Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing 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. Existing law requires the judgment or order to terminate any parental rights of the surrogate and her spouse or partner without further hearing or evidence, unless specified conditions are met.

This bill would delete this reference to the parental rights of the surrogate and her spouse or partner and would instead require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing 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. Existing law requires the judgment or order to terminate any parental rights of the surrogate and her spouse or partner without further hearing or evidence, unless specified conditions are met.

This bill would delete this reference to the parental rights of the surrogate and her spouse or partner and would instead require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing 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. Existing law requires the judgment or order to terminate any parental rights of the surrogate and her spouse or partner without further hearing or evidence, unless specified conditions are met.

This bill would delete this reference to the parental rights of the surrogate and her spouse or partner and would instead require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

(1)The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the childs parents, governs proceedings to establish that relationship, and establishes the jurisdiction of the courts under the act. Existing law provides that the parent and child relationship may be established between a child and the natural parent by proof of having given birth to the child or as authorized under the act.

This bill would clarify that the parent and child relationship cannot be established between a child and a surrogate, as defined, by proof of having given birth.

(2)Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing 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.

This bill would require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

(1)The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the childs parents, governs proceedings to establish that relationship, and establishes the jurisdiction of the courts under the act. Existing law provides that the parent and child relationship may be established between a child and the natural parent by proof of having given birth to the child or as authorized under the act.

This bill would clarify that the parent and child relationship cannot be established between a child and a surrogate, as defined, by proof of having given birth.

(2)Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing 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.

This bill would require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1396

Author:(Burke)

As Amended Ver:July 11, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY: Eliminates the requirement that any parental rights of a surrogate be terminated when establishing the parental rights of the intended parents. Specifically, this bill:

1. Eliminates the requirement that any parental rights of a surrogate and her spouse be terminated when establishing the parental rights of the intended parents.
2. Makes a clarifying change to correct a statutory cross-reference.

The Senate amendments delete the elimination of the possible establishment of a parent-child relationship between a surrogate under a properly executed surrogacy agreement and the child born to that surrogate.

FISCAL EFFECT: None

COMMENTS: Legal parenthood can be established in a number of different ways. A person is conclusively presumed to be the parent of a child if he or she was married to, or in a registered domestic partnership with, and cohabitating with the child's parent, except as specified. A person may also establish parentage by giving birth to a child. If surrogacy is involved, a court must establish parentage for the intended parents under a properly executed assisted reproduction agreement and parentage will specifically not be established for the surrogate and her spouse or partner.

This bill eliminates the requirement that any parental rights of a surrogate and her spouse or partner be terminated when establishing the parental rights of the intended parents. In support of the bill, the author writes:

AB 1396 will protect legally vulnerable couples or women that by choice or need to seek the services of a surrogate as the medium to having a child.

AB 1396 clarifies that in the case of surrogacy . . . It should be clear that upon the signing of a contract, the surrogate, her husband, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.

Intended Parents of a Child Born Using Assisted Reproduction Technology are the Child's Parents: Two cases have established that the intended parents using assisted reproduction are the legal parents of the child so conceived. In the first case, Johnson v. Calvert (1993) 5 Cal. 4^th 84, a married couple entered into a contract with a surrogate to have an embryo created with the couple's genetic material implanted in the surrogate. The parties had a falling out and the intended parents and the surrogate brought separate legal actions to be declared the unborn child's parents. The trial court consolidated the actions, determined that the married couple was the child's biological and natural parents, and terminated the visitation rights that the surrogate had obtained in an earlier temporary order. The Supreme Court affirmed, holding that when the two methods of recognizing parentage in women – genetic evidence of parentage and giving birth to the child – occur in two separate women, the woman who intended that the child be born is the child's legal mother.

Five years later, a more complicated fact pattern arose again in In re Marriage of Buzzanca (1998) 61 Cal.App.4^th 1410, but with the same ultimate result. In that case, the intended parents did not have a genetic link to the child, but instead entered into a contact with a surrogate to have a fertilized egg from donors unrelated to the couple implanted in the surrogate. Just days prior to the birth of that child, the husband filed for dissolution alleging there were no children of the marriage. The wife filed her own action to be declared the child's mother. The trial court accepted the stipulation of the surrogate and her husband that they were not the parents, but then determined that the wife was not the mother of the child and that, therefore, neither was the husband, effectively leaving the child a legal orphan.

The court of appeals reversed, holding that if a man who consents to artificial insemination of his wife with donor sperm is considered the father of the child so conceived, "there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them." (Id. at 1418.)

Both of these cases make clear that, with or without a genetic link, the parties who intend to bring a child into the world are the child's legal parents. The Legislature affirmed this in AB 1217 (Fuentes), Chapter 466, Statutes of 2012, which clarified the parentage rights of parties using a surrogate and donated embryos, and specified terms of the required agreement. Both parties to the agreement must be represented by separate, independent counsel prior to the signing of the agreement to ensure that all parties fully understand the terms of the agreement.

