whether pursuant to Section 7630 or
otherwise. The judgment or order may be issued before or after the
child's or childrens' birth subject to the limitations of Section
7633. Subject to proof of compliance with this section, the judgment
or order shall establish the parent-child relationship of the
intended parent or intended parents identified in the surrogacy
agreement and shall establish that the surrogate, her spouse, or
partner is not a parent of, and has no parental rights or duties with
respect to, the child or children. The judgment or order shall
terminate any parental rights of the surrogate and her spouse or
partner without further hearing or evidence, unless the court or a
party to the surrogacy agreement assisted
reproduction agreement for gestational carriers has a good
faith, reasonable belief that the surrogacy agreement
assisted reproduction agreement for gestational
carriers or attorney declarations were not executed in
accordance with this section. Upon motion by a party to the
surrogacy agreement assisted reproduction agreement
for gestational carriers , the matter shall be scheduled for
hearing before a judgment or order is issued. Nothing in this section
shall be construed to prevent a court from finding and declaring
that the intended parent is or intended parents are the parent or
parents of the child where compliance with this section has not been
met; however, the court shall require sufficient proof entitling the
parties to the relief sought.
(f) Upon request by a party to a surrogacy agreement for a
petition to establish a parent-child relationship pursuant to this
section, the court shall order all pleadings and documents that list
the identities of the parties sealed. The request may be made
concurrently with the submission of a proposed judgment packet, or
upon ex parte application. Documents sealed pursuant to this section
shall only be unsealed upon petition to the court with good cause
shown.
(g) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition filed in the office of the clerk of the court
pursuant to this part shall not be open to inspection by any person
other than the parties to the proceeding and their attorneys and the
State Department of Social Services, except upon the written
authority of a judge of the superior court. A judge of the superior
court shall not authorize anyone to inspect the petition,
relinquishment or consent, agreement, order, report to the court from
any investigating agency, or power of attorney or deposition, or any
portion of those documents, except in exceptional circumstances and
where necessary. The petitioner may be required to pay the expense of
preparing the copies of the documents to be inspected.
(h) Upon the written request of any party to the proceeding and
the order of any judge of the superior court, the clerk of the court
shall not provide any documents referred to in subdivision (g) for
inspection or copying to any other person, unless the name of the
gestational carrier or any information tending to identify the
gestational carrier is deleted from the documents or copies thereof.
(g) A surrogacy agreement
(i) An assisted reproduction agreement
for gestational carriers executed in accordance with this
section is presumptively valid and shall not be rescinded or revoked
without a court order. For purposes of this part, any failure to
comply with the requirements of this section shall rebut the
presumption of the validity of the assisted reproduction agreement
for gestational carriers.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.