BILL ANALYSIS Ó
AB 2349
Page 1
ASSEMBLY THIRD READING
AB
2349 (Chiu)
As Amended May 23, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+---------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
| | | | |
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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
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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
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
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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.
5)Adds legislative intent language on the existing subject
matter jurisdiction of California courts regarding assisted
reproduction agreements and the need to clarify that
California courts have jurisdiction in cases involving
assisted reproduction agreements when one or more parties may
no longer live in California.
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.
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
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.
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
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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.
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.
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.
6)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
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e) The medical procedures pursuant to the agreement are to
be performed.
FISCAL EFFECT: None
COMMENTS: 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 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.
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
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
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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
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.
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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: 1) the child is anticipated to be born; 2) the intended
parents reside; 3) the surrogate resides; 4) the assisted
reproduction agreement for gestational carriers is executed; or
5) 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.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0003032