Amended in Assembly March 31, 2016

Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2349


Introduced by Assembly Member Chiu

February 18, 2016


An act to amend Sections 7620 and 7962 of the Family Code, relating to assisted reproduction.

LEGISLATIVE COUNSEL’S DIGEST

AB 2349, as amended, Chiu. Assisted reproduction agreements for gestational carriers.

The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents, governs proceedings to establish that relationship, and establishes the jurisdiction of the courts under the act. Existing law provides that a party to an assisted reproduction agreement may bring an action under the act at any time to establish a parent and child relationship consistent with the intent expressed in that assisted reproduction agreement. Existing law allows an action to establish the parent-child relationship between the intended parent or parents and the child as to a child conceived pursuant to an assisted reproduction agreement for gestational carriers to be filed before the child’s birth and specifies the counties where that action may be filed.

This bill would extend the jurisdiction of the courts under the act to a proceeding to determine parentage of the child as to a child who is conceived pursuant to an assisted reproduction agreement for gestational carriers if certain conditions are satisfied, including if the child is born in this state, or one or more of the parties to the assisted reproduction agreement for gestational carriers resides in this state or resided in this state at the time the assisted reproduction agreement for gestational carriers was executed.

Existing law requires an assisted reproduction agreement for gestational carriers to contain specified information, including the persons from which the gametes originated, unless anonymously donated.

This bill would instead require an assisted reproduction agreement for gestational carriers to contain information regarding the persons from whom the gametes originated, unless donated gametes were used, in which case the agreement shall specify whether the donated gamete or gametes were eggs, sperm, or embryos, or all.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 7620 of the Family Code is amended to
2read:

3

7620.  

(a) A person who has sexual intercourse or causes
4conception with the intent to become a legal parent by assisted
5reproduction in this state, or who enters into an assisted
6reproduction agreement for gestational carriers in this state, thereby
7submits to the jurisdiction of the courts of this state as to an action
8brought under this part with respect to a child who may have been
9conceived by that act of intercourse or assistedbegin delete reproduction.end delete
10
begin insert reproduction, or who may have been conceived as a result of that
11assisted reproduction agreement. end insert

12(b) If a child is conceived pursuant to an assisted reproduction
13agreement for gestational carriers, as defined in Section 7960 and
14as described in Section 7962, the courts of this state shall have
15jurisdiction over a proceeding to determine parentage of the child
16if any of the following conditions is satisfied:

17(1) One or more of the parties to the assisted reproduction
18agreement for gestational carriers resides in this state, or resided
19in this state at the time the assisted reproduction agreement for
20gestational carriers was executed.

P3    1(2) The medical procedures leading to conception, including in
2vitro fertilization or embryo transfer, or both, were carried out in
3this state.

4(3) The child is born in this state.

5(c) An action under this part shall be brought in one of the
6following:

7(1) The county in which the child resides or is found.

8(2) If the child is the subject of a pending or proposed adoption,
9any county in which a licensed California adoption agency to which
10the child has been relinquished or is proposed to be relinquished
11maintains an office.

12(3) If the child is the subject of a pending or proposed adoption,
13the county in which an office of the department or a public adoption
14agency investigating the petition is located.

15(4) If the parent is deceased, the county in which proceedings
16for probate of the estate of the parent of the child have been or
17could be commenced.

18(5) If the child was conceived pursuant to an assisted
19reproduction agreement for gestational carriers, any county
20described in subdivision (e) of Section 7962.

21

SEC. 2.  

Section 7962 of the Family Code is amended to read:

22

7962.  

(a) An assisted reproduction agreement for gestational
23carriers shall contain, but shall not be limited to, all of the following
24information:

25(1) The date on which the assisted reproduction agreement for
26gestational carriers was executed.

27(2) The persons from which the gametes originated, unless
28donated gametes were used, in which case the assisted reproduction
29agreement does not need to specify the name of the donor but shall
30specify whether the donated gamete or gametes were eggs, sperm,
31or embryos, or all.

32(3) The identity of the intended parent or parents.

33(4) Disclosure of how the intended parents will cover the
34medical expenses of the gestational carrier and of the newborn or
35newborns. If health care coverage is used to cover those medical
36expenses, the disclosure shall include a review of the health care
37policy provisions related to coverage for surrogate pregnancy,
38including any possible liability of the gestational carrier, third-party
39liability liens or other insurance coverage, and any notice
40requirements that could affect coverage or liability of the
P4    1gestational carrier. The review and disclosure do not constitute
2legal advice. If coverage of liability is uncertain, a statement of
3that fact shall be sufficient to meet the requirements of this section.

4(b) Prior to executing the written assisted reproduction
5 agreement for gestational carriers, a surrogate and the intended
6parent or intended parents shall be represented by separate
7independent licensed attorneys of their choosing.

