BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1217 (Fuentes)
As Amended June 11, 2012
Hearing Date: July 3, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Surrogacy Agreements
DESCRIPTION
The Uniform Parentage Act defines the parent - child
relationship and 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 by that agreement.
This bill would require a surrogate mother and the intended
parent(s), each represented by independent counsel, to execute a
notarized or witnessed surrogacy agreement before the mother can
begin medication for assisted reproduction. This bill would
require counsel for each party to issue a statement expressing
that the agreement complies with the provisions of this bill to
the treating physician.
This bill would provide that to request a parent-child
relationship, the surrogacy agreement must be filed in the
superior court, as specified. The parties must attest, under
penalty of perjury, that to the best of their knowledge, the
surrogacy agreement is in compliance with the provisions of this
bill. A properly filed surrogacy agreement would rebut any
presumption that the surrogate, her spouse, or her partner is a
parent of the child or children. This bill would provide that
upon a properly executed surrogacy agreement and a petition to
the court, the court shall issue a judgment establishing a
parent-child relationship with the intended parent(s) in the
surrogacy agreement.
(more)
AB 1217 (Fuentes)
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This bill would require a court, upon the request of a party to
a surrogacy agreement, to order all pleadings and documents that
list the names of the parties sealed.
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BACKGROUND
The U.S. Centers for Disease Control and Prevention tracks
births by gestational surrogates (where the surrogate is not
biologically related to the child). From 2001 to 2006, the
number of gestational surrogates doubled to 1,042 nationwide.
Couples unable to have children on their own are increasingly
turning to surrogate mothers. This increase in the use of
surrogates has led to a growth in surrogate brokers who promise
to match a couple with a surrogate mother. Prospective parents
often pay large fees to surrogacy facilitators to help them in
their desire to have a baby. These fees, which appear to range
from $40,000 to more than $100,000, are intended to cover the
facilitator's services in matching families and surrogates, as
well as the surrogate's medical bills, prescriptions, and legal
arrangements.
Reports indicate that some surrogacy facilitators are engaged in
surrogacy scams in which they collect funds from a client, but
never pass along those payments to the surrogate, as promised.
In one Sacramento area case, a woman was charged with 19 counts
of grand theft for stealing tens of thousands of dollars from
hopeful parents.
AB 2426 (Bradford, Chapter 138, Statutes of 2010) attempted to
address these problems on the frontend by establishing
safeguards for surrogates that require surrogacy facilitators to
direct a client to deposit all client funds into either an
independent, bonded escrow account, or a trust account
maintained by an attorney.
Last year a San Diego attorney, Theresa Erickson, plead guilty
to conspiracy to commit wire fraud based on charges she
recruited women to travel abroad, submit to the implantation of
embryos, and return to the United States to be shopped to
parents unable to conceive their own offspring. Those parents
were told the babies were the product of legal surrogacy
arrangements gone awry, and they could step in for a fee of
$100,000 or more. In fact, no parents had ever been lined up to
take home the babies Erickson and her accomplices were
producing. UT San Diego reported:
Any agreement has to be made before a surrogate is
impregnated, usually through in vitro fertilization.
Typically couples reach that agreement and go to court to get
a pre-birth judgment, which allows the names of the intended
parents to be placed on the birth certificate. But if an
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already pregnant woman agrees to give birth and turn the
child over for a fee, that is considered baby selling and is
illegal under the penal code. Moreover, ? an agreement
beforehand is not considered under the law to be an adoption,
which is more stringently regulated than surrogacy. (Morgan,
Baby-selling case sheds light on surrogacy, Feb. 18, 2012,
U-T San Diego, found at
http://www.utsandiego.com/news/2012/feb/18/baby-selling-case-s
heds-light-on-surrogacy/?page=2#article)
This bill would seek to remedy the problems associated with
surrogacy arrangements by clarifying and establishing procedural
safeguards for all parties involved in surrogacy agreements,
and creating responsibilities for those parties.
CHANGES TO EXISTING LAW
Existing law defines "surrogacy facilitator" as a person or
organization that advertises for the purpose of soliciting
parties to an assisted reproduction agreement, acts as an
intermediary between the parties to an assisted reproduction
agreement or charges a fee or other valuable consideration for
services rendered relating to an assisted reproduction
agreement. (Fam. Code Sec. 7960.)