Most recently, a California appellate court, in C.M. v. M.C. (2017) 7 Cal. App. 5^th 1188, recognized the parentage of the intended parent over a surrogate, who was carrying triplets related to the intended parent but not the surrogate under a properly executed agreement, but who later changed her mind and sought parentage of at least one of the children she was carrying.

Existing Law Recognizes a Surrogate as a Parent by Virtue of Having Given Birth, But Then Negates That Recognition: Existing law allows for the establishment of a parent-child relationship between a child and the person who gives birth to that child. However, under Family Code Section 7962(f), a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. That provision requires the court, upon petition by any party to a properly executed assisted reproduction agreement and either before or after the child's birth, to establish a parent-child relationship for the intended parent and to find that the surrogate and her spouse or partner are not the parents of, and have no parental rights or duties with respect to, the child. The court order specifically terminates 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 has a good faith, reasonable belief that the assisted reproduction agreement or required attorney declarations were not properly executed. Even in that situation, the court, under existing law, can still find that the intended parents are the parents of the child if there is sufficient proof of the parties' intent.

This Bill Removes a Step of the Parentage Establishment Process for Surrogates and Intended Parents Without Changing the Outcome: This bill, in essence, removes an extra step and reaches the same result. Under the bill, the surrogate, who is a party to a properly executed assisted reproduction agreement, does not need to have her parental rights terminated. The intended parents, who by case law and statute are the child's parents, will still bring an action to be declared the child's parents, but there will be no need to terminate the parental rights of the surrogate, which do not exist under a properly executed surrogacy agreement. This bill does not change the fundamental rights of intended parents and surrogates under existing law.

This Bill Also Corrects a Mistaken Cross-Reference in Statute: Current law states that a properly executed assisted reproduction agreement rebuts any specified presumptions of parentage, but then incorrectly references a presumption based on adoption and not based on giving birth. As most recently amended, this bill corrects that cross-reference error and instead correctly provides that a properly executed assisted reproduction agreement rebuts any parentage based on giving birth to a child. The incorrect cross-reference was noted by the court in C.M. v. M.C. (2017) 7 Cal.App.5th at 1201-02, which observed that the omission of the relevant cross-reference "seems inconsistent." This bill corrects that "inconsistency" with the proper cross-reference.

This bill is opposed by the California Catholic Conference (CCC), but its opposition is not just with this bill, but with surrogacy in general and with existing law – both statutory and case law – which recognizes intended parents using assisted reproduction as the parents of the child so conceived and does not recognize a surrogate as the parent. CCC writes:

[S]urrogacy poses significant moral concerns since it rejects and fractures the traditional family structure and complicates parenthood by intentionally multiplying parental roles. The long-range effects of experimental methods of conception and surrogacy – made largely to satisfy the interests of the adults involved – are still unknown. Surrogacy coerces children into situations where confusion and stress are often prevalent because adults choose to intentionally sever genetic and biological sources of identity. Extensive research has shown that children who are deprived of either or both their biological parents are profoundly affected throughout the entire course of their lives. . . .

This bill would further diminish the time-honored framework for the birth and formation of children – making motherhood a fungible commodity that is merely a matter of will or whim, available to those who possess the financial means to enter into a "contracted pregnancy." Sadly, AB 1396 could result in the creation of yet more motherless or fatherless children as our self-absorbed society ignores the needs of children and instead attempts to fulfill adult desires, disregarding the unique, precious and innate bonds between children and their biological parents.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0001303

 THIRD READING  

Bill No: AB 1396

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 7/18/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 66-6, 5/31/17 - See last page for vote

SUBJECT:

SOURCE: Academy of California Adoption Lawyers

DIGEST:

This bill deletes a reference to the parental rights of the surrogate and her spouse or partner and instead requires the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met. This bill also corrects a mistaken cross-reference to existing law.

ANALYSIS:

Existing law:

