Amended in Assembly May 23, 2016

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

begin insert

(Coauthors: Assembly Members Eggman and Gordon)

end insert

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    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertThe Legislature finds and declares both of the
2following:end insert

begin insert

3
(a) California courts already have subject matter jurisdiction
4over actions involving an assisted reproduction agreement between
5a surrogate and an intended parent or parents under Section 7630
6of the Family Code. However, current law does not explicitly
7provide that California courts have subject matter jurisdiction or
8clearly explain the circumstances under which subject matter
9 jurisdiction exists.

end insert
begin insert

10
(b) Many intended parents and surrogates enter into assisted
11reproduction agreements in California in which one or more of
12the parties end up living in another state. California court orders
13regarding the parentage of a child born through surrogacy must
14be given full faith and credit only if the issuing court had subject
15matter jurisdiction. For these reasons, California has an interest
16in clarifying that California courts have subject matter jurisdiction
17over assisted reproduction agreements between a surrogate and
18an intended parent or parents if one or more parties resides in
19California, any medical procedures leading to conception occurs
20in California, or the child is born in California.

end insert
P3    1

begin deleteSECTION 1.end delete
2
begin insertSEC. 2.end insert  

Section 7620 of the Family Code is amended to read:

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 assisted reproduction, or
10who may have been conceived as a result of that assisted
11reproduction agreement.

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.

21(2) The medical procedures leading to conception, including in
22vitro fertilization or embryo transfer, or both, were carried out in
23this state.

24(3) The child is born in this state.

25(c) An action under this part shall be brought in one of the
26following:

27(1) The county in which the child resides or is found.

28(2) If the child is the subject of a pending or proposed adoption,
29any county in which a licensed California adoption agency to which
30the child has been relinquished or is proposed to be relinquished
31maintains an office.

32(3) If the child is the subject of a pending or proposed adoption,
33the county in which an office of the department or a public adoption
34agency investigating the petition is located.

35(4) If the parent is deceased, the county in which proceedings
36for probate of the estate of the parent of the child have been or
37could be commenced.

38(5) If the child was conceived pursuant to an assisted
39reproduction agreement for gestational carriers, any county
40described in subdivision (e) of Section 7962.

P4    1

begin deleteSEC. 2.end delete
2
begin insertSEC. 3.end insert  

Section 7962 of the Family Code is amended to read:

3

7962.  

(a) An assisted reproduction agreement for gestational
4carriers shall contain, but shall not be limited to, all of the following
5information:

6(1) The date on which the assisted reproduction agreement for
7gestational carriers was executed.

8(2) The persons from which the gametes originated, unless
9donated gametes were used, in which case the assisted reproduction
10agreement does not need to specify the name of the donor but shall
11specify whether the donated gamete or gametes were eggs, sperm,
12or embryos, or all.

13(3) The identity of the intended parent or parents.

14(4) Disclosure of how the intended parents will cover the
15medical expenses of the gestational carrier and of the newborn or
16newborns. If health care coverage is used to cover those medical
17expenses, the disclosure shall include a review of the health care
18policy provisions related to coverage for surrogate pregnancy,
19including any possible liability of the gestational carrier, third-party
20liability liens or other insurance coverage, and any notice
21requirements that could affect coverage or liability of the
22gestational carrier. The review and disclosure do not constitute
23legal advice. If coverage of liability is uncertain, a statement of
24that fact shall be sufficient to meet the requirements of this section.

25(b) Prior to executing the written assisted reproduction
26 agreement for gestational carriers, a surrogate and the intended
27parent or intended parents shall be represented by separate
28independent licensed attorneys of their choosing.

29(c) The assisted reproduction agreement for gestational carriers
30shall be executed by the parties and the signatures on the assisted
31reproduction agreement for gestational carriers shall be notarized
32or witnessed by an equivalent method of affirmation as required
33in the jurisdiction where the assisted reproduction agreement for
34gestational carriers is executed.

35(d) The parties to an assisted reproduction agreement for
36gestational carriers shall not undergo an embryo transfer procedure,
37or commence injectable medication in preparation for an embryo
38transfer for assisted reproduction purposes, until the assisted
39reproduction agreement for gestational carriers has been fully
40executed as required by subdivisions (b) and (c) of this section.

