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: 8/24/12 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 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. 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 CONTINUED AB 1217 Page 3 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. CONTINUED AB 1217 Page 4 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. CONTINUED AB 1217 Page 5 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 CONTINUED AB 1217 Page 6 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: CONTINUED AB 1217 Page 7 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 CONTINUED AB 1217 Page 8 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 **** END **** CONTINUED