BILL NUMBER: AB 1217 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 9, 2012
AMENDED IN SENATE JUNE 20, 2011
AMENDED IN ASSEMBLY MAY 9, 2011
AMENDED IN ASSEMBLY APRIL 26, 2011
AMENDED IN ASSEMBLY APRIL 14, 2011
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 18, 2011
An act to amend Section 7613 of, and to add Sections
7613.5 and 7962 to, the Family Code, relating to assisted
reproduction. An act to amend the heading of Part 7
(commencing with Section 7960) of Division 12 of, and to add Section
7962 to, the Family Code, relating to surrogacy.
LEGISLATIVE COUNSEL'S DIGEST
AB 1217, as amended, Fuentes. Assisted reproduction.
Surrogacy agreements.
The Uniform Parentage Act defines the parent and child
relationship as the legal relationship existing between a child and
the child's parents, and governs proceedings to establish that
relationship. Existing law provides that a party to an assisted
reproduction agreement may bring an action under the Uniform
Parentage Act at any time to establish a parent and child
relationship consistent with the intent expressed in the agreement.
Existing law also regulates the practice of surrogacy facilitators in
assisted reproduction agreements, including surrogacy agreements.
The bill would require, in the case of a surrogacy agreement, a
surrogate mother and the intended parent or parents to be represented
by independent counsel of their choosing. Before the surrogate
mother could begin medication for assisted reproduction, this bill
would require the parties' counsel to review the surrogacy agreement
and its ramifications with the surrogate mother and the intended
parent or parents. Counsel would be required to issue legal clearance
letters to the reproductive endocrinologist following that review.
The bill would require the surrogacy agreement to be executed by the
parties and notarized. This bill would require the surrogacy
agreement to be lodged in the superior court in the county in which
the child is to be born, and would require the agreement to be
accompanied by declarations of its legitimacy. Further, this bill
would provide that a surrogacy agreement that does not meet the above
requirements would not be presumptively valid. Because this bill
would require the declarations accompanying the surrogacy agreement
to be made under penalty of perjury, it would expand the class of
people who could be prosecuted for a crime.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The Uniform Parentage Act provides that if, under the supervision
of a licensed physician and surgeon and with the consent of her
husband, a wife is inseminated artificially with semen donated by a
man not her husband, the husband is treated in law as if he were the
natural father of a child thereby conceived. The act further provides
that the donor of semen provided to a licensed physician and surgeon
or to a licensed sperm bank for use in artificial insemination or in
vitro fertilization of a woman other than the donor's wife is
treated in law as if he were not the natural father of a child
thereby conceived.
This bill would provide that if agreed to in a writing signed by
the donor and the woman prior to the creation of the embryo, the
donor would be presumed to be the natural father of the child.
The bill would also specify that if, under the supervision of a
licensed physician and surgeon and with the consent of her spouse, a
woman undergoes an embryo transfer with eggs donated by a person
other than her spouse, the spouse is treated in law as if that spouse
were the natural parent of a child thereby conceived, unless
otherwise agreed to in writing prior to the conception of the child.
The bill would specify that if that embryo transfer was on behalf of
an intended parent or parents and the woman agrees in writing prior
to the creation of the embryo, then that woman would be treated in
law as if she were not the natural parent of a child thereby
conceived, and the intended parent or parents would be presumed to be
the child's natural parent or parents.
Existing law regulates the practice of surrogacy facilitators, as
defined, and requires a nonattorney surrogacy facilitator to direct
his or her client to deposit client funds in an independent, bonded
escrow account or a trust account maintained by an attorney, subject
to specified withdrawal requirements.
The bill would also prohibit a medical or legal professional from
medically treating or legally representing an intended parent or
surrogate mother while acting as a surrogacy facilitator for either
party or having an ownership interest in a surrogacy facilitator.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Part 7 (commencing with
Section 7960) of Division 12 of the Family Code
is amended to read:
PART 7. SURROGACY FACILITATORS AND AGREEMENTS
SEC. 2. Section 7962 is added to the
Family Code , to read:
7962. (a) For purposes of this part, "surrogate" means a woman
carrying and bearing a child for another.
(b) A surrogate and the intended parent or parents shall be
represented by independent counsel of their choosing. After reviewing
the parties' surrogacy agreement and its ramifications with their
respective clients, counsels shall issue written legal clearance
letters to the reproductive endocrinologist.
(c) The surrogacy agreement shall be executed by the parties and
the signatures on the agreement shall be notarized.