1. Establishes the California Uniform Parentage Act, and defines a parent and child relationship as the legal relationship between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations. (Fam. Code Sec. 7600 et seq.)
2. Defines “assisted reproduction” as conception by any means other than sexual intercourse, and defines “assisted reproduction agreement” as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction and defines the terms of the relationship between the parties to the contract. (Fam. Code Sec. 7606.)
3. Prohibits the parties to an assisted reproduction agreement for gestational carriers, as defined, from undergoing an embryo transfer or commencing injectable medicine prior to the execution of the agreement, and requires that the parties to an assisted reproduction agreement for gestational carriers be represented by separate, independent counsel prior to the signing of the agreement. (Fam. Code Sec. 7962.)
4. Provides that a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. (Fam. Code Sec. 7692(f).)
5. Provides that a parent and child relationship may be established:
   1. between a child and the natural parent by proof of having given birth to a child or as otherwise provided; and
   2. between a child and an adoptive parent by proof of adoption. (Fam. Code Sec. 7610.)
6. Defines “surrogate” as a woman who bears and carries a child for another through medically assisted reproduction and pursuant to a written agreement, as provided. A surrogate includes both 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 parents, and 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. (Fam. Code Sec. 7960(f).)
7. Defines “assisted reproduction” as conception by any means other than sexual intercourse. Defines “assisted reproduction agreement” as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction and defines the terms of the relationship between the parties to the contract. (Fam. Code Sec. 7606.)
8. Provides that a party to an assisted reproduction agreement may bring an action at any time to establish a parent-child relationship consistent with the intent expressed in the agreement, and requires the court, upon petition by any party to an assisted reproduction agreement for gestational carriers, to issue an order establishing parentage. (Fam. Code Secs. 7630, 7962.)
9. Provides that a person who has sexual intercourse or causes conception with the intent to become a legal parent by assisted reproduction in California submits to the jurisdiction of courts in California with respect to an action brought regarding a child who may have been conceived by that act of intercourse or assisted reproduction. (Fam. Code Sec. 7620.)

This bill:

1. Provides that a judgment or order establishing a parent-child relationship, upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, shall be issued forthwith.
2. Removes a reference to terminating parental rights of the surrogate and her spouse or partner.
3. Clarifies a cross-reference to another section of the Family Code by correcting the referenced subdivision.

Comments

Purpose of this bill. There are millions of American women and men struggling with infertility and more than 858,000 California citizens suffering from this reproductive disease. Having thousands of people seeking the services of a surrogate due to their inability to conceive; it is only pertinent and expected that our legal system should represent and protect the intended parents.

AB 1396 seeks to legally protect vulnerable couples or women that by choice or need seek the services of a surrogate as the medium to having a child. AB 1396 clarifies that in the case of surrogacy – where an agreement had been signed, the parent and child relationship cannot be established between a child and a surrogate by proof of having given birth. It should be clear that upon the signing of a contract, the surrogate, her husband, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children. AB 1396 corrects an error as to letter “b” versus “a,” being used.

Removing a reference to the termination of the surrogate’s parental rights. Existing law provides that a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court rebuts any presumption of parentage for the surrogate and her spouse or partner. (Fam. Code Sec. 7962(f).) Existing law further provides that upon petition of any party to a properly executed assisted reproduction agreement for gestation carriers, the court shall issue a judgment or order establishing a parent-child relationship. (Id.) As currently written, this code section goes on to state that the “judgment or order shall terminate any parental rights of the surrogate and her spouse or partner.” This bill strikes that language and replaces it with the “judgment or order shall be issued forthwith.”

Since existing law provides for this rebuttal to any presumption of parentage for the surrogate and her spouse or partner, the author suggests the reference to termination of their parent rights is potentially confusing, since if it was subject to a properly completed and executed assisted reproduction agreement, the surrogate and her spouse or partner would not have parental rights. This is further supported by several decisions from the California’s appellate courts who have found repeatedly that the intended parents, those who intend to bring the child into the world, are the child’s legal parents. (C.M. v. M.C. (2017) 7 Cal. App. 5th 1188; Johnson v. Calvert (1993) 5 Cal. 4th 84.) This outcome has been supported by the courts even when the intended parents did not have a genetic link to the child. (In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410.)

This proposed change does not impact the courts ability to assess whether a good faith, reasonable belief that the assisted reproduction agreement for gestational carriers or attorney declarations were not executed in accordance with California law, as provided for in Section 7962(f) of the Family Code. Nor would it impact the court’s ability to determine parentage as provided for under other provisions of California law.

Correction to a mistaken cross-reference within existing law. Existing law, Section 7962(f) of the Family Code cross-references subdivision (b) of Section 7610 of the Family Code. This code section states that a properly executed assisted reproduction agreement rebuts any specified presumptions of parentage, but then the cross-reference is to a presumption based on adoption, rather than the presumption based on giving birth. This incorrect cross-reference was recently noted by the court in C.M. v. M.C. (2017) Cal.App.5th at 1201-02, the court noted that the omission of the relevant cross reference “seems inconsistent.” This bill seeks to correct that noted inconsistency by replacing the cross-reference to the adoption presumption with the correct cross-reference to subdivision (a) of Section 7610, which provides for the parentage presumption based on giving birth.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 7/25/17)

Academy of California Adoption Lawyers (source)

Academy of California Family Formation Lawyers

Resolve, the National Infertility Association

OPPOSITION: (Verified 7/25/17)

California Catholic Conference

California Right to Life Committee

Center for Bioethics and Culture Network

ARGUMENTS IN SUPPORT: The Academy of California Adoption Lawyers, the sponsor of this bill, writes:

AB 1396 which clarifies that in the case of a surrogate, (also referred to as gestational carrier when the woman has no genetic tie to the pregnancy), where an assisted reproduction agreement for gestational carriers had been signed, the parent and child relationship can be established by a pre-birth court order. This bill fixes a typographical error, previously referencing the wrong paragraph. Further, it clarifies the court does not need to terminate parental rights of the gestational carrier prior to declaring the intended parent(s) as the legal parents, as there were no parental rights established which would need termination.

