BILL ANALYSIS Ó AB 2349 Page 1 ASSEMBLY THIRD READING AB 2349 (Chiu) As Amended May 23, 2016 Majority vote ------------------------------------------------------------------- |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+---------------------| |Judiciary |10-0 |Mark Stone, Wagner, | | | | |Alejo, Chau, Chiu, | | | | |Gallagher, | | | | | | | | | | | | | | |Cristina Garcia, | | | | |Holden, Maienschein, | | | | |Ting | | | | | | | | | | | | ------------------------------------------------------------------- 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 AB 2349 Page 2 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 AB 2349 Page 3 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 AB 2349 Page 4 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 AB 2349 Page 5 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 AB 2349 Page 6 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. AB 2349 Page 7 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