P5    1(e) An action to establish the parent-child relationship between
2the intended parent or parents and the child as to a child conceived
3pursuant to an assisted reproduction agreement for gestational
4carriers may be filed before the child’s birth and may be filed in
5the county where the child is anticipated to be born, the county
6where the intended parent or intended parents reside, the county
7where the surrogate resides, the county where the assisted
8reproduction agreement for gestational carriers is executed, or the
9county where medical procedures pursuant to the agreement are
10to be performed. A copy of the assisted reproduction agreement
11for gestational carriers shall be lodged in the court action filed for
12 the purpose of establishing the parent-child relationship. The parties
13to the assisted reproduction agreement for gestational carriers shall
14attest, under penalty of perjury, and to the best of their knowledge
15 and belief, as to the parties’ compliance with this section in entering
16into the assisted reproduction agreement for gestational carriers.
17Submitting those declarations shall not constitute a waiver, under
18Section 912 of the Evidence Code, of the lawyer-client privilege
19described in Article 3 (commencing with Section 950) of Chapter
204 of Division 8 of the Evidence Code.

21(f) (1) A notarized assisted reproduction agreement for
22gestational carriers signed by all the parties, with the attached
23declarations of independent attorneys, and lodged with the superior
24court in accordance with this section, shall rebut any presumptions
25contained within Part 2 (commencing with Section 7540),
26subdivision (b) of Section 7610, and Sections 7611 and 7613, as
27to the gestational carrier surrogate, her spouse, or partner being a
28parent of the child or children.

29(2) Upon petition of any party to a properly executed assisted
30reproduction agreement for gestational carriers, the court shall
31issue a judgment or order establishing a parent-child relationship,
32whether pursuant to Section 7630 or otherwise. The judgment or
33order may be issued before or after the child’s or children’s birth
34subject to the limitations of Section 7633. Subject to proof of
35compliance with this section, the judgment or order shall establish
36the parent-child relationship of the intended parent or intended
37parents identified in the surrogacy agreement and shall establish
38that the surrogate, her spouse, or partner is not a parent of, and has
39no parental rights or duties with respect to, the child or children.
40The judgment or order shall terminate any parental rights of the
P6    1surrogate and her spouse or partner without further hearing or
2evidence, unless the court or a party to the assisted reproduction
3agreement for gestational carriers has a good faith, reasonable
4belief that the assisted reproduction agreement for gestational
5carriers or attorney declarations were not executed in accordance
6with this section. Upon motion by a party to the assisted
7reproduction agreement for gestational carriers, the matter shall
8be scheduled for hearing before a judgment or order is issued.
9Nothing in this section shall be construed to prevent a court from
10finding and declaring that the intended parent is or intended parents
11are the parent or parents of the child where compliance with this
12section has not been met; however, the court shall require sufficient
13proof entitling the parties to the relief sought.

14(g) The petition, relinquishment or consent, agreement, order,
15report to the court from any investigating agency, and any power
16of attorney and deposition filed in the office of the clerk of the
17court pursuant to this part shall not be open to inspection by any
18person other than the parties to the proceeding and their attorneys
19and the State Department of Social Services, except upon the
20written authority of a judge of the superior court. A judge of the
21superior court shall not authorize anyone to inspect the petition,
22relinquishment or consent, agreement, order, report to the court
23from any investigating agency, or power of attorney or deposition,
24or any portion of those documents, except in exceptional
25circumstances and where necessary. The petitioner may be required
26to pay the expense of preparing the copies of the documents to be
27inspected.

28(h) Upon the written request of any party to the proceeding and
29the order of any judge of the superior court, the clerk of the court
30shall not provide any documents referred to in subdivision (g) for
31inspection or copying to any other person, unless the name of the
32gestational carrier or any information tending to identify the
33gestational carrier is deleted from the documents or copies thereof.

34(i) An assisted reproduction agreement for gestational carriers
35executed in accordance with this section is presumptively valid
36and shall not be rescinded or revoked without a court order. For
37purposes of this part, any failure to comply with the requirements
P7    1of this section shall rebut the presumption of the validity of the
2assisted reproduction agreement for gestational carriers.



O

    96