BILL NUMBER: AB 1217 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 11, 2012
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 7960 of, 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
agreements .
LEGISLATIVE COUNSEL'S DIGEST
AB 1217, as amended, Fuentes. 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
This bill would require, in the case of
when executing a surrogacy agreement, a
surrogate mother and the intended parent or intended
parents to be represented by separate independent counsel
of their choosing. Before the surrogate mother could begin medication
for assisted reproduction, this the
bill would require the parties' counsel to review the surrogacy
agreement and its ramifications with the surrogate mother and the
intended parent or intended parents. Counsel would
be required The bill would require counsel for each
party to the surrogacy agreement to issue legal
clearance letters to the reproductive endocrinologist following that
review a statement to the treating physician that the
surrogacy agreement complies with Section 7962 of the Family Code
. The bill would require the surrogacy agreement to be executed
by the parties and notarized or otherwise witnessed, as
specified . This The 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 provide specific
requirements for where the surrogacy agreement may be filed. The
bill would provide that a surrogacy agreement that
does not meet meets the above requirements would
not be presumptively valid. The bill would
require, upon request by a party to the surrogacy agreement, that the
court seal all documents that list the identities of the parties.
Because this bill would require the declarations accompanying
the surrogacy agreement to be made under penalty of perjury,
it the bill would expand the class of
people persons who could be prosecuted for a
crime , and thereby impose a state-mandated local program
.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: 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 7960 of the Family Code
is amended to read:
7960. For purposes of this part, the following terms have the
following meanings:
(a) "Assisted reproduction agreement" has the same meaning as
defined in subdivision (b) of Section 7606.
(b) "Fund management agreement" means the agreement between the
intended parents and the surrogacy facilitator relating to the fee or
other valuable consideration for services rendered or that will be
rendered by the surrogacy facilitator.
(c) "Nonattorney surrogacy facilitator" means a surrogacy
practitioner who is not an attorney in good standing licensed to
practice law in this state.
(a)
(d) "Surrogacy facilitator" means a person or
organization that engages in either of the following activities:
(1) Advertising for the purpose of soliciting parties to an
assisted reproduction agreement or acting as an intermediary between
the parties to an assisted reproduction agreement.
(2) Charging a fee or other valuable consideration for services
rendered relating to an assisted reproduction agreement.
(b) "Nonattorney surrogacy facilitator" means a surrogacy
practitioner who is not an attorney in good standing licensed to
practice law in this state.
(c) "Assisted reproduction agreement" has the same meaning as
defined in subdivision (b) of Section 7606.
(d) "Fund management agreement" means the agreement between the
intended parents and the surrogacy facilitator relating to the fee or
other valuable consideration for services rendered or that will be
rendered by the surrogacy facilitator.
(e) "Surrogate" means a woman who bears and carries a child for
another through medically assisted reproduction and pursuant to a
written agreement, as set forth in Sections 7606 and 7962.
SEC. 2. SEC. 3. 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
7962. (a) Prior to
executing the written surrogacy agreement, a surrogate and
the intended parent or intended parents shall be
represented by separate independent counsel
licensed attorneys of their choosing. After
reviewing the parties' surrogacy agreement and its ramifications with
their respective clients, counsels each
attorney representing a party to the surrogacy agreement shall
issue a written legal clearance letters
statement to the reproductive endocrinologist
treating physician in the assisted reproductive
undertaking that the agreement was executed in conformity with this
section. Providing this written statement shall not constitute a
waiver, under Section 912 of the Evidence Code, of the lawyer-client
privilege described in Article 3 (commencing with Section 950) of
Chapter 4 of Division 8 of the Evidence Code .
(c)
(b) The surrogacy agreement shall be executed by the
parties and the signatures on the surrogacy agreement
shall be notarized or witnessed by an equivalent method of
affirmation as required in the jurisdiction where the surrogacy
agreement is executed .
(d)
(c) 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 undergo
artificial insemination, an embryo transfer procedure, or commence
injectable medication in preparation for an embryo transfer or
artificial insemination for assisted reproduction purposes until the
requirements of subdivisions (a) and (b) are met .
(e) At the time that the parties seek to establish
(d) To request 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
where the child is anticipated to be born, the county
in which the intended parent or intended parents reside, the county
where the surrogate resides, or the county where the surrogacy
agreement is executed. The parties shall attest, under penalty of
perjury, and to the best of their knowledge and belief, to the
surrogacy agreement's compliance with this section. Submitting this
declaration shall not constitute a waiver, under Section
912 of the Evidence Code, of the lawyer -client privilege
described in Article 3 (commencing with Section 950) of Chapter 4 of
Division 8 of the Evidence Code .
(f)
(e) (1) A surrogacy
agreement that is not executed in accordance with this
section shall not be considered presumptively valid
executed in accordance with this section shall rebut any presumptions
contained within Part 2 (commencing with Section 7540), subdivision
(b) of Section 7610, and Sections 7611 and 7613, as to the surrogate,
her spouse, or partner being a parent of the child or children
.
(2) Upon petition of any party to a properly executed surrogacy
agreement, the court shall issue a judgment or order establishing a
parent-child relationship, whether pursuant to Section 7630 or
otherwise. The judgment or order may be issued before or after the
child's or childrens' birth subject to the limitations of Section
7633. Subject to proof of compliance with this section, the judgment
or order shall establish the parent-child relationship of the
intended parent or intended parents identified in the surrogacy
agreement and shall establish that the surrogate, her spouse, or
partner is not a parent of, and has no parental rights or duties with
respect to, the child or children. The judgment or order shall
terminate any parental rights of the surrogate and her spouse or
partner without further hearing or evidence, unless the court or a
party to the surrogacy agreement has a good faith, reasonable belief
that the surrogacy agreement or attorney declarations were not
executed in accordance with this section. Upon motion by a party to
the surrogacy agreement, the matter shall be scheduled for hearing
before a judgment or order is issued. Nothing in this section shall
be construed to prevent a court from finding and declaring that the
intended parent is or intended parents are the parent or parents of
the child where compliance with this section has not been met;
however, the court shall require sufficient proof entitling the
parties to the relief sought.
(f) Upon request by a party to a surrogacy agreement for a
petition to establish a parent-child relationship pursuant to this
section, the court shall order all pleadings and documents that list
the identities of the parties sealed. The request may be made
concurrently with the submission of a proposed judgment packet, or
upon ex parte application. Documents sealed pursuant to this section
shall only be unsealed upon petition to the court with good cause
shown.
(g) A surrogacy agreement executed in accordance with this section
is presumptively valid and shall not be rescinded or revoked without
a court order.
SEC. 3. SEC. 4. 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.