BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1217| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 1217 Page 2 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 CONTINUED AB 1217 Page 3 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. CONTINUED AB 1217 Page 4 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 CONTINUED AB 1217 Page 5 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, CONTINUED AB 1217 Page 6 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 **** END **** CONTINUED