BILL ANALYSIS Ó
AB 2349
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2349
(Chiu) - As Amended March 18, 2016
As Proposed to be Amended
SUBJECT: ASSISTED REPRODUCTION AGREEMENTS: JURISDICTION AND
VENUE
KEY ISSUE: IN ORDER TO BETTER UPHOLD AND ENFORCE ASSISTED
REPRODUCTION AGREEMENTS, should THE JURISDICTION AND VENUE of
CALIFORNIA COURTS BE CLARIFIED?
SYNOPSIS
California has clear and supportive surrogacy laws and, as a
result, has become a "surrogacy-friendly" state, with
out-of-state intended parents coming to California to find
surrogates. This sometimes causes a shortage of Californians
willing to be surrogates, forcing some California intended
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parents to use out-of-state surrogates. As a result of this and
the fact that parentage of children born using surrogates must
generally be established in court, multiple courts may be
involved when surrogates and intended parents live in different
states or countries. Particularly when multiple courts could be
involved, issues of subject-matter jurisdiction, personal
jurisdiction and venue must be carefully clarified. This bill
seeks to do just that with respect to children conceived as a
result of California assisted reproduction agreements. This
bill is supported by Equality California and the National Center
for Lesbian Rights, who write that it will protect both
surrogates and intended parents and their children, regardless
of where they live or travel. There is no reported opposition.
SUMMARY: Clarifies, for assisted reproduction agreements, the
personal and subject matter jurisdiction and venue of California
courts. Specifically, this bill:
1)Provides that a person who enters into an assisted
reproduction agreement for gestational carriers (a surrogacy
agreement) in California submits to the jurisdiction of courts
in California for an action brought regarding a child who may
have been conceived by assisted reproduction as a result of
that agreement.
2)Provides that if a child is conceived using an assisted
reproduction agreement, as defined, California courts have
jurisdiction over a proceeding to determine parentage of that
child if one of the following is satisfied:
a) One or more of the parties to the agreement resides in
California or resided in California when the agreement was
executed;
b) The medical procedures leading to conception, including
in vitro fertilization or embryo transfer or both, were
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carried out in California; or
c) The child was born in California.
3)Provides that the proper venue for an action with respect to a
child conceived pursuant to an assisted reproduction agreement
for gestational carriers is any county where:
a) The child is anticipated to be born;
b) The intended parents reside;
c) The surrogate resides;
d) The assisted reproduction agreement for gestational
carriers is executed; or
e) The medical procedures pursuant to the agreement are to
be performed.
4)Requires that an assisted reproduction agreement for
gestational carriers contain, among other things, information
on the person from which the gametes originated, unless they
were donated, in which case, the agreement does not need to
specify the name of the donor, but must specify whether the
donated gametes were eggs, sperm, embryo or any combination.
EXISTING LAW:
1)Establishes the California Uniform Parentage Act. Defines a
parent and child relationship as the legal relationship
between a child and the child's natural or adoptive parents
incident to which the law confers or imposes rights,
privileges, duties and obligations. (Family Code Section 7600
et seq. Unless stated otherwise, all further statutory
references are to that code.)
2)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
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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. (Section
7606.)
3)Prohibits the parties to an assisted reproduction agreement
for gestational carriers, as defined, from undergoing an
embryo transfer or commencing injectable medicine prior to the
execution of the agreement. Requires that the parties to an
assisted reproduction agreement for gestational carriers be
represented by separate, independent counsel prior to the
signing of the agreement. Requires that the agreement include
the identity of the intended parents and, unless anonymously
donated, the persons from whom the gametes originate.
(Section 7962.)
4)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. Requires the court, upon petition by any party to
an assisted reproduction agreement for gestational carriers,
to issue an order establishing parentage. (Sections 7630,
7962.)
5)Provides that a person who has sexual intercourse or causes
conception with the intent to become a legal parent by
assisted reproduction in California submits to the
jurisdiction of courts in California with respect to an action
brought regarding a child who may have been conceived by that
act of intercourse or assisted reproduction. (Section 7620.)
6)Provides that the proper venue for an action with respect to a
child conceived through intercourse or assisted reproduction
is in one of the following counties:
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a) The county in which the child resides;
b) 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;
c) 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; or
d) 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. (Id.)
7)Provides that the proper venue for a parentage action with
respect to a child conceived through use of an assisted
reproduction agreement for gestational carriers, but not yet
born, is any county where:
a) The child is anticipated to be born;
b) The intended parents reside;
c) The surrogate resides;
d) The assisted reproduction agreement for gestational
carriers is executed; or
e) The medical procedures pursuant to the agreement are to
be performed. (Section 7962 (e).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: California has clear and supportive surrogacy laws
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and, as a result, has become a "surrogacy-friendly" state, with
out-of-state intended parents coming to California to find
surrogates. This sometimes causes a shortage of Californians
willing to be surrogates, forcing California intended parents to
use out-of-state surrogates. As a result of that and the fact
that parentage of children born using surrogates must generally
be established in court, multiple courts may be involved when
surrogates and intended parents live in different states or
countries. Particularly when multiple courts could be involved,
issues of subject-matter jurisdiction, personal jurisdiction and
venue must be carefully clarified. This bill seeks to do just
that with respect to children conceived as a result of
California assisted reproduction agreements.
