California Assembly Bill AB1217 Amended / Bill

 BILL NUMBER: AB 1217AMENDED 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.