BILL ANALYSIS                                                                                                                                                                                                    





                             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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