ARGUMENTS IN OPPOSITION: The Center for Bioethics and Culture Network (CBC) and the California Catholic Conference are opposed to this bill. Both groups report to being opposed to surrogacy in general.

The California Catholic Conference writes:

We appreciate positive parenting and loving home situations in which children are nurtured naturally or by adoption. However, surrogacy poses significant moral concerns since it rejects and fractures the traditional family structure and complicates parenthood by intentionally multiplying parental roles. The long-range effects of experimental methods of conception and surrogacy – made largely to satisfy the interest of the adults involved – are still unknown. Surrogacy coerces children into situations where confusion and stress are often prevalent because adults choose to intentionally sever genetic and biological sources of identity.

The CBC writes:

We oppose all forms of surrogacy. It is often coercive, offering money – often much needed money for low income and poor women in economically developing countries, but treating them as little more than caged breeders. Or, as here in the U.S., requiring women to sign away their rights in contracts.

Arguably, both of these groups’ opposition is aimed at surrogacy as it is currently provided for under existing California law. Their concerns do not seem to be tailored to the clarifications made by this bill as currently in print.

ASSEMBLY FLOOR: 66-6, 5/31/17

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Brough, Burke, Caballero, Calderon, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Dababneh, Daly, Flora, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Waldron, Weber, Wood, Rendon

NOES: Chávez, Gallagher, Harper, Kiley, Mathis, Voepel

NO VOTE RECORDED: Travis Allen, Chen, Choi, Dahle, Eggman, Mayes, Melendez, Nazarian

Prepared by:

8/17/17 11:22:06

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1396 (Author:Burke)

Version: July 11, 2017

Hearing Date: July 18, 2017

Fiscal: No

Urgency: No

Consultant: MS

SUBJECT

Surrogacy

DESCRIPTION

Existing law requires an assisted reproduction agreement for gestational carriers to include certain terms, including, among others, the identity of the intended parent or parents. Upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, a court is required to issue a judgment or order establishing a parent-child relationship between the child or children and the intended parent or parents identified in the surrogacy agreement and further establishing that the surrogate, her spouse, or partner is not a part of, and has no parental rights or duties with respect to the child or children. Existing law requires the judgment or order to terminate any parental rights of the surrogate and her spouse or partner without further hearing or evidence, unless specified conditions are met.

This bill would delete this reference to the parental rights of the surrogate and her spouse or partner and would instead require the court to issue the judgment or order regarding parentage forthwith, unless specified conditions are met.

BACKGROUND

It is the policy of the State of California to establish paternity for all children. The establishment of paternity provides children with equal rights and access to benefits such as health insurance, child support, and inheritance. (Fam. Code Sec. 7570.) Under existing law, a child born during a marriage to a wife who lives with her husband is conclusively presumed to be the child of the marriage. (Fam. Code Sec. 7540.) For a child born outside of a marriage, paternity may be established by a voluntary declaration of paternity or through another legal presumption of paternity. (Fam. Code Secs. 7573, 7611.) In the event that two or more presumptions of paternity arise, the court is required to find in favor of the presumption which on the facts is founded on the weightier considerations of policy and logic. (Fam. Code Sec. 7612.)

For most heterosexual couples, conception is achieved with the woman’s own eggs and the sperm of her male partner, making parental identity straightforward. However, individuals and couples are increasingly using assisted reproduction technology, which can rely upon donor sperm, donor eggs, donor embryos, and host wombs, thereby requiring the legal concept of parentage to evolve. Generally, donors of genetic material are treated under law as though they are not the parents of a child conceived from that material. For example, California’s Family Code treats sperm donors who are not married to the woman who conceives using the donor’s sperm as “if he were not the natural father of the child thereby conceived, unless otherwise agreed to by the woman and donor in writing prior to conception of the child. (Fam. Code Sec. 7613(b).) In most of these cases, the law instead looks to the “intended parents,” as defined by the California Supreme Court in Buzzanca v. Buzzanca (1998) 61 Cal.App.4th 1410, which held that, regardless of who provides the eggs, sperm or uterus, the intended parent(s) are “the first cause, prime movers, of the procreative relationship.” (Id. at 1424.) Thus, a parental relationship is often established at the time medical procedures are initiated and consented to by the intended parent(s), even in the absence of any biological relationship between them and the child(ren) created. In other situations, courts will look to an adult who has functioned as a parent to the child, and determine whether he or she fits an existing presumption under California law.

