California Assembly Bill AB1217 Amended / Bill

 BILL NUMBER: AB 1217AMENDED 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.