BILL ANALYSIS Ó AB 2349 Page 1 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 AB 2349 Page 2 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 AB 2349 Page 3 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 AB 2349 Page 4 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: AB 2349 Page 5 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 AB 2349 Page 6 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. AB 2349 Page 7 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 AB 2349 Page 8 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 AB 2349 Page 9 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 AB 2349 Page 10 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 AB 2349 Page 11 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 AB 2349 Page 12 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 AB 2349 Page 13 Opposition None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334