8(c) The assisted reproduction agreement for gestational carriers
9shall be executed by the parties and the signatures on the assisted
10reproduction agreement for gestational carriers shall be notarized
11or witnessed by an equivalent method of affirmation as required
12in the jurisdiction where the assisted reproduction agreement for
13gestational carriers is executed.

14(d) The parties to an assisted reproduction agreement for
15gestational carriers shall not undergo an embryo transfer procedure,
16or commence injectable medication in preparation for an embryo
17transfer for assisted reproduction purposes, until the assisted
18reproduction agreement for gestational carriers has been fully
19executed as required by subdivisions (b) and (c) of this section.

20(e) An action to establish the parent-child relationship between
21the intended parent or parents and the child as to a child conceived
22pursuant to an assisted reproduction agreement for gestational
23carriers may be filed before the child’s birth and may be filed in
24the county where the child is anticipated to be born, the county
25where the intended parent or intended parents reside, the county
26where the surrogate resides, the county where the assisted
27reproduction agreement for gestational carriers is executed, or the
28county where medical procedures pursuant to the agreement are
29to be performed. A copy of the assisted reproduction agreement
30for gestational carriers shall be lodged in the court action filed for
31the purpose of establishing the parent-child relationship. The parties
32to the assisted reproduction agreement for gestational carriers shall
33attest, under penalty of perjury, and to the best of their knowledge
34 and belief, as to the parties’ compliance with this section in entering
35into the assisted reproduction agreement for gestational carriers.
36Submitting those declarations shall not constitute a waiver, under
37Section 912 of the Evidence Code, of the lawyer-client privilege
38described in Article 3 (commencing with Section 950) of Chapter
394 of Division 8 of the Evidence Code.

P5    1(f) (1) A notarized assisted reproduction agreement for
2gestational carriers signed by all the parties, with the attached
3declarations of independent attorneys, and lodged with the superior
4court in accordance with this section, shall rebut any presumptions
5contained within Part 2 (commencing with Section 7540),
6subdivision (b) of Section 7610, and Sections 7611 and 7613, as
7to the gestational carrier surrogate, her spouse, or partner being a
8parent of the child or children.

9(2) Upon petition of any party to a properly executed assisted
10reproduction agreement for gestational carriers, the court shall
11issue a judgment or order establishing a parent-child relationship,
12whether pursuant to Section 7630 or otherwise. The judgment or
13order may be issued before or after the child’s or children’s birth
14subject to the limitations of Section 7633. Subject to proof of
15compliance with this section, the judgment or order shall establish
16the parent-child relationship of the intended parent or intended
17parents identified in the surrogacy agreement and shall establish
18that the surrogate, her spouse, or partner is not a parent of, and has
19no parental rights or duties with respect to, the child or children.
20The judgment or order shall terminate any parental rights of the
21surrogate and her spouse or partner without further hearing or
22evidence, unless the court or a party to the assisted reproduction
23agreement for gestational carriers has a good faith, reasonable
24belief that the assisted reproduction agreement for gestational
25carriers or attorney declarations were not executed in accordance
26with this section. Upon motion by a party to the assisted
27reproduction agreement for gestational carriers, the matter shall
28be scheduled for hearing before a judgment or order is issued.
29Nothing in this section shall be construed to prevent a court from
30finding and declaring that the intended parent is or intended parents
31are the parent or parents of the child where compliance with this
32section has not been met; however, the court shall require sufficient
33proof entitling the parties to the relief sought.

34(g) The petition, relinquishment or consent, agreement, order,
35report to the court from any investigating agency, and any power
36of attorney and deposition filed in the office of the clerk of the
37court pursuant to this part shall not be open to inspection by any
38person other than the parties to the proceeding and their attorneys
39and the State Department of Social Services, except upon the
40written authority of a judge of the superior court. A judge of the
P6    1superior court shall not authorize anyone to inspect the petition,
2relinquishment or consent, agreement, order, report to the court
3from any investigating agency, or power of attorney or deposition,
4or any portion of those documents, except in exceptional
5circumstances and where necessary. The petitioner may be required
6to pay the expense of preparing the copies of the documents to be
7inspected.

8(h) Upon the written request of any party to the proceeding and
9the order of any judge of the superior court, the clerk of the court
10shall not provide any documents referred to in subdivision (g) for
11inspection or copying to any other person, unless the name of the
12gestational carrier or any information tending to identify the
13gestational carrier is deleted from the documents or copies thereof.

14(i) An assisted reproduction agreement for gestational carriers
15executed in accordance with this section is presumptively valid
16and shall not be rescinded or revoked without a court order. For
17purposes of this part, any failure to comply with the requirements
18of this section shall rebut the presumption of the validity of the
19assisted reproduction agreement for gestational carriers.



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