(d) A surrogate shall not be permitted to commence medication for
assisted reproduction until the written legal clearance letters
required under subdivision (b) are issued and the surrogacy agreement
is executed and notarized.
(e) At the time that the parties seek to establish a parent-child
relationship prior to the child's birth, the surrogacy agreement
shall be lodged in the superior court in the county where the child
will be born. The parties and their counsels shall attest to its
legitimacy under penalty of perjury.
(f) A surrogacy agreement that is not executed in accordance with
this section shall not be considered presumptively valid.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 7613 of the Family Code is
amended to read:
7613. (a) If, under the supervision of a licensed physician and
surgeon and with the consent of her husband, a wife is inseminated
artificially with semen donated by a man not her husband, the husband
is treated in law as if he were the natural father of a child
thereby conceived. The husband's consent must be in writing and
signed by him and his wife. The physician and surgeon shall certify
their signatures and the date of the insemination, and retain the
husband's consent as part of the medical record, where it shall be
kept confidential and in a sealed file. However, the physician and
surgeon's failure to do so does not affect the father and child
relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by
the supervising physician and surgeon or elsewhere, are subject to
inspection only upon an order of the court for good cause shown.
(b) The donor of semen provided to a licensed physician and
surgeon or to a licensed sperm bank for use in artificial
insemination or in vitro fertilization of a woman other than the
donor's wife is treated in law as if he were not the natural father
of a child thereby conceived, unless otherwise agreed to in a writing
signed by the donor and the woman prior to the creation of the
embryo, in which case the donor is presumed to be the natural father
of the child.
SEC. 2. Section 7613.5 is added to the Family
Code, to read:
7613.5. (a) Except as otherwise provided in subdivision (c), if,
under the supervision of a licensed physician and surgeon and with
the consent of her spouse, a woman undergoes an embryo transfer using
donated eggs from a person other than her spouse, that spouse is
treated in law as if that spouse were the natural parent of a child
thereby conceived. The spouse's consent must be in writing and signed
by both the woman and her spouse. The physician and surgeon shall
certify their signatures and the date of the in vitro fertilization,
and retain the spouse's consent as part of the medical record, where
it shall be kept confidential and in a sealed file. However, the
physician and surgeon's failure to do so does not affect the
parent-child relationship. All papers and records pertaining to the
in vitro fertilization, whether part of the permanent record of a
court or of a file held by the supervising physician and surgeon or
elsewhere, are subject to inspection only upon an order of the court
for good cause shown.
(b) The donor of eggs provided to a licensed physician and surgeon
for use in the in vitro fertilization of a woman other than the
donor's spouse is treated in law as if she were not the natural
parent of a child thereby conceived, unless otherwise agreed to in a
writing signed by the donor and the woman prior to the creation of
the embryo, in which case the donor is presumed to be the natural
parent of the child. The writing shall be signed by both the donor
and the woman. The physician and surgeon shall certify their
signatures and the date of the in vitro fertilization, and retain the
writing as part of the medical record, and it shall be kept in a
confidential sealed file. However, the physician and surgeon's
failure to do so does not affect the parent-child relationship. All
papers and records pertaining to the in vitro fertilization,
including the permanent record of a court and any file held by the
supervising physician and surgeon, shall be subject to inspection
only upon an order of the court for good cause shown.
(c) If, under the supervision of a licensed physician and surgeon,
a woman undergoes an embryo transfer using donated eggs on behalf of
an intended parent or parents and the woman agrees in a writing
signed by the woman and the intended parent or parents prior to the
creation of the embryo, then the woman is treated in law as if she
were not the natural parent of the child and the intended parent or
parents are presumed to be the child's natural parent or parents. The
writing shall be signed by both the donor and the woman. The
physician and surgeon shall certify their signatures and the date of
the in vitro fertilization, and retain the writing as part of the
medical record, and it shall be kept in a confidential sealed file.
However, the physician and surgeon's failure to do so does not affect
the parent-child relationship. All papers and records pertaining to
the in vitro fertilization, including the permanent record of a court
and any file held by the supervising physician and surgeon, shall be
subject to inspection only upon an order of the court for good cause
shown.
SEC. 3. Section 7962 is added to the Family
Code, to read:
7962. To avoid a conflict of interest, a medical or legal
professional shall not medically treat or legally represent an
intended parent or surrogate mother while acting as a surrogacy
facilitator for either party or having an ownership interest in a
surrogacy facilitator, including being an owner or coowner of, or
having a financial interest in, the surrogacy facilitator that has
recruited either party.