The definition of what constitutes a family, or how a family is created has been the source of legal tension which the Legislature has sought to address. AB 1349 (Hill, Ch. 185, Stats. 2011) distinguished between known sperm donors who planned to co-parent with the mother and more traditional sperm donors who gave their genetic material without any expectation of parenting the child conceived. In 2013, the Legislature enacted AB 1403 (Committee on Judiciary, Ch. 510, Stats. 2013) to update the Uniform Parentage Act (UPA) by codifying case law which has applied presumptions of parentage neutrally with regards to gender, and make the Act’s provisions gender neutral where appropriate. SB 115 (Hill, 2013) sought to clarify how presumptions of parentage work in situations where an individual is both a presumed father and a sperm donor. AB 2344 (Ammiano, Ch. 636, Stats. 2014) created three optional forms to allow intended parents to state their intention, in writing, to parent a child conceived with the use of assisted reproduction.

In 2016, AB 2349 (Chiu, Ch. 385, Stats. 2016) sought to ensure that California court orders are respected in other states and that California maintains the ability to determine parentage in the event that a party to an assisted reproduction agreement for gestational carriers (i.e., surrogacy agreement) resides out-of-state. Additionally, AB 2349 clarified when the court may exercise subject matter jurisdiction over a child or parties to an assisted reproduction agreement for gestational carriers.

This bill seeks to further clarify the parentage of a child born using assisted reproduction technology. Specifically, the bill seeks to clarify that in the case of surrogacy, 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 forthwith and without further hearing or evidence. Unless, as provided by existing law, 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 existing law. The bill also seeks to make a clarifying change to correct a statutory cross-reference.

CHANGES TO EXISTING LAW

Existing law establishes the California Uniform Parentage Act, and defines a parent and child relationship as the legal relationship between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations. (Fam. Code Sec. 7600 et seq.)

Existing law defines “assisted reproduction” as conception by any means other than sexual intercourse, and defines “assisted reproduction agreement” as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction and defines the terms of the relationship between the parties to the contract. (Fam. Code Sec. 7606.)

Existing law prohibits the parties to an assisted reproduction agreement for gestational carriers, as defined, from undergoing an embryo transfer or commencing injectable medicine prior to the execution of the agreement, and requires that the parties to an assisted reproduction agreement for gestational carriers be represented by separate, independent counsel prior to the signing of the agreement. (Fam. Code Sec. 7962.)

Existing law provides that a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. (Fam. Code Sec. 7692(f).)

Existing law provides that a parent and child relationship may be established:

• between a child and the natural parent by proof of having given birth to a child or as otherwise provided; and
• between a child and an adoptive parent by proof of adoption. (Fam. Code Sec. 7610.)

Existing law defines “surrogate” as a woman who bears and carries a child for another through medically assisted reproduction and pursuant to a written agreement, as provided. A surrogate includes both 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 parents, and 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. (Fam. Code Sec. 7960(f).)

Existing law defines “assisted reproduction” as conception by any means other than sexual intercourse. Defines “assisted reproduction agreement” as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction and defines the terms of the relationship between the parties to the contract. (Fam. Code Sec. 7606.)

Existing law provides that a party to an assisted reproduction agreement may bring an action at any time to establish a parent-child relationship consistent with the intent expressed in the agreement, and requires the court, upon petition by any party to an assisted reproduction agreement for gestational carriers, to issue an order establishing parentage. (Fam. Code Secs. 7630, 7962.)

Existing law provides that a person who has sexual intercourse or causes conception with the intent to become a legal parent by assisted reproduction in California submits to the jurisdiction of courts in California with respect to an action brought regarding a child who may have been conceived by that act of intercourse or assisted reproduction. (Fam. Code Sec. 7620.)

This bill provides that a judgment or order establishing a parent-child relationship, upon the petition of any party to a properly executed assisted reproduction agreement for gestational carriers, shall be issued forthwith.

This bill removes a reference to terminating parental rights of the surrogate and her spouse or partner.

This bill clarifies a cross reference to another section of the family code by correcting the referenced subdivision.

COMMENT

1. Stated need for this bill

According to the Author:

There are millions of American women and men struggling with infertility and more than 858,000 California citizens suffering from this reproductive disease. Having thousands of people seeking the services of a surrogate due to their inability to conceive; it is only pertinent and expected that our legal system should represent and protect the intended parents.

AB 1396 seeks to legally protect vulnerable couples or women that by choice or need seek the services of a surrogate as the medium to having a child. AB 1396 clarifies that in the case of surrogacy – where an agreement had been signed, the parent and child relationship cannot be established between a child and a surrogate by proof of having given birth. It should be clear that upon the signing of a contract, the surrogate, her husband, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children. AB 1396 corrects an error as to letter “b” versus “a”, being used.

