BILL ANALYSIS Ó
AB 1217
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1217 (Fuentes)
As Amended August 24, 2012
Majority vote
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|ASSEMBLY: |76-0 |(May 19, 2011) |SENATE: |37-0 |(August 28, |
| | | | | |2012) |
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Original Committee Reference: HEALTH
SUMMARY : Clarifies parentage rights of parties using assisted
reproduction technology and specifies requirements for an
assisted reproduction agreement for gestational carriers.
Specifically, this bill :
1)Requires that both parties to an assisted reproduction
agreement for gestational carriers, as defined, be represented
by separate, independent counsel prior to the signing of the
agreement. Excludes from the definition of gestational
carrier an intended parent, defined as an individual who
manifest the intent to be legally bound as the parent of a
child resulting from assisted reproduction.
2)Prohibits the parties to an assisted reproduction agreement
for gestational carriers from undergoing an embryo transfer,
or commencing injectable medicine prior to the execution of
the agreement.
3)Allows an action to establish a parent-child relationship for
a child conceived as the result of an assisted reproduction
agreement for gestational carriers to be filed prior to the
birth of the child, as specified.
4)Provides that an assisted reproduction agreement for
gestational carriers that is executed in accordance with
required provisions and filed with the court rebuts any
presumption that the surrogate, and her spouse or partner, are
the parents of the child.
5)Requires the court, upon the filing of a properly executed
assisted reproduction agreement for gestational carriers, to
issue a judgment establishing a parent-child relationship.
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6)Provides that all pleadings and documents in a case filed
under 4) or 5) above, shall not be open to the public, except
in exceptional circumstances and where necessary.
7)Provides that an assisted reproduction agreement for
gestational carriers that is executed in accordance with
required provisions is presumptively valid and may not be
rescinded or revoked without a court order.
The Senate amendments clarify parties' rights under an assisted
reproduction agreement for gestational carriers.
EXISTING LAW :
1)Defines "assisted reproduction" as conception by any means
other than sexual intercourse. Defines "assisted reproduction
agreement" as a written contract that includes a person who
intends to be the legal parent of a child born through
assisted reproduction and defines the terms of the
relationship between the parties to the contract.
2)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 in the
agreement.
3)Provides that an action to establish parentage may be brought
before the birth of the child, but enforcement of that order
must be stayed until the child's birth.
AS PASSED BY THE ASSEMBLY , this bill addressed rights of parties
to assisted reproduction agreements.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This bill seeks to clarify the rights of parties to
assisted reproduction agreements. Case law in California makes
clear that the intended parents are the natural parents and this
bill clarifies, codifies and expands upon that case law.
Two cases have established that intended parents in assisted
reproduction are the legal parents of the child so conceived.
In the first case, Johnson v. Calvert (1993) 5 Cal. 4th 84, a
married couple entered into a contract with a surrogate to have
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an embryo created with the couple's genetic material implanted
in the surrogate. The parties had a falling out and 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, and terminated the visitation
rights that the surrogate had obtained in an earlier temporary
order. The Supreme Court affirmed, holding that when the two
methods of recognizing parentage in women - genetic evidence of
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. Wrote the Court:
Because two women each have presented acceptable proof of
maternity, we do not believe this case can be decided
without enquiring into the parties' intentions as
manifested in the surrogacy agreement. Mark and Crispina
are a couple who desired to have a child of their own genes
but are physically unable to do so without the help of
reproductive technology. They affirmatively intended the
birth of the child, and took the steps necessary to effect
in vitro fertilization. But for their acted-on intention,
the child would not exist. Anna agreed to facilitate the
procreation of Mark's and Crispina's child. The parties'
aim was to bring Mark's and Crispina's child into the
world, not for Mark and Crispina to donate a zygote to
Anna. Crispina from the outset intended to be the child's
mother. Although the gestative function Anna performed was
necessary to bring about the child's birth, it is safe to
say that Anna would not have been given the opportunity to
gestate or deliver the child had she, prior to implantation
of the zygote, manifested her own intent to be the child's
mother. No reason appears why Anna's later change of heart
should vitiate the determination that Crispina is the
child's natural mother.
We conclude that although the ÝUniform Parentage] Act
recognizes both genetic consanguinity and giving birth as
means of establishing a mother and child relationship, when
the two means do not coincide in one woman, she who
intended to procreate the child--that is, she who intended
to bring about the birth of a child that she intended to
raise as her own--is the natural mother under California
law.
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Five years later, a more complicated fact pattern arose in In re
Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, but with the
same ultimate result. In that case, the intended parents did
not have a genetic link to the child, but instead entered into a
contract with a surrogate to have a fertilized egg from donors
unrelated to the couple implanted in the surrogate. Just days
prior to the birth of that child, the husband filed for
dissolution alleging there were no children of the marriage.
The wife filed her own action to be declared the child's mother.
The trial court accepted the stipulation of the surrogate and
her husband that they were not the parents, but then determined
that the wife was not the mother of the child and that,
therefore, neither was the husband, effectively leaving the
child as a legal orphan.
The Court of Appeals reversed, writing succinctly:
Jaycee was born because Luanne and John Buzzanca agreed to
have an embryo genetically unrelated to either of them
implanted in a woman--a surrogate--who would carry and give
birth to the child for them. After the fertilization,
implantation and pregnancy, Luanne and John split up, and
the question of who are Jaycee's lawful parents came before
the trial court. . . .
The trial court then reached an extraordinary conclusion:
Jaycee had no lawful parents. First, the woman who gave
birth to Jaycee was not the mother; the court
had--astonishingly--already accepted a stipulation that
neither she nor her husband were the "biological" parents.
Second, Luanne was not the mother. According to the trial
court, she could not be the mother because she had neither
contributed the egg nor given birth. And John could not be
the father, because, not having contributed the sperm, he
had no biological relationship with the child.
We disagree. Let us get right to the point: Jaycee never
would have been born had not Luanne and John both agreed to
have a fertilized egg implanted in a surrogate.
(Id. at 1412.)
The court concluded that if a man who consents to artificial
insemination of his wife with donor sperm is considered the
father of the child so conceived, "there is no reason the result
should be any different in the case of a married couple who
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consent to in vitro fertilization by unknown donors and
subsequent implantation into a woman who is, as a surrogate,
willing to carry the embryo to term for them." (Id. at 1418.)
Both of these cases make clear that even without a genetic link
or a link by virtue of giving birth, the parties who intended to
bring the child into the world are the child's legal parents.
This bill seeks to clarify and enhance that case law.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN:
0005700