BILL ANALYSIS Ó
AB 1217
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1217 (Fuentes) - As Amended: April 26, 2011
As Proposed to Be Amended
SUBJECT : ASSISTED REPRODUCTION
KEY ISSUE : SHOULD CASE LAW, WHICH PROVIDES THAT IN ASSISTED
REPRODUCTION CASES THE INTENDED PARENTS ARE THE LEGAL PARENTS,
BE CLARIFIED AND CODIFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to clarify the rights of parties to assisted
reproduction agreements. The cases of Johnson v. Calvert (1993)
5 Cal. 4th 84 and In re Marriage of Buzzanca (1998) 61
Cal.App.4th 1410 make clear that even without a genetic link or
a link by virtue of giving birth, the parties who intended that
a child be born are the child's legal parents. This bill seeks
to codify that case law. This bill is consistent with AB 1349
(Hill), which passed this Committee last week and clarifies that
a donor of semen for a child conceived by artificial
insemination or in vitro fertilization, other than a child
conceived by the donor's wife, is not considered the child's
father, unless the mother and donor agreed otherwise in a
writing signed prior to conception. This bill makes some of the
same changes as that bill, but goes a step further, and
clarifies that, in the case where a mother and a semen donor
agreed in a writing signed prior to conception that the donor is
the intended parent, then the donor is presumed by law to be the
natural father of the child. There is no known opposition to
this version of the bill.
SUMMARY : Clarifies parentage rights of parties using assisted
reproduction technology. Specifically, this bill
1)Provides that a donor of semen for a child conceived by
artificial insemination or in vitro fertilization, other than
a child conceived by the donor's wife, is not considered the
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child's father, unless the mother and the donor agreed
otherwise in a writing signed prior to conception, in which
case the donor is presumed to be the natural father of the
child.
2)Provides that if a woman undergoes in vitro fertilization,
under a physician's supervision, using donated eggs from a
person other than her spouse, and her spouse consents to the
procedure, the spouse is treated in law as if the spouse were
the natural parent of the child thereby conceived. Provides
that the donor of eggs in that situation is not considered the
natural parent, unless otherwise agreed to in a writing signed
by the donor and the woman prior to creation of the embryo, in
which case the donor is presumed to be the natural parent of
the child.
3)Provides that if a woman undergoes in vitro fertilization,
under a physician's supervision, using eggs donated on behalf
of intended parent or parents and the woman agrees to that in
a writing signed by the woman and the intended parents prior
to creation of the embryo, then the woman is not treated as
the natural parent of the child and the intended parents are
presumed to be the child's natural parents.
EXISTING LAW :
1)Defines "assisted reproduction" as conception by any means
other than sexual intercourse. Defines "assisted reproduction
agreement" as a written contract that includes a person who
intends to be the legal parent of a child born through
assisted reproduction and defines the terms of the
relationship between the parties to the contract. (Family
Code Section 7606. Unless otherwise stated, all further
references are to that code.)
2)Provides that a party to an assisted reproduction agreement
may bring an action at any time to establish a parent-child
relationship consistent with the intent expressed in the
agreement. (Section 7630.)
3)Provides that an action to establish parentage may be brought
before the birth of the child, but enforcement of that order
must be stayed until the child's birth. (Section 7633.)
4)Provides that if, under a physician's supervision and with the
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consent of the husband, a wife is artificially inseminated
with the semen of another man, the husband is treated as if he
were the natural father of the child so conceived. Requires
the husband's consent to be in writing and signed by both the
husband and the wife. Provides that the donor of sperm
provided to a licensed physician or sperm bank for use in
artificial insemination or in vitro fertilization of a woman,
other than the donor's wife, is not treated as the child's
natural father. (Section 7613.)
COMMENTS : This bill seeks to clarify the rights of parties to
assisted reproduction agreements. Case law in California makes
clear that the intended parents are the natural parents and this
bill clarifies and codifies that case law. In support of the
bill the author writes:
Advances in medicine have produced an explosion in
treatments for, and the availability of, assisted
reproduction technologies. Assisted reproduction
encompasses a variety of medical procedures such as
assisted insemination or in vitro fertilization. There is
a significant amount of money and emotion at stake during
these medical procedures. Case law, rather than
legislative guidance, dictates third party reproduction or
surrogacy rules in California. That should change.
California Case Law Makes Clear that the Intended Parents of a
Child Born Using Assisted Reproduction Technology are the
Child's Parents : Two cases have established that intended
parents in assisted reproduction are the legal parents of the
child so conceived. In the first case, Johnson v. Calvert
(1993) 5 Cal. 4th 84, a married couple entered into a contract
with a surrogate to have an embryo created with the couple's
genetic material implanted in the surrogate. The parties had a
falling out and the parents and the surrogate brought separate
legal actions to be declared the unborn child's parents. The
trial court consolidated the actions, determined that the
married couple was the child's biological and natural parents,
and terminated the visitation rights that the surrogate had
obtained in an earlier temporary order. The Supreme Court
affirmed, holding that when the two methods of recognizing
parentage in women - genetic evidence of parentage and giving
birth to the child - occur in two separate women, the woman who
intended that the child be born is the child's legal mother.