In support of the bill, the author writes:
AB 2349 provides a much-needed clarification regarding the
jurisdiction of California courts. Although California
courts are courts of general jurisdiction, and our family
courts have taken jurisdiction over parentage
determinations in surrogacy cases in the past, advocates
for both surrogates and intended parents remain concerned
that absent something explicit in California's statutes, a
surrogate's home state may take jurisdiction to address
parentage and custody in a way that is inconsistent with
the surrogacy contract and with California's Family Code
Section 7962. Given that the child of California-intended
parents will be a California child, the state courts and
the Legislature have an interest in assuring that
California has jurisdiction to address the parentage of
these children up front. By making California's
jurisdiction over our gestational surrogacy cases explicit,
the California Legislature would be acting to affirmatively
protect families, including LGBT families, engaging in
assisted reproduction efforts in California from having
their parental rights infringed upon in another state.
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Brief explanation of jurisdiction and venue: This bill involves
subject-matter jurisdiction, personal jurisdiction, and venue so
a brief explanation of those legal provisions is in order.
Courts can only hear matters over which they have subject-matter
jurisdiction. Subject-matter jurisdiction is jurisdiction over
the issues, not the individuals, involved. There are three
types of subject-matter jurisdiction - general jurisdiction,
limited jurisdiction and exclusive jurisdiction. California
superior courts are general jurisdiction courts and can hear a
wide variety of cases. Limited jurisdiction courts, like small
claims court, can only hear certain matters, such as cases with
damages of $10,000 or less. Exclusive jurisdiction courts are
the only court entitled to hear certain matters, like federal
bankruptcy courts.
Personal jurisdiction gives courts the authority to decide
matters over particular individuals or entities. As a general
rule, California courts have personal jurisdiction over
individuals or entities who reside in California, do business in
California or are involved in events that occur in California.
However, courts are constitutionally prohibited from exercising
personal jurisdiction unless the individual or entity has
"minimum contacts" with the state. (International Shoe v.
Washington (1945) 326 U.S. 310.) Under that case, a state court
may only exercise personal jurisdiction over an individual if
that individual has sufficient minimum contacts with the state
such that the exercise of jurisdiction will not offend
"traditional notions of fair play and substantial justice."
(Id. at 316 (citations omitted).)
Even if a California court has jurisdiction to hear a particular
matter and has jurisdiction over parties involved, the action
must still be brought in the right branch of the court. An
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action involving an accident in one county must generally be
brought in a court in that county. Likewise, a dispute between
two parties who live in the same county must generally be
brought in a court in that county. This is the venue
determination. Venue is a strictly statutory requirement and
does not involve constitutional considerations.
California law carefully spells out rules and protections for
parties using assisted reproductions agreements to conceive
children. California case law has long made clear that even
without a genetic link, the parties who intended to bring a
child into the world are the child's legal parents. (Johnson v.
Calvert (1993) 5 Cal.4th 84; Marriage of Buzzanca (1998) 61
Cal.App.4th 1410).
In order to clarify the rights of all parties and to help
protect both intended parents and surrogates, the Legislature
passed AB 1217 (Fuentes), Chap. 466, Stats. 2012, which provides
various requirements for surrogacy agreements. First and
foremost, it requires that parties to an assisted reproduction
agreement for gestational carriers be represented by separate,
independent counsel prior to the signing of the agreement. This
helps ensure that all parties, but particularly the surrogate,
understand the terms of the arrangement and are protected from
possible harms. Parties to an assisted reproduction agreement
are also not permitted to undergo an embryo transfer or begin
fertility treatments prior to the execution of the agreement.
This ensures that all the terms of the agreement are spelled out
before medical intervention begins.
An action to establish a parent-child relationship for a child
conceived through surrogacy using an assisted reproduction
agreement may be filed prior to the birth of the child; and that
assisted reproduction agreement for gestational carriers,
executed in accordance with required provisions and filed with
the court, rebuts any presumption that the surrogate, and her
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spouse or partner, are the parents of the child. The court, in
this case, is required to issue a judgment establishing a
parent-child relationship for the intended parents. These
provisions provide protection and predictability for parties to
a surrogacy agreement, and help ensure that the parentage
arrangement of the parties, as set out in the surrogacy
agreement, is recognized by the court. And, because California
court orders are entitled to full, faith and credit by other
states, this helps ensure that the agreement of the parties is
recognized throughout the United States.