Existing law defines an assisted reproduction agreement as a
written contract that includes a person who intends to be the
legal parent of a child or children born through assisted
reproduction and that defines the terms of the relationship
between the parties to the contract. (Fam. Code Sec. 7606.)
Existing law provides that it is a misdemeanor for any person or
agency to pay, offer to pay, or to receive money or anything of
value for the placement for adoption or for the consent to an
adoption of a child. It is not, however, unlawful to pay or
receive the maternity-connected medical or hospital and
necessary living expenses of the mother preceding the birth of
the child, as long as the payment is not contingent upon
placement of the child for adoption, consent to the adoption, or
cooperation in the completion of the adoption. (Pen. Code Sec.
273.)
Existing law provides that a party to an assisted reproduction
agreement may bring an action at any time to establish a
parent-child relationship with the intent expressed in the
agreement. (Fam. Code Sec. 7630.)
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This bill would define surrogate as a woman who bears and
carries a child for another through medically assisted
reproduction and pursuant to a written agreement. This bill
would define a surrogacy agreement as a written contract that
includes a person who intends to be the legal parent of a child
or children born through assisted reproduction and that defines
the terms of the relationship between the parties to the
contract.
This bill would require that both parties to a surrogacy
agreement be represented by independent counsel prior to the
signing of the agreement, and require each party's counsel to
issue a statement to the treating physician that the agreement
was issued in conformity with the provisions of this bill.
This bill would require the surrogacy agreement to be witnessed
or notarized, and would prohibit the surrogate from undergoing
artificial insemination, an embryo transfer, or commencing
injectable medicine prior to the execution of a surrogacy
agreement and the issuing of a statement to the treating
physician.
This bill would require, for a party to request a parent-child
relationship, that the surrogacy agreement be filed in the
superior court, as specified. This bill would require that the
parties attest that to the best of their knowledge, under
penalty of perjury, that the agreement is in compliance with the
provisions of this bill.
This bill would provide that any agreement that is executed in
accordance with the provisions of the bill is presumptively
valid and shall rebut any presumptions that the surrogate, and
her spouse or partner, are the parents of the child. This bill
would provide that upon the filing of a properly executed
agreement the court shall issue a judgment establishing a
parent-child relationship.
This bill would require the court, upon a request by a party, to
order all pleadings and documents that list the identities of
the parties be sealed.
COMMENT
1.Stated need for the bill
According to the author:
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Currently, there is practically no statutory law on point
directly addressing surrogacy, the enforceability of such
contracts, the parental rights of the parties to a surrogacy
contract or any rules or regulations addressing the operation
and protocols of surrogacy agencies. ? Furthermore, existing
law is largely based upon presumptions that were formulated
more than a decade before technologies such as IVF and egg
donation existed.
2.Codifying and clarifying case law concerning surrogacy
agreements
California case law establishes that even without a genetic
link, the parties who intended to bring a child into the world
are the child's legal parents (Johnson v. Calvert (1993); 5 Cal.
4th 84 Marriage of Buzzanca; (1998) 61 Cal.App.4th 1410). This
bill, with respect to surrogacy agreements, seeks to codify and
clarify that case law by requiring parties to enter into
surrogacy agreements, as specified, prior to the commencement of
any medical treatment related to the surrogacy arrangement. This
bill would provide that a surrogacy agreement which complies
with the provisions of the bill would rebut any presumptions of
parentage by the surrogate and her spouse or partner. This bill
would also outline the required procedure for establishing a
parent-child relationship by court order. These clarifications
will arguably add an additional layer of protection and
predictability for parties to a surrogacy agreement.
a) Parties to the agreement
This bill would establish requirements for surrogates and
intended parents in the execution of agreements governing the
surrogacy arrangement. Under this bill, "surrogate" means any
woman who bears and carries a child for another through
medially assisted reproduction and pursuant to a written
agreement.
However, this definition does not acknowledge that there are
two different and distinct types of surrogate. Traditional
surrogates agree to gestate their own embryo, created using
the sperm of the intended father or a donor arranged by the
intended parent or parents. The second type of surrogate, a
gestational carrier, is instead a woman who agrees to gestate
an embryo that is genetically unrelated to her on behalf of
another person or persons.
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According to the author, this bill seeks to address the
"failings of our current system" as evidenced by fraud and
improper business practices related to assisted reproduction.
This intent would arguably be better addressed by limiting
the provisions of this bill to gestational carriers, who were
exploited in the cases which are the impetus for this bill.
