BILL NUMBER: AB 1217 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 24, 2012
AMENDED IN SENATE AUGUST 22, 2012
AMENDED IN SENATE AUGUST 6, 2012
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.
This bill would require a surrogate mother and the intended parent
or intended parents, as defined, to be represented by separate
independent counsel of their choosing prior to executing an assisted
reproduction agreement for gestational carriers, as defined. The bill
also would require an assisted reproduction agreement for
gestational carriers to contain specified information. The bill would
require the assisted reproduction agreement for gestational carriers
to be executed by the parties and notarized or otherwise witnessed,
as specified. The bill would prohibit the parties to an assisted
reproduction agreement for gestational carriers from undergoing an
embryo transfer procedure or commencing injectable medication for
assisted reproduction until the assisted reproduction agreement for
gestational carriers has been fully executed pursuant to the
requirements of these provisions. The bill would permit an action to
establish the parent-child relationship to be filed before the child'
s birth, and would specify where that action may be filed. The bill
would require the parties to the assisted reproduction agreement for
gestational carriers to attest, under penalty of perjury, and to the
best of their knowledge and belief, as to their compliance with these
provisions. By expanding the existing crime of perjury, the bill
would impose a state-mandated local program. The bill would provide
that an assisted reproduction agreement for gestational carriers
executed in accordance with these provisions is presumptively valid.
The bill would provide that the assisted reproduction agreement for
gestational carriers and related documents are not open to
inspection, except by the parties to the proceeding and their
attorneys and the State Department of Social Services, except as
specified.
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 ASSISTED REPRODUCTION
AGREEMENTS FOR GESTATIONAL CARRIERS
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) "Intended parent" means an individual, married or unmarried,
who manifests the intent to be legally bound as the parent of a child
resulting from assisted reproduction.
(d) "Nonattorney surrogacy facilitator" means a surrogacy
practitioner who is not an attorney in good standing licensed to
practice law in this state.
(e) "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.
(f) "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. Within the
definition of surrogate are two different and distinct types:
(1) "Traditional surrogate" means a woman who agrees to gestate an
embryo, in which the woman is the gamete donor and the embryo was
created using the sperm of the intended father or a donor arranged by
the intended parent or parents.
(2) "Gestational carrier" means a woman who is not an intended
parent and who agrees to gestate an embryo that is genetically
unrelated to her pursuant to an assisted reproduction agreement.
SEC. 3. Section 7962 is added to the Family Code, to read:
7962. (a) An assisted reproduction agreement for gestational
carriers shall contain, but shall not be limited to, all of the
following information:
(1) The date on which the assisted reproduction agreement for
gestational carriers was executed.
(2) The persons from which the gametes originated, unless
anonymously donated.
(3) The identity of the intended parent or parents.
(b) Prior to executing the written assisted reproduction agreement
for gestational carriers, a surrogate and the intended parent or
intended parents shall be represented by separate independent
licensed attorneys of their choosing.
(c) The assisted reproduction agreement for gestational carriers
shall be executed by the parties and the signatures on the assisted
reproduction agreement for gestational carriers shall be notarized or
witnessed by an equivalent method of affirmation as required in the
jurisdiction where the assisted reproduction agreement for
gestational carriers is executed.
(d) The parties to an assisted reproduction agreement for
gestational carriers shall not undergo an embryo transfer procedure,
or commence injectable medication in preparation for an embryo
transfer for assisted reproduction purposes, until the assisted
reproduction agreement for gestational carriers has been fully
executed as required by subdivisions (b) and (c) of this section.
(e) An action to establish the parent-child relationship between
the intended parent or parents and the child as to a child conceived
pursuant to an assisted reproduction agreement for gestational
carriers may be filed before the child's birth and may be filed in
the county where the child is anticipated to be born, the county
where the intended parent or intended parents reside, the county
where the surrogate resides, the county where the assisted
reproduction agreement for gestational carriers is executed, or the
county where medical procedures pursuant to the agreement are to be
performed. A copy of the assisted reproduction agreement for
gestational carriers shall be lodged in the court action filed for
the purpose of establishing the parent-child relationship. The
parties to the assisted reproduction agreement for gestational
carriers shall attest, under penalty of perjury, and to the best of
their knowledge and belief, as to the parties' compliance with this
section in entering into the assisted reproduction agreement for
gestational carriers. Submitting those declarations 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) (1) A notarized assisted reproduction agreement for
gestational carriers signed by all the parties, with the attached
declarations of independent attorneys, and lodged with the superior
court 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
gestational carrier 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 assisted reproduction agreement
for gestational carriers , 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 children's 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 assisted reproduction agreement for gestational
carriers has a good faith, reasonable belief that the assisted
reproduction agreement for gestational carriers or attorney
declarations were not executed in accordance with this section. Upon
motion by a party to the assisted reproduction agreement for
gestational carriers, 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.
(g) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition filed in the office of the clerk of the court
pursuant to this part shall not be open to inspection by any person
other than the parties to the proceeding and their attorneys and the
State Department of Social Services, except upon the written
authority of a judge of the superior court. A judge of the superior
court shall not authorize anyone to inspect the petition,
relinquishment or consent, agreement, order, report to the court from
any investigating agency, or power of attorney or deposition, or any
portion of those documents, except in exceptional circumstances and
where necessary. The petitioner may be required to pay the expense of
preparing the copies of the documents to be inspected.
(h) Upon the written request of any party to the proceeding and
the order of any judge of the superior court, the clerk of the court
shall not provide any documents referred to in subdivision (g) for
inspection or copying to any other person, unless the name of the
gestational carrier or any information tending to identify the
gestational carrier is deleted from the documents or copies thereof.
(i) An assisted reproduction agreement for gestational carriers
executed in accordance with this section is presumptively valid and
shall not be rescinded or revoked without a court order. For purposes
of this part, any failure to comply with the requirements of this
section shall rebut the presumption of the validity of the assisted
reproduction agreement for gestational carriers.
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.