BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 2349


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          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