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:  8/24/12 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.  

           Senate Floor Amendments  of 8/24/12 change reference from 
          "surrogacy agreement" to "assisted reproduction agreement 
          for gestational carriers".

           Senate Floor Amendments  of 8/22/12 define intended parents 
          and exempt them from provisions of this bill.

           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 

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          expressed in the agreement.  (FAM Section 7630)

          This bill (1) requires a surrogate mother and the intended 
          parent or intended parents, as defined, 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 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; (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.

          For purposes of this bill, the following terms have the 
             following meanings:

          1. "Assisted reproduction agreement" has the same meaning 
             as defined in subdivision (b) of Section 7606.

          2. "Fund management agreement" means the agreement between 
             the intended parents and the surrogacy facilitator 
             relating to the fee or other valuable consideration for 
             services rendered or that will be rendered by the 
             surrogacy facilitator.


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          3. "Intended parent" means an individual, married or 
             unmarried, who manifests the intent to be legally bound 
             as the parent of a child resulting from assisted 
             reproduction.

          4. "Nonattorney surrogacy facilitator" means a surrogacy 
             practitioner who is not an attorney in good standing 
             licensed to practice law in this state.

          5. "Surrogacy facilitator" means a person or organization 
             that engages in either of the following activities:

             A.    Advertising for the purpose of soliciting parties 
                to an assisted reproduction agreement or acting as an 
                intermediary between the parties to an assisted 
                reproduction agreement.

             B.    Charging a fee or other valuable consideration for 
                services rendered relating to an assisted 
                reproduction agreement.

          6. "Surrogate" means a woman who bears and carries a child 
             for another through medically assisted reproduction and 
             pursuant to a written agreement, as set forth in 
             Sections 7606 and 7962.  Within the definition of 
             surrogate are two different and distinct types:

          7. "Traditional surrogate" means a woman who agrees to 
             gestate an embryo, in which the woman is the gamete 
             donor and the embryo was created using the sperm of the 
             intended father or a donor arranged by the intended 
             parent or parents.

          8. "Gestational carrier" means a woman who is not an 
             intended parent and who agrees to gestate an embryo that 
             is genetically unrelated to her pursuant to an assisted 
             reproduction agreement.

          For purposes of the bill, the following terms have the 
             following meanings:

          1. "Assisted reproduction agreement" has the same meaning 
             as defined in subdivision (b) of Section 7606.


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          2. "Fund management agreement" means the agreement between 
             the intended parents and the surrogacy facilitator 
             relating to the fee or other valuable consideration for 
             services rendered or that will be rendered by the 
             surrogacy facilitator.

          3. "Intended parent" means an individual, married or 
             unmarried, who manifests the intent to be legally bound 
             as the parent of a child resulting from assisted 
             reproduction.

          4. "Nonattorney surrogacy facilitator" means a surrogacy 
             practitioner who is not an attorney in good standing 
             licensed to practice law in this state.

          5. "Surrogacy facilitator" means a person or organization 
             that engages in either of the following activities:

             A.    Advertising for the purpose of soliciting parties 
                to an assisted reproduction agreement or acting as an 
                intermediary between the parties to an assisted 
                reproduction agreement.
             B.    Charging a fee or other valuable consideration for 
                services rendered relating to an assisted 
                reproduction agreement.

          6. "Surrogate" means a woman who bears and carries a child 
             for another through medically assisted reproduction and 
             pursuant to a written agreement, as set forth in 
             Sections 7606 and 7962. Within the definition of 
             surrogate are two different and distinct types:

             A.    "Traditional surrogate" means a woman who agrees 
                to gestate an embryo, in which the woman is the 
                gamete donor and the embryo was created using the 
                sperm of the intended father or a donor arranged by 
                the intended parent or parents.

             B.    "Gestational carrier" means a woman who is not an 
                intended parent and who agrees to gestate an embryo 
                that is genetically unrelated to her pursuant to an 
                assisted reproduction agreement.

           Background

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          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, 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: 


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            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 
          assisted reproduction agreements for gestational carriers 
          by clarifying and establishing 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  8/24/12)

          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 

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          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, 
            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  8/26/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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