Bill Text: CA AB2349 | 2015-2016 | Regular Session | Chaptered
Bill Title: Assisted reproduction agreements for gestational carriers.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2016-09-16 - Chaptered by Secretary of State - Chapter 385, Statutes of 2016. [AB2349 Detail]
Download: California-2015-AB2349-Chaptered.html
BILL NUMBER: AB 2349 CHAPTERED
BILL TEXT
CHAPTER 385
FILED WITH SECRETARY OF STATE SEPTEMBER 16, 2016
APPROVED BY GOVERNOR SEPTEMBER 16, 2016
PASSED THE SENATE AUGUST 15, 2016
PASSED THE ASSEMBLY AUGUST 22, 2016
AMENDED IN SENATE AUGUST 10, 2016
AMENDED IN ASSEMBLY MAY 23, 2016
AMENDED IN ASSEMBLY MARCH 31, 2016
AMENDED IN ASSEMBLY MARCH 18, 2016
INTRODUCED BY Assembly Member Chiu
(Coauthors: Assembly Members Eggman and Gordon)
FEBRUARY 18, 2016
An act to amend Sections 7613, 7620, and 7962 of the Family Code,
relating to assisted reproduction.
LEGISLATIVE COUNSEL'S DIGEST
AB 2349, Chiu. Assisted reproduction agreements for gestational
carriers.
The Uniform Parentage Act defines the parent and child
relationship as the legal relationship existing between a child and
the child's parents, governs proceedings to establish that
relationship, and establishes the jurisdiction of the courts under
the act. Existing law provides that a party to an assisted
reproduction agreement may bring an action under the act at any time
to establish a parent and child relationship consistent with the
intent expressed in that assisted reproduction agreement. Existing
law allows 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 to be filed before the child's birth and
specifies the counties where that action may be filed.
This bill would extend the jurisdiction of the courts under the
act to a proceeding to determine parentage of the child as to a child
who is conceived pursuant to an assisted reproduction agreement for
gestational carriers if certain conditions are satisfied, including
if the child is born in this state, or one or more of the parties to
the assisted reproduction agreement for gestational carriers resides
in this state or resided in this state at the time the assisted
reproduction agreement for gestational carriers was executed.
Existing law requires an assisted reproduction agreement for
gestational carriers to contain specified information, including the
persons from which the gametes originated, unless anonymously
donated.
This bill would instead require an assisted reproduction agreement
for gestational carriers to contain information regarding the
persons from whom the gametes originated, unless donated gametes were
used, in which case the agreement shall specify whether the donated
gamete or gametes were eggs, sperm, or embryos, or all.
Existing law provides that the donor of ova for use in assisted
reproduction by a woman other than the donor's spouse or partner is
treated in law as if she were not the natural parent of a child
thereby conceived, unless the court finds satisfactory evidence that
the donor and the woman intended for the donor to be a parent.
This bill would replace the term "woman" with "person" in those
provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares both of the
following:
(a) California courts already have subject matter jurisdiction
over actions involving an assisted reproduction agreement between a
surrogate and an intended parent or parents under Section 7630 of the
Family Code. However, current law does not explicitly provide that
California courts have subject matter jurisdiction or clearly explain
the circumstances under which subject matter jurisdiction exists.
(b) Many intended parents and surrogates enter into assisted
reproduction agreements in California in which one or more of the
parties end up living in another state. California court orders
regarding the parentage of a child born through surrogacy must be
given full faith and credit only if the issuing court had subject
matter jurisdiction. For these reasons, California has an interest in
clarifying that California courts have subject matter jurisdiction
over assisted reproduction agreements between a surrogate and an
intended parent or parents if one or more parties resides in
California, any medical procedures leading to conception occurs in
California, or the child is born in California.
SEC. 2. Section 7613 of the Family Code is amended to read:
7613. (a) If a woman conceives through assisted reproduction with
semen or ova or both donated by a donor not her spouse, with the
consent of another intended parent, that intended parent is treated
in law as if he or she were the natural parent of a child thereby
conceived. The other intended parent's consent shall be in writing
and signed by the other intended parent and the woman conceiving
through assisted reproduction.
(b) (1) The donor of semen provided to a licensed physician and
surgeon or to a licensed sperm bank for use in assisted reproduction
by a woman other than the donor's spouse is treated in law as if he
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 conception of the child.
(2) If the semen is not provided to a licensed physician and
surgeon or a licensed sperm bank as specified in paragraph (1), the
donor of semen for use in assisted reproduction by a woman other than
the donor's spouse is treated in law as if he were not the natural
parent of a child thereby conceived if either of the following are
met:
(A) The donor and the woman agreed in a writing signed prior to
conception that the donor would not be a parent.
(B) A court finds by clear and convincing evidence that the child
was conceived through assisted reproduction and that, prior to the
conception of the child, the woman and the donor had an oral
agreement that the donor would not be a parent.
(3) Paragraphs (1) and (2) do not apply to a man who provided
semen for use in assisted reproduction by a woman other than the man'
s spouse pursuant to a written agreement signed by the man and the
woman prior to conception of the child stating that they intended for
the man to be a parent.
(c) The donor of ova for use in assisted reproduction by a person
other than the donor's spouse or nonmarital partner is treated in law
as if the donor were not the natural parent of a child thereby
conceived unless the court finds satisfactory evidence that the donor
and the person intended for the donor to be a parent.
SEC. 3. Section 7620 of the Family Code is amended to read:
7620. (a) A person who has sexual intercourse or causes
conception with the intent to become a legal parent by assisted
reproduction in this state, or who enters into an assisted
reproduction agreement for gestational carriers in this state,
thereby submits to the jurisdiction of the courts of this state as to
an action brought under this part with respect to a child who may
have been conceived by that act of intercourse or assisted
reproduction, or who may have been conceived as a result of that
assisted reproduction agreement.
(b) If a child is conceived pursuant to an assisted reproduction
agreement for gestational carriers, as defined in Section 7960 and as
described in Section 7962, the courts of this state shall have
jurisdiction over a proceeding to determine parentage of the child if
any of the following conditions is satisfied:
(1) One or more of the parties to the assisted reproduction
agreement for gestational carriers resides in this state, or resided
in this state at the time the assisted reproduction agreement for
gestational carriers was executed.
(2) The medical procedures leading to conception, including in
vitro fertilization or embryo transfer, or both, were carried out in
this state.
(3) The child is born in this state.
(c) An action under this part shall be brought in one of the
following:
(1) The county in which the child resides or is found.
(2) 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.
(3) 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.
(4) 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.
(5) If the child was conceived pursuant to an assisted
reproduction agreement for gestational carriers, any county described
in subdivision (e) of Section 7962.
SEC. 4. Section 7962 of the Family Code is amended 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 donated
gametes were used, in which case the assisted reproduction agreement
does not need to specify the name of the donor but shall specify
whether the donated gamete or gametes were eggs, sperm, or embryos,
or all.
(3) The identity of the intended parent or parents.
(4) Disclosure of how the intended parents will cover the medical
expenses of the gestational carrier and of the newborn or newborns.
If health care coverage is used to cover those medical expenses, the
disclosure shall include a review of the health care policy
provisions related to coverage for surrogate pregnancy, including any
possible liability of the gestational carrier, third-party liability
liens or other insurance coverage, and any notice requirements that
could affect coverage or liability of the gestational carrier. The
review and disclosure do not constitute legal advice. If coverage of
liability is uncertain, a statement of that fact shall be sufficient
to meet the requirements of this section.
(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 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.