The Academy of California Adoption Lawyers (ACAL), the sponsors of this bill, writes:

AB 1396 which clarifies that in the case of a surrogate, (also referred to as gestational carrier when the woman has no genetic tie to the pregnancy), where an assisted reproduction agreement for gestational carriers had been signed, the parent and child relationship can be established by a pre-birth court order. This bill fixes a typographical error, previously referencing the wrong paragraph. Further, it clarifies the court does not need to terminate parental rights of the gestational carrier prior to declaring the intended parent(s) as the legal parents, as there were no parental rights established which would need termination.

1. Removing a reference to the termination of the surrogate’s parental rights

Existing law provides that a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court rebuts any presumption of parentage for the surrogate and her spouse or partner. (Fam. Code Sec. 7962(f).) Existing law further provides that upon petition of any party to a properly executed assisted reproduction agreement for gestation carriers, the court shall issue a judgment or order establishing a parent-child relationship. (Id.) As currently written, this code section goes on to state that the “judgment or order shall terminate any parental rights of the surrogate and her spouse or partner.” This bill would strike that language and replace it with the “judgment or order shall be issued forthwith.”

Since existing law provides for this rebuttal to any presumption of parentage for the surrogate and her spouse or partner, the author suggests the reference to termination of their parent rights is potentially confusing, since if it was subject to a properly completed and executed assisted reproduction agreement, the surrogate and her spouse or partner would not have parental rights. This is further supported by several decisions from the California’s appellate courts who have found repeatedly that the intended parents, those who intend to bring the child into the world, are the child’s legal parents. (C.M. v. M.C. (2017) 7 Cal. App. 5th 1188; Johnson v. Calvert (1993) 5 Cal. 4th 84.) This outcome has been supported by the courts even when the intended parents did not have a genetic link to the child. (In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410.)

This proposed change does not impact the courts ability to assess whether a good faith, reasonable belief that the assisted reproduction agreement for gestational carriers or attorney declarations were not executed in accordance with California law, as provided for in Section 7962(f) of the Family Code. Nor would it impact the court’s ability to determine parentage as provided for under other provisions of California law.

1. Correction to a mistaken cross-reference within existing law

Existing law, Section 7962(f) of the Family Code cross-references subdivision (b) of Section 7610 of the Family code. This code section states that a properly executed assisted reproduction agreement rebuts any specified presumptions of parentage, but then the cross-reference is to a presumption based on adoption, rather than the presumption based on giving birth. This incorrect cross-reference was recently noted by the court in C.M. v. M.C. (2017) Cal.App.5th at 1201-02, the court noted that the omission of the relevant cross reference “seems inconsistent.” This bill seeks to correct that noted inconsistency by replacing the cross-reference to the adoption presumption with the correct cross-reference to subdivision (a) of Section 7610, which provides for the parentage presumption based on giving birth.

1. Opposition Arguments

The Center for Bioethics and Culture Network (CBC) and the California Catholic Conference are opposed to this bill. Both groups report to being opposed to surrogacy in general.

The California Catholic Conference writes:

We appreciate positive parenting and loving home situations in which children are nurtured naturally or by adoption. However, surrogacy poses significant moral concerns since it rejects and fractures the traditional family structure and complicates parenthood by intentionally multiplying parental roles. The long-range effects of experimental methods of conception and surrogacy – made largely to satisfy the interest of the adults involved – are still unknown. Surrogacy coerces children into situations where confusion and stress are often prevalent because adults choose to intentionally sever genetic and biological sources of identity.

The CBC writes:

We oppose all forms of surrogacy. It is often coercive, offering money – often much needed money for low income and poor women in economically developing countries, but treating them as little more than caged breeders. Or, as here in the U.S., requiring women to sign away their rights in contracts.

Arguably, both of these groups’ opposition is aimed at surrogacy as it is currently provided for under existing California law. Their concerns do not seem to be tailored to the clarifications made by this bill as currently in print.

Support: Resolve, the National Infertility Association

Opposition: California Catholic Conference; Center for Bioethics and Culture Network

HISTORY

Source: Academy of California Adoption Lawyers

Related Pending Legislation: None Known

Prior Legislation:

AB 2349 (Chiu, Ch. 385, Stats. 2016) sought to ensure that California court orders are respected in other states and that California maintains the ability to determine parentage in the event that a party to an assisted reproduction agreement for gestational carriers (i.e., surrogacy agreement) resides out-of-state. Additionally, AB 2349 clarified when the court may exercise subject matter jurisdiction over a child or parties to an assisted reproduction agreement for gestational carriers.

AB 960 (Chiu, Ch. 566, Stats. 2015) created uniform rules for intended parents, regardless of gender and/or marital status, and updated the optional, statutory assisted reproduction forms to be consistent with the provisions of this bill.

AB 2344 (Ammiano, Ch. 636, Stats. 2014) created three optional forms to allow intended parents to state their intention, in writing, to parent a child conceived with the use of assisted reproduction.

AB 1217 (Fuentes, Ch.466, Stats. 2012) required a surrogate mother and the intended parent(s), each represented by independent counsel, to execute a notarized or witnessed surrogacy agreement before the mother can begin medication for assisted reproduction.

