BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1217|
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THIRD READING
Bill No: AB 1217
Author: Fuentes (D)
Amended: 8/6/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 7/3/12
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 76-0, 5/19/11 - See last page for vote
SUBJECT : Surrogacy agreements
SOURCE : Author
DIGEST : This bill amends the Uniform Parentage Act to
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
requires 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 provides
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
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bill. A properly filed surrogacy agreement would rebut any
presumption that the surrogate, her spouse, or her partner
is a parent of the child(ren). This bill provides 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.
ANALYSIS : 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. (Family Code (FAM)
Section 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(ren) born through assisted
reproduction and that defines the terms of the relationship
between the parties to the contract. (FAM Section 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. (Penal Code Section 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 Section 7630)
This bill (1) requires a surrogate mother and the intended
parent or intended parents to be represented by separate
independent counsel of their choosing prior to executing an
assisted reproduction agreement for gestational carriers,
as defined; (2) requires an assisted reproduction agreement
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for gestational carriers to contain specified information;
(3) requires the assisted reproduction agreement for
gestational carriers to be executed by the parties and
notarized or otherwise witnessed, as specified; (4)
prohibits 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; (5) permits an action
to establish the parent-child relationship to be filed
before the child's birth, and specifies where that action
may be filed; (6) requires the parties to the assisted
reproduction agreement for gestational carriers to attest,
under penalty of perjury, 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 imposes a state-mandated local program; (7)
provides that an assisted reproduction agreement for
gestational carriers executed in accordance with these
provisions is presumptively valid; and (8) provides 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 Department of Social Services, except as specified.
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.
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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, 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. U-T 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 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, February 18, 2012, U-T San Diego, found at
http://www.utsandiego.com/news/2012/feb/18/baby-selling-ca
se-sheds-light-on-surrogacy/?page=2#article)
This bill seeks to remedy the problems associated with
surrogacy arrangements by clarifying and establishing
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procedural safeguards for all parties involved in
surrogacy agreements, and creating responsibilities for
those parties.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/6/12)
Academy of California Adoption Lawyers
ARGUMENTS IN SUPPORT : According to the author,
"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."
ASSEMBLY FLOOR : 76-0, 5/19/11
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Mendoza, Miller,
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Mitchell, Monning, Morrell, Nestande, Nielsen, Norby,
Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Alejo, Gorell, Ma, Mansoor
RJG:m 8/7/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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