Wrote the Court:
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Because two women each have presented acceptable proof of
maternity, we do not believe this case can be decided
without enquiring into the parties' intentions as
manifested in the surrogacy agreement. Mark and Crispina
are a couple who desired to have a child of their own genes
but are physically unable to do so without the help of
reproductive technology. They affirmatively intended the
birth of the child, and took the steps necessary to effect
in vitro fertilization. But for their acted-on intention,
the child would not exist. Anna agreed to facilitate the
procreation of Mark's and Crispina's child. The parties'
aim was to bring Mark's and Crispina's child into the
world, not for Mark and Crispina to donate a zygote to
Anna. Crispina from the outset intended to be the child's
mother. Although the gestative function Anna performed was
necessary to bring about the child's birth, it is safe to
say that Anna would not have been given the opportunity to
gestate or deliver the child had she, prior to implantation
of the zygote, manifested her own intent to be the child's
mother. No reason appears why Anna's later change of heart
should vitiate the determination that Crispina is the
child's natural mother.
We conclude that although the ÝUniform Parentage] Act
recognizes both genetic consanguinity and giving birth as
means of establishing a mother and child relationship, when
the two means do not coincide in one woman, she who
intended to procreate the child--that is, she who intended
to bring about the birth of a child that she intended to
raise as her own--is the natural mother under California
law.
Five years later, a more complicated fact pattern arose again in
In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, but with
the same ultimate result. In that case, the intended parents
did not have a genetic link to the child, but instead entered
into a contact with a surrogate to have a fertilized egg from
donors unrelated to the couple implanted in the surrogate. Just
days prior to the birth of that child, the husband filed for
dissolution alleging there were no children of the marriage.
The wife filed her own action to be declared the child's mother.
The trial court accepted the stipulation of the surrogate and
her husband that they were not the parents, but then determined
that the wife was not the mother of the child and that,
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therefore, neither was the husband, effectively leaving the
child as a legal orphan.
The court of appeals reversed, writing succinctly:
Jaycee was born because Luanne and John Buzzanca agreed to
have an embryo genetically unrelated to either of them
implanted in a woman--a surrogate--who would carry and give
birth to the child for them. After the fertilization,
implantation and pregnancy, Luanne and John split up, and
the question of who are Jaycee's lawful parents came before
the trial court.
Luanne claimed that she and her erstwhile husband were the
lawful parents, but John disclaimed any responsibility,
financial or otherwise. The woman who gave birth also
appeared in the case to make it clear that she made no
claim to the child.
The trial court then reached an extraordinary conclusion:
Jaycee had no lawful parents. First, the woman who gave
birth to Jaycee was not the mother; the court
had--astonishingly--already accepted a stipulation that
neither she nor her husband were the "biological" parents.
Second, Luanne was not the mother. According to the trial
court, she could not be the mother because she had neither
contributed the egg nor given birth. And John could not be
the father, because, not having contributed the sperm, he
had no biological relationship with the child.
We disagree. Let us get right to the point: Jaycee never
would have been born had not Luanne and John both agreed to
have a fertilized egg implanted in a surrogate.
(Id. at 1412.) The court concluded that if a man who consent to
artificial insemination of his wife with donor sperm is
considered the father of the child so conceived, "there is no
reason the result should be any different in the case of a
married couple who consent to in vitro fertilization by unknown
donors and subsequent implantation into a woman who is, as a
surrogate, willing to carry the embryo to term for them." (Id.
at 1418.)
Both of these cases make clear that even without a genetic link
or a link by virtue of giving birth, the parties who intended to
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bring the child into the world are the child's legal parents.
This bill seeks to codify that case law.
This Bill is Consistent with AB 1349 (Hill), which Passed Out of
This Committee Last Week : Last week this Committee passed out,
on a 7-2 vote, AB 1349 (Hill), which resolves discrepancies that
may occur when a voluntary paternity declaration has been
executed, but other paternity presumptions also exist. That
bill also clarifies that a donor of semen for a child conceived
by artificial insemination or in vitro fertilization, other than
a child conceived by the donor's wife, is not considered the
child's father, unless the mother and the donor agreed otherwise
in a writing signed prior to conception. This bill is
consistent with that bill and, in fact, makes some of the same
changes as that bill. This bill, however, goes a step further,
and clarifies that, in the case where a mother and a semen donor
agreed in a writing signed prior to conception that the donor is
the intended parent, then the donor is presumed by law to be the
natural father of the child. This further clarification helps
to better effectuate the wishes of intended parents.
Author's Amendments : With the additional amendments to the bill
added on April 26, 2011, the author has agreed to delete the
first section of the bill. This is accomplished with the
following amendment:
Delete page 3, lines 1-21
In addition, the author appropriately seeks amendments to
clarify, in the case of egg donation, that the assisted
reproduction agreement must be executed prior to creation of the
embryo. The following amendments make this clarification:
On page 4, line 35, delete "conception of the child" and insert:
creation of the embryo
On page 5, line 1, delete "conception of the child" and insert:
creation of the embryo
REGISTERED SUPPORT / OPPOSITION :
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Support (to current version of the bill)
None on file
Opposition (to current version of the bill)
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334