BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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