BILL ANALYSIS Ó AB 1217 Page 1 ASSEMBLY THIRD READING AB 1217 (Fuentes) As Amended May 9, 2011 Majority vote JUDICIARY 9-0 ----------------------------------------------------------------- |Ayes:|Feuer, Wagner, Atkins, | | | | |Dickinson, Huber, | | | | |Huffman, Jones, Monning, | | | | |Wieckowski | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 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. AB 1217 Page 2 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. 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. 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. 4)Provides that if, under a physician's supervision and with the 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. FISCAL EFFECT : None 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. 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 AB 1217 Page 3 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: 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 in In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, but with the AB 1217 Page 4 same ultimate result. In that case, the intended parents did not have a genetic link to the child, but instead entered into a contract 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, 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. . . . 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 consents 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 AB 1217 Page 5 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 bring the child into the world are the child's legal parents. This bill seeks to codify that case law. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000566