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), et al.
          Amended:  8/10/16 in Senate
          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:    Author


          DIGEST:  This bill provides that California has subject matter  
          jurisdiction to determine parentage of a child for a child  
          conceived pursuant to an assisted reproduction agreement for  
          gestational carriers if certain conditions are satisfied,  
          including: (1) the child is born in California; or (2) 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. 

          Senate Floor Amendments of 8/10/16 replace gendered terms with  
          non-gendered terms in Family Code Section 7613, which deals with  
          conception through assisted reproduction with donated genetic  
          material. 









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          ANALYSIS:  


          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  







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            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.)


          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.   (Section 7962 (e).)


          This bill: 


          1)Provides that a person who enters into an assisted  
            reproduction agreement for gestational carriers (i.e., a  







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            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.


          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.

          1)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  







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          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  
          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.) Therefore, a parental relationship is often established  
          when 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  







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          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  
          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:   (Verified8/9/16)


          Academy of California Adoption Lawyers
          American Civil Liberties Union of California
          The Anti-Defamation League 
          Equality California
          National Center for Lesbian Rights
          Our Family Coalition


          OPPOSITION:   (Verified8/9/16)







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          None received


          ARGUMENTS IN SUPPORT:     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."   


          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
          8/15/16 9:21:42


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