The following amendment would define the two different types
of surrogates, and limit the provisions of this bill to
gestational carriers and assisted reproduction agreements for
gestational carriers.
Suggested amendments:
Page 3, Line 32, after "7962" insert ""Within the
definition of surrogate are two different and distinct
types: (i) a traditional surrogate means a woman who agrees
to gestate an embryo, in which the woman is the gamete
donor and was created using the sperm of the intended
father or a donor arranged by the intended parent or
parents; and (ii) gestational carrier means a woman who
agrees to gestate an embryo that is genetically unrelated
to her on behalf of another person or persons.
Page 3, Line 38, after "7962" insert "(a) An assisted
reproduction agreement for gestational carriers shall
contain, but not be limited to, all of the following: (1)
the date the assisted reproduction agreement for
gestational carriers was entered into; (2) where the
gametes originated; and (3) who the intended parents are."
Throughout the bill, replace "surrogacy agreement" with
"assisted reproduction agreement for gestational carriers"
b) Independent counsel
This bill would require that prior to the signing of a
surrogacy agreement, the parties must be represented by
separate and independent licensed attorneys. Because of the
expenses related to gestational carrier arrangements, it is
often the case that the intended parents have greater assets
and income than the surrogate. Where great discrepancies in
wealth exist among parties to a contract and the subject matter
is one concerning public policy, courts are more likely to look
at the validity of contracts with close scrutiny. For example,
courts have often found premarital agreements invalid due to
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lack of disclosure or undue influence where there has been a
great disparity of income between the parties, or extreme
emotional or financial reliance.
Similarly, surrogacy arrangements deal with intensely personal
issues and require significant resources. As a result, there
is potential for abuse in these arrangements by both parties,
and significant opportunity for unanticipated problems to
arise. Therefore, thorough and well-crafted agreements are
necessary to protect all interested parties. Where both sides
are represented by independent counsel, it is implied that both
of their interests will be represented in the agreement.
Therefore, because of the complexities of surrogacy
arrangements, independent counsel is important for the validity
of the contract and to ensure the rights and responsibilities
that accompany that agreement are clear.
c) Statement to treating physician
This bill would require, after the signing of the surrogacy
agreement, the parties' attorneys submit to the treating
physician in the assisted reproductive undertaking that the
agreement was executed in conformity with the provisions of
this bill. It appears that this provision was included by the
author to ensure that parties enter into a valid contract
before any medical treatment for the surrogate begins, thus
ensuring that the agreement is a legal one based on assisted
reproduction, and not adoption.
However, this provision appears to raise a number of questions.
In practice, well-written agreements should be valid from the
face of the agreement. Requiring an action after the execution
of the contract to make the contract valid is a deviation from
standard practice and could create confusion. Furthermore, it
is not clear whether inadvertent non-compliance with this
provision would render the agreement invalid, and compromise
the intended parents' rights, or subject medical professionals
to liability or discipline from licensing boards.
Arguably, the requirement under this bill that parties be
represented by independent counsel should be sufficient to
ensure that surrogacy agreements comply with the law and
protect the parties, without imposing additional legal
obligations on medical professionals. Thus, it is arguably
unnecessarily to restrict the practice of medicine by limiting
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the ability of a physician to perform a procedure for which he
or she is duly licensed to perform. The following amendments
would eliminate the requirement that each party's attorney
issue a statement to the treating physician, and instead
require that parties enter into an executed agreement prior to
medical treatment
Suggested amendment:
Page 4, line 1, strike "After reviewing the parties'
surrogacy agreement"
Page 4, strike line 2 through 10, inclusive.
Page 4, Line 15, after "executed" insert "For the purposes
of this Part, failure to comply with this section is
limited to the presumption of validity of the assisted
reproduction agreement for gestational carriers."
Page 4, strike lines 17-24, inclusive, and rewrite with the
following language: "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 has been fully executed as required
by subdivisions (b) and (c) of this Section."
d) Pre-birth order establishing a parent-child relationship
This bill would outline a procedure for establishing a
parent-child relationship by court order. Under existing law,
parties to surrogacy agreements have relied on the Uniform
Parentage Act to determine the legal rights of the intended
parents and the surrogate. In particular, two cases have
established that the intended parents in surrogacy agreements
are the legal parents of the child conceived from that
arrangement. In Johnson v. Calvert, a married couple entered
into a contract to have an embryo created their genetic
material implanted in a surrogate. After a number of
disagreements, 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.
