BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2349 (Chiu)
Version: May 23, 2016
Hearing Date: June 21, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Assisted reproduction agreements for gestational carriers
DESCRIPTION
This bill would provide that California has subject matter
jurisdiction to determine parentage of a child conceived
pursuant to an assisted reproduction agreement for gestational
carriers if certain conditions are satisfied, including that the
child is born in California, or one or more of the parties to
the agreement reside in California or resided in California when
the agreement was executed.
This bill would also make technical changes to the requirements
of an assisted reproduction agreement for gestational carriers.
BACKGROUND
It is the policy of the State of California to establish
paternity for all children. The establishment of paternity
provides children with equal rights and access to benefits such
as health insurance, child support, and inheritance. (Fam. Code
Sec. 7570.) Under existing law, a child born during a marriage
to a wife who lives with her husband is conclusively presumed to
be the child of the marriage. (Fam. Code Sec. 7540.) For a
child born outside of a marriage, paternity may be established
by a voluntary declaration of paternity or through another legal
presumption of paternity. (Fam. Code Secs. 7573, 7611.) In the
event that two or more presumptions of paternity arise, the
court is required to find in favor of the presumption which on
the facts is founded on the weightier considerations of policy
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and logic. (Fam. Code Sec. 7612.)
For most heterosexual couples, conception is achieved with the
woman's own eggs and the sperm of her male partner, making
parental identity straightforward. However, individuals and
couples are increasingly using assisted reproduction technology,
which can rely upon donor sperm, donor eggs, donor embryos, and
host wombs, thereby requiring the legal concept of parentage to
evolve. Generally, donors of genetic material are treated under
law as though they are not the parents of a child conceived from
that material. For example, California's Family Code treats
sperm donors who are not married to the woman who conceives
using the donor's sperm as "if he were not the natural father of
the child thereby conceived, unless otherwise agreed to by the
woman and donor in writing prior to conception of the child.
(Fam. Code Sec. 7613(b).) In most of these cases, the law
instead looks to the "intended parents," as defined by the
California Supreme Court in Buzzanca v. Buzzanca (1998) 61
Cal.App.4th 1410, which held that, regardless of who provides
the eggs, sperm or uterus, the intended parent(s) are "the first
cause, prime movers, of the procreative relationship." (Id. at
1424.) Thus, a parental relationship is often established at the
time medical procedures are initiated and consented to by the
intended parent(s), even in the absence of any biological
relationship between them and the child(ren) created. In other
situations, courts will look to an adult who has functioned as a
parent to the child, and determine whether he or she fits an
existing presumption under California law.
The definition of what constitutes a family, or how a family is
created has been the source of legal tension which the
Legislature has sought to address. AB 1349 (Hill, Ch. 185,
Stats. 2011) distinguished between known sperm donors who
planned to co-parent with the mother and more traditional sperm
donors who gave their genetic material without any expectation
of parenting the child conceived. In 2013, the Legislature
enacted AB 1403 (Committee on Judiciary, Ch. 510, Stats. 2013)
to update the Uniform Parentage Act (UPA) by codifying case law
which has applied presumptions of parentage neutrally with
regards to gender, and make the Act's provisions gender neutral
where appropriate. SB 115 (Hill, 2013) sought to clarify how
presumptions of parentage work in situations where an individual
is both a presumed father and a sperm donor. AB 2344 (Ammiano,
Ch. 636, Stats. 2014) created three optional forms to allow
intended parents to state their intention, in writing, to parent
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a child conceived with the use of assisted reproduction.
This bill, seeking to ensure that California court orders are
respected in other states and that California maintains the
ability to determine parentage in the event that a party to an
assisted reproduction agreement for gestational carriers (i.e.,
surrogacy agreement) resides out-of-state, would clarify when
the court may exercise subject matter jurisdiction over a child
or parties to an assisted reproduction agreement for gestational
carriers.
CHANGES TO EXISTING LAW
Existing law establishes the California Uniform Parentage Act,
and 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. (Fam. Code Sec. 7600 et
seq.)
Existing law defines "assisted reproduction" as conception by
any means other than sexual intercourse, and 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. (Fam. Code
Sec. 7606.)
Existing law 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, and 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. (Fam. Code Sec. 7962.)
Existing law 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, and requires the court, upon petition by any
party to an assisted reproduction agreement for gestational
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carriers, to issue an order establishing parentage. (Fam. Code
Secs. 7630, 7962.)
Existing law povides 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. (Fam. Code Sec. 7620.)
Existing law 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:
the county in which the child resides;
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;
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
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. (Fam. Code Sec.