Concerns raised that a non-California court may not properly
enforce California assisted reproduction agreements. Obtaining
a pre-birth parentage order is particularly important for
intended parents using out-of-state surrogates. In these cases,
under the Uniform Child Custody and Enforcement Act (found in
California at Section 3400 et seq.), child custody is generally
decided in the child's home state, which is the birth state for
a newborn. (Section 3421.) As the result, if there is no
pre-birth order, another state may not recognize a California
surrogacy agreement and may not award parentage as set out in
that agreement. However, that state would be required to give
full, faith and credit to a California order establishing
parentage under the agreement, assuming the California court had
both subject-matter jurisdiction and personal jurisdiction.
Hence, this bill is needed to clarify the law and make explicit
that California courts have the jurisdiction necessary to hear
appropriate surrogacy agreement cases.
Recent U.S. Supreme Court case makes clear that orders issued by
a court of competent jurisdiction must be recognized by other
states. The need for California courts to have unequivocal
jurisdiction to decide matters involving California children and
families was made clear earlier this month when the United
States Supreme Court invalidated an Alabama Supreme Court
decision that refused to recognize a Georgia adoption order. In
that case, V.L. v. E.L. (2016) 577 U.S. __, involving a lesbian
couple in a long-term relationship, V.L. gave birth to three
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children and E.L. later adopted them in Georgia. Years later,
in a custody dispute in Alabama after the couple had separated,
the Alabama Supreme Court refused to recognize the properly
issued adoption order from Georgia, holding that the Georgia
court did not have subject-matter jurisdiction based on
Alabama's statutorily laws regarding adoption. The U.S. Supreme
Court, per curium, rejected that decision, holding instead that
Alabama was required to give full, faith and credit to the
properly issued Georgia adoption order: "The Georgia judgment
appears on its face to have been issued by a court with
jurisdiction, and there is no established Georgia law to the
contrary. It follows that the Alabama Supreme Court erred in
refusing to grant that judgment full faith and credit." (Id. at
p. 6.) Thus, as long as it is clear that our courts have
jurisdiction over assisted reproduction agreement cases, other
states who for whatever reason may disagree with our laws will
nevertheless be required to give our properly issued court
orders full, faith and credit.
This bill clarifies subject-matter jurisdiction, personal
jurisdiction and venue for courts with respect to assisted
reproduction agreements. To clarify the ability of California
courts to enforce California assisted reproduction agreements,
this bill does three main things. First, the bill provides
that, if a child is conceived using a California assisted
reproduction agreement, then California courts have
subject-matter jurisdiction over a proceeding to determine
parentage of that child if: (1) one or more of the parties to
the agreement resides in California or resided in California
when the agreement was executed; (2) the medical procedures
leading to conception, including in vitro fertilization or
embryo transfer or both, were carried out in California; or (3)
the child was born in California. This is consistent with
existing, though unpublished, case law, which recognizes that
California courts of general jurisdiction can hear these
matters. Second, it provides that a person who enters into a
surrogacy agreement in California submits to the jurisdiction of
courts in California for an action brought regarding a child who
may have been conceived by assisted reproduction as a result of
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that agreement. This ensures that California courts have
personal jurisdiction, and may adjudicate parentage, over
individuals who entered into the contract in California, and is
consistent with the required minimum contacts.
Lastly, for ease of determining where to bring these actions,
the bill provides that the proper venue for an action with
respect to a child conceived pursuant to an assisted
reproduction agreement for gestational carriers is any county
where (a) the child is anticipated to be born; (b) the intended
parents reside; (c) the surrogate resides; (d) the assisted
reproduction agreement for gestational carriers is executed; or
(e) the medical procedures pursuant to the agreement are to be
performed. These venue options are identical to existing law,
which specifies that these are the venue options for an action
brought under an assisted reproduction agreement for gestational
carriers. (Section 7962 (e).)
Author's proposed amendment to clarify personal jurisdiction:
Under current wording of the bill, it is unclear how personal
jurisdiction would apply to someone who entered into an assisted
reproduction agreement in California and could even be applied
to create personal jurisdiction over a child conceived using
assisted reproduction but not pursuant to the agreement. Since
this is not the author's intent, the author has rightly
requested that the bill be amended to provide personal
jurisdiction only with respect to a child conceived as a result
of the agreement. Thus the author proposes to amend Section
7620(a) in the bill as follows:
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
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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.
ARGUMENTS IN SUPPORT: Writing in support of the bill, Equality
California and the National Center for Lesbian Rights state:
A clear statement of California courts' jurisdiction over
parentage actions arising from surrogacy arrangements is
necessary to ensure that other states will respect these
orders. California courts already have jurisdiction over
these cases, but without a clear statement of jurisdiction,
questions can arise when courts of other states consider
these orders. Women entering into gestational surrogacy
arrangements in California - in an effort to assist
infertile and/or same-sex couples - need to know that the
California courts will protect them by enforcing orders
that come from California courts, which these surrogates
relied on in deciding to offer their services as
surrogates. And intended parents and their children need
to know that their parentage will be secure no matter where
they live or travel to.
REGISTERED SUPPORT / OPPOSITION:
Support
Equality California
National Center for Lesbian Rights
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Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334