AB 2356 (Skinner, Ch. 699, Stats. 2012) excepted sperm donated by a sexually intimate partner of the recipient from second or repeat testing, as specified, if the recipient is informed of the testing requirements and signs a written waiver. Defined “sexually intimate partner” to include a known or designated donor to whose sperm the recipient had previously been exposed in a nonmedical setting in an attempt to conceive.

AB 1349 (Hill, Ch. 185, Stats. 2011) provided that a voluntary declaration of paternity is invalid under specified circumstances, allowed a presumed parent to bring a motion to set aside the voluntary declaration within a specified amount of time, and provided that a sperm donor would not be considered the natural father unless otherwise agreed to in writing.

Prior Vote:

Assembly Floor (Ayes 66, Noes 6)

Assembly Judiciary Committee (Ayes 10, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 1396

Author:(Burke)

As Amended Ver:May 4, 2017

Majority vote

SUMMARY: Eliminates the establishment of a parent-child relationship between a surrogate, as defined, and the child born to that surrogate. Specifically, this bill:

1. Eliminates the establishment of a parent-child relationship between a surrogate under a properly executed surrogacy agreement, as provided, and the child born to that surrogate.
2. Makes a clarifying change to correct a statutory cross-reference.

FISCAL EFFECT: None

COMMENTS: Legal parenthood can be established in a number of different ways. A person is conclusively presumed to be the parent of a child if he or she was married to, or in a registered domestic partnership with, and cohabitating with the child's parent, except as specified. A person may also establish parentage by giving birth to a child. If surrogacy is involved, a court must establish parentage for the intended parents under a properly executed assisted reproduction agreement and parentage will specifically not be established for the surrogate and her spouse or partner.

This bill eliminates the establishment of a parent-child relationship between a surrogate, as defined, and a child born to that surrogate pursuant to a surrogacy agreement. In support of the bill, the author writes:

AB 1396 will protect legally vulnerable couples or women that by choice or need to seek the services of a surrogate as the medium to having a child.

AB 1396 clarifies that in the case of surrogacy – where an agreement had been signed, the parent and child relationship cannot be established between a child and a surrogate by proof of having given birth. It should be clear that upon the signing of a contract, the surrogate, her husband, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.

Intended Parents of a Child Born Using Assisted Reproduction Technology are the Child's Parents: Two cases have established that the intended parents using assisted reproduction are the legal parents of the child so conceived. In the first case, Johnson v. Calvert (1993) 5 Cal. 4^th 84, a married couple entered into a contract with a surrogate to have an embryo created with the couple's genetic material implanted in the surrogate. The parties had a falling out and the intended parents and the surrogate brought separate legal actions to be declared the unborn child's parents. The trial court consolidated the actions, determined that the married couple was the child's biological and natural parents, and terminated the visitation rights that the surrogate had obtained in an earlier temporary order. The Supreme Court affirmed, holding that when the two methods of recognizing parentage in women – genetic evidence of parentage and giving birth to the child – occur in two separate women, the woman who intended that the child be born is the child's legal mother.

Five years later, a more complicated fact pattern arose again in In re Marriage of Buzzanca (1998) 61 Cal.App.4^th 1410, but with the same ultimate result. In that case, the intended parents did not have a genetic link to the child, but instead entered into a contact with a surrogate to have a fertilized egg from donors unrelated to the couple implanted in the surrogate. Just days prior to the birth of that child, the husband filed for dissolution alleging there were no children of the marriage. The wife filed her own action to be declared the child's mother. The trial court accepted the stipulation of the surrogate and her husband that they were not the parents, but then determined that the wife was not the mother of the child and that, therefore, neither was the husband, effectively leaving the child a legal orphan.

The court of appeals reversed, holding that if a man who consents to artificial insemination of his wife with donor sperm is considered the father of the child so conceived, "there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them." (Id. at 1418.)

Both of these cases make clear that, with or without a genetic link, the parties who intend to bring a child into the world are the child's legal parents. The Legislature affirmed this in AB 1217 (Fuentes), Chapter 466, Statutes of 2012, which clarified the parentage rights of parties using a surrogate and donated embryos, and specified terms of the required agreement. Both parties to the agreement must be represented by separate, independent counsel prior to the signing of the agreement to ensure that all parties fully understand the terms of the agreement.

Most recently, a California appellate court, in C.M. v. M.C. (2017) 7 Cal. App. 5^th 1188, recognized the parentage of the intended parent over a surrogate, who was carrying triplets related to the intended parent but not the surrogate under a properly executed agreement, but who later changed her mind and sought parentage of at least one of the children she was carrying.

