Amended in Senate August 10, 2016

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 Bill No. 2349

Introduced by Assembly Member Chiu

(Coauthors: Assembly Members Eggman and Gordon)

February 18, 2016

An act to amend Sections begin delete 7620 end delete begin insert 7613, 7620, end insert 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.

begin insert

Existing law provides that the donor of ova for use in assisted reproduction by a woman other than the donor’s spouse or partner is treated in law as if she were not the natural parent of a child thereby conceived, unless the court finds satisfactory evidence that the donor and the woman intended for the donor to be a parent.

end insert begin insert

This bill would replace the term “woman” with “person” in those provisions.

end insert

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

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

SECTION 1.  

The Legislature finds and declares both of the
following:

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

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

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 7613 of the end insert begin insert Family Code end insert begin insert is amended to read: end insert

7613.  

(a) If a woman conceives through assisted reproduction
with semen or ova or both donated by a donor not her spouse, with
the consent of another intended parent, that intended parent is
treated in law as if he or she were the natural parent of a child
thereby conceived. The other intended parent’s consent shall be
in writing and signed by the other intended parent and the woman
conceiving through assisted reproduction.

(b) (1) The donor of semen provided to a licensed physician
and surgeon or to a licensed sperm bank for use in assisted
reproduction by a woman other than the donor’s spouse is treated
in law as if he were not the natural parent of a child thereby
conceived, unless otherwise agreed to in a writing signed by the
donor and the woman prior to the conception of the child.

(2) If the semen is not provided to a licensed physician and
surgeon or a licensed sperm bank as specified in paragraph (1),
the donor of semen for use in assisted reproduction by a woman
other than the donor’s spouse is treated in law as if he were not
the natural parent of a child thereby conceived if either of the
following are met:

(A) The donor and the woman agreed in a writing signed prior
to conception that the donor would not be a parent.

(B) A court finds by clear and convincing evidence that the
child was conceived through assisted reproduction and that, prior
to the conception of the child, the woman and the donor had an
oral agreement that the donor would not be a parent.

(3) Paragraphs (1) and (2) do not apply to a man who provided
semen for use in assisted reproduction by a woman other than the
man’s spouse pursuant to a written agreement signed by the man
and the woman prior to conception of the child stating that they
intended for the man to be a parent.

(c) The donor of ova for use in assisted reproduction by a begin delete woman end delete
begin insert person end insert other than the donor’s spouse or nonmarital partner is
treated in law as if begin delete she end delete begin insert the donor end insert were not the natural parent of a
child thereby conceived unless the court finds satisfactory evidence
that the donor and the begin delete woman end delete begin insert person end insert intended for the donor to be
a parent.

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 7620 of the Family Code is amended to read:

7620.  

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

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

(1) 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.

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

(3) The child is born in this state.

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

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

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

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

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

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

begin delete SEC. 3. end delete

begin insert SEC. 4. end insert   

Section 7962 of the Family Code is amended to read:

7962.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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