BILL ANALYSIS Ó
AB 2349
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
2349 (Chiu)
As Amended August 10, 2016
Majority vote
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|ASSEMBLY: |78-0 |(May 31, 2016) |SENATE: |37-0 |(August 15, |
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Original Committee Reference: JUD.
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
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
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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
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
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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.
6)Clarifies when an egg donor is not considered a parent to
ensure appropriate gender neutrality of the donee.
The Senate amendments add the egg donor clarification.
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
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.
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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
e) The medical procedures pursuant to the agreement are to
be performed.
7)Provides that the donor of egg for use in assisted
reproduction by a woman other than the donor's spouse or
nonmarital partner is treated as if she were not the natural
parent of the child thereby conceived, unless the court finds
satisfactory evidence that the donor and the woman intended
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for the donor to be a parent.
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 United States (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 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
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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.
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
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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:
0003980