The Supreme Court affirmed, holding that when the two methods
of recognizing parentage in women - genetic evidence of
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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. In In re Marriage of Buzzanca, the court
held that the parties who intended the child to be born were
the legal parents, even without a genetic link to the embryo
implanted in the surrogate.
This bill would, in effect, codify the above interpretations of
the Uniform Parentage Act into specific statutory language
specifically for surrogacy agreements. As a result, intended
parents, surrogates, and courts would arguably have a clear
procedure to follow in creating and enforcing surrogacy
agreements and determining parental rights.
1.Private interest does not sufficiently outweigh public
interest to merit sealing of court record
This bill would require the court, upon the petition of any
party to a surrogacy agreement for a petition to establish a
parent-child relationship, to order all pleadings and documents
that list the identities of the parties sealed. Arguably, this
is contrary to the well-established policy in California to
allow maximum public access to judicial proceedings and records.
(Estate of Hearst (1977) 67 Cal.App.3d 777, 784.) Other cases
have held that "judicial records are historically and
presumptively open to the public and there is an important right
of access which should not be closed except for compelling
countervailing reasons." (Pantos v. City and County of San
Francisco (1984) 151 Cal.App.3d 358; Champion v. Superior Court
(1988) 201 Cal.App.3d 777; NBC Subsidiary (KNBC-TV) Inc. v. Sup.
Ct. (1999) 20 Cal.4th 1178.)
The same principles apply to family law cases, as stated in the
California Appellate Court's decision in Green v. Uccelli
((1989) 207 Cal.App.3d 1112), and followed by Marriage of
Lechowick ((1998) 65 Cal.App.4th 1406). These two cases
affirmed that the court's authority to close court hearings,
procedures, and files is limited by statute. As a result, under
current law a party must petition the court to have specific
records sealed. That process is involved and requires a noticed
motion, a hearing, and an order. The balancing test used by the
court is whether the public interest in access to the records is
clearly outweighed by the privacy interests of the petitioner.
In most cases, following Lechowick and Uccelli, courts have
refused to seal records. Over the years, certain records, such
as child custody evaluation or mediation reports were made
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confidential, in order to protect the interests of the children
involved.
In California adoption cases, the courts do not seal the record,
but prohibit inspection by anyone other than the parties, the
parties' attorneys, or the Department of Social Services. A
court may not authorize anyone else to inspect the record,
except in exceptional circumstances and for good cause.
Surrogacy is in many ways comparable to adoption, and the
existing law arguably provides protection for parties' privacy,
without compromising the public interest or unduly burdening the
court. The following amendment would restrict inspection of
pleadings and the court record to the parties in the action, as
used in adoption proceedings.
Suggested amendments
Page 5, strike lines 31 through 38, inclusive.
Page 5, line 31, after a new"(g)" insert "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 is not open to inspection by
any person other than the parties to the proceeding and their
attorneys and the department, except upon the written
authority of the judge of the superior court. A judge of the
superior court may 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 any of these
documents, except in exceptional circumstances and for good
cause approaching the necessitous. The petitioner may be
required to pay the expenses for preparing the copies of the
documents to be inspected.
(h) Upon written request of any party to the proceeding and
upon the order of any judge of the superior court, the clerk
of the court shall not provide any documents referred to in
this section 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."
2.Other clarifying and technical amendments
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The following clarifying amendments would address redundancies
and inconsistencies created by the suggested amendments above.
Suggested Amendments
Page 4, strike line 26-40, inclusive, and insert "(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, 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
in which the intended parent or intended parents reside, the
county where the surrogate resides, the county where the
surrogacy agreement 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 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. Submitting such 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."
Page 5, strike line 1 through 7, inclusive, and rewrite with
new (f)(1) "A notarized assisted reproduction agreement for
gestational carriers signed by all the parties, with the
attached declarations of independent attorneys, lodged with
the superior court in accordance with this section surrogacy
agreement that is not 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 gestational
carrier surrogate, her spouse, or partner being a parent of
the child or children."
Support : Academy of California Adoption Lawyers (ACAL)
Opposition : None Known
HISTORY
AB 1217 (Fuentes)
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Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2426 (Bradford, Chapter 138, Statutes 2010) See Background.
AB 1349 (Hill, Chapter 185, Statutes 2011), 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 donor agreed otherwise in a writing signed prior to
conception.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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