BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2349|
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THIRD READING
Bill No: AB 2349
Author: Chiu (D)
Amended: 5/23/16 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/21/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
ASSEMBLY FLOOR: 78-0, 5/31/16 - See last page for vote
SUBJECT: Assisted reproduction agreements for gestational
carriers
SOURCE: Equality California
National Center for Lesbian Rights
DIGEST: This bill provides 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 also makes technical
changes to the requirements of an assisted reproduction
agreement for gestational carriers.
ANALYSIS:
AB 2349
Page 2
Existing law:
1)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.)
2)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.)
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
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.)
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, and requires the court, upon petition by any party
to an assisted reproduction agreement for gestational
carriers, to issue an order establishing parentage. (Fam.
Code Secs. 7630, 7962.)
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. (Fam. Code Sec.
AB 2349
Page 3
7620.)
6)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.)
1)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:
1)Provides that a person who enters into an assisted
reproduction agreement for gestational carriers (i.e., 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.
AB 2349
Page 4
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:
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.
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:
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.
1)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.
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
AB 2349
Page 5
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
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, Chapter 185,
Statutes of 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, Chapter 510, Statutes
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of 2013) to update the Uniform Parentage Act 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,
Chapter 636, Statutes of 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.
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, clarifies when the
court may exercise subject matter jurisdiction over a child or
parties to an assisted reproduction agreement for gestational
carriers.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/23/16)
Equality California
National Center for Lesbian Rights
OPPOSITION: (Verified6/23/16)
None received
ARGUMENTS 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
AB 2349
Page 7
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."
ASSEMBLY FLOOR: 78-0, 5/31/16
AYES: Achadjian, Alejo, Arambula, Atkins, Baker, Bigelow,
Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,
Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh,
Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Travis Allen, Gallagher
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
6/24/16 15:50:26
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