7620.)
Existing law 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:
the child is anticipated to be born;
the intended parents reside;
the surrogate resides;
the assisted reproduction agreement for gestational
carriers is executed; or
the medical procedures pursuant to the agreement are to
be performed. (Fam. Code Sec. 7962 (e).)
This bill would provide that a person who enters into an
assisted reproduction agreement for gestational carriers (i.e.,
a surrogacy agreement) in California submits to the jurisdiction
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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 bill would provide 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:
one or more of the parties to the agreement resides in
California or resided in California when the agreement was
executed;
the medical procedures leading to conception, including
in vitro fertilization or embryo transfer or both, were
carried out in California; or
the child was born in California.
This bill would provide 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:
the child is anticipated to be born;
the intended parents reside;
the surrogate resides;
the assisted reproduction agreement for gestational
carriers is executed; or
the medical procedures pursuant to the agreement are to
be performed.
This bill would require 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.
COMMENT
1.Stated need for the bill
According to the author:
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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.
2.Will create consistency and predictability for families using
assisted reproduction
Courts may only hear matters over which they have jurisdiction.
Subject matter jurisdiction relates to the issues before the
court, and personal jurisdiction relates to the individual.
California courts are of general jurisdiction which can hear a
wide variety of cases over individuals who reside in California,
do business in California, or are involved in events that take
place in California. Courts are constitutionally required to
find that an individual has minimum contacts with a state, such
that the exercise of personal jurisdiction will not offend
"traditional notions of fair play and substantial justice."
(International Shoe v. Washington (1945) 326 U.S. 310.) In
addition to jurisdiction, a court may not hear a case if the
venue is improper. Proper venue generally requires that an
action must be brought in a court in the county where a party
resides or the event giving rise to suit took place.
This bill provides that the court has subject matter
jurisdiction over any person who signed a surrogacy agreement in
California and any child who was thereby conceived.
Specifically, this bill provides that the court has subject
matter jurisdiction to determine parentage if any of the
following are met: (1) one or more of the parties to the
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agreement resided in California when the agreement was executed;
(2) the medical procedures leading to conception were performed
in California; or (3) the child was born in California.
Similarly, this bill would establish proper venue in the county
where an assisted reproduction agreement for gestational
carriers was executed, where either party resides, where the
medical procedures took place, or where the child is anticipated
to be born.
The U.S Constitution, requires that states give "full faith and
credit" to the public acts, records, and judicial proceedings of
every other state. In other words, valid court orders issued in
any state (i.e., the jurisdictional requirements, venue
requirements, and law were properly followed), must be
acknowledged by other states. Thus, to the extent that a
non-California court may not recognize or properly enforce
California assisted reproduction agreements or related court
orders, by clarifying subject matter jurisdiction and venue
requirements, this bill will ensure that couples using an
out-of-state surrogate may have the parentage of any resulting
child determined in California or pursuant to a California
pre-birth court order establishing parentage.
In support, Equality California writes, "a clear statement of
California courts' jurisdiction over parentage actions arising
from surrogacy agreements 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 agreements 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
came 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."
Support : Equality California; National Center for Lesbian
Rights
Opposition : None Known
HISTORY
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Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 960 (Chiu, Ch. 566, Stats. 2015) created uniform rules for
intended parents, regardless of gender and/or marital status,
and updated the optional, statutory assisted reproduction forms
to be consistent with the provisions of this bill.
AB 2344 (Ammiano, Ch. 636, Stats. 2014) created three optional
forms to allow intended parents to state their intention, in
writing, to parent a child conceived with the use of assisted
reproduction.
AB 1217 (Fuentes, Chapter 466, Statutes of 2012) required a
surrogate mother and the intended parent(s), each represented by
independent counsel, to execute a notarized or witnessed
surrogacy agreement before the mother can begin medication for
assisted reproduction.
AB 2356 (Skinner, Chapter 699, Statutes of 2012) excepted sperm
donated by a sexually intimate partner of the recipient from
second or repeat testing, as specified, if the recipient is
informed of the testing requirements and signs a written waiver.
Defined "sexually intimate partner" to include a known or
designated donor to whose sperm the recipient had previously
been exposed in a nonmedical setting in an attempt to conceive.
AB 1349 (Hill, Chapter 185, Statutes of 2011) provided that a
voluntary declaration of paternity is invalid under specified
circumstances, allowed a presumed parent to bring a motion set
aside the voluntary declaration within a specified amount of
time, and provided that a sperm donor would not be considered
the natural father unless otherwise agreed to in writing.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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