Existing Law Recognizes a Surrogate as a Parent by Virtue of Having Given Birth, But Then Negates That Recognition: Existing law allows for the establishment of a parent-child relationship between a child and the person who gives birth to that child. However, under Family Code Section 7962(f), a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. That provision requires the court, upon petition by any party to a properly executed assisted reproduction agreement and either before or after the child's birth, to establish a parent-child relationship for the intended parent and to find that the surrogate and her spouse or partner are not the parents of, and have no parental rights or duties with respect to, the child. The court order specifically terminates 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 has a good faith, reasonable belief that the assisted reproduction agreement or required attorney declarations were not properly executed. Even in that situation, the court, under existing law, can still find that the intended parents are the parents of the child if there is sufficient proof of the parties' intent.

This Bill Removes a Step of the Parentage Establishment Process for Surrogates and Intended Parents Without Changing the Outcome: This bill, in essence, removes the extra steps and reaches the same result. Under the bill, the surrogate, who is a party to a properly executed assisted reproduction agreement, never establishes a parent-child relationship by having given birth to the child, so there is no parent-child relationship to terminate in the action to establish the parentage rights of the intended parents. The intended parents, who by case law and statute are the child's parents, will still bring an action to be declared the child's parents, but there will be no need to terminate the parental rights of the surrogate, which do not exist under a properly executed surrogacy agreement. This bill does not change the fundamental rights of intended parents and surrogates under existing law.

This Bill Also Corrects a Mistaken Cross-Reference in Statute: Current law states that a properly executed assisted reproduction agreement rebuts any specified presumptions of parentage, but then incorrectly references a presumption based on adoption and not based on giving birth. As most recently amended, this bill corrects that cross-reference error and instead correctly provides that a properly executed assisted reproduction agreement rebuts any parentage based on giving birth to a child. The incorrect cross-reference was noted by the court in C.M. v. M.C. (2017) 7 Cal.App.5th at 1201-02, which observed that the omission of the relevant cross-reference "seems inconsistent." This bill corrects that "inconsistency" with the proper cross-reference.

This bill is opposed by the California Catholic Conference (CCC), but its opposition is not just with this bill, but with surrogacy in general and with existing law – both statutory and case law – which recognizes intended parents using assisted reproduction as the parents of the child so conceived and does not recognize a surrogate as the parent. CCC writes:

[S]urrogacy poses significant moral concerns since it rejects and fractures the traditional family structure and complicates parenthood by intentionally multiplying parental roles. The long-range effects of experimental methods of conception and surrogacy – made largely to satisfy the interests of the adults involved – are still unknown. Surrogacy coerces children into situations where confusion and stress are often prevalent because adults choose to intentionally sever genetic and biological sources of identity. Extensive research has shown that children who are deprived of either or both their biological parents are profoundly affected throughout the entire course of their lives. . . .

This bill would further diminish the time-honored framework for the birth and formation of children – making motherhood a fungible commodity that is merely a matter of will or whim, available to those who possess the financial means to enter into a "contracted pregnancy." Sadly, AB 1396 could result in the creation of yet more motherless or fatherless children as our self-absorbed society ignores the needs of children and instead attempts to fulfill adult desires, disregarding the unique, precious and innate bonds between children and their biological parents.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000300

Date of Hearing: May 9, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1396

Author:(Burke) – As Amended Ver:May 4, 2017

SUBJECT: PRESUMPTION OF PARENTAGE: Surrogacy

KEY ISSUE: SHOULD THE PRESUMPTION OF PARENTAGE FOR A PERSON WHO GIVEs BIRTH TO A CHILD BE ELIMINATED FOR A SURROGATE, who gives birth pursuant to A PROPERLY EXECUTED SURROGACY AGREEMENT and who today is already not LEGALLY considered a parent?

SYNOPSIS

Existing law allows for the establishment of a parent-child relationship between a child and the person who gives birth to that child. However, under Family Code Section 7962(f), a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. That provision requires the court, upon petition by any party to a properly executed assisted reproduction agreement and either before or after the child's birth, to establish a parent-child relationship for the intended parent and to find that the surrogate and her spouse or partner are not the parents of, and have no parental rights or duties with respect to, the child. The court order specifically terminates 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 has a good faith, reasonable belief that the assisted reproduction agreement or required attorney declarations were not properly executed. Even in that situation, the court, under existing law, can still find that the intended parents are the parents of the child if there is sufficient proof of the parties' intent.

This bill, in essence, removes the extra steps and reaches the same result. Under the bill, the surrogate, who is a party to a properly executed assisted reproduction agreement, never establishes a parent-child relationship by having given birth to the child, so there is no parent-child relationship to terminate in the action to establish the parentage rights of the intended parents. The intended parents, who by case law and statute are the child's parents, will still bring an action to be declared the child's parents, but there will be no need to terminate the parental rights of the surrogate, which do not exist under a properly executed surrogacy agreement. This bill does not change the fundamental rights of intended parents and surrogates under existing law.

This bill is sponsored by the Academy of California Adoption Lawyers. It is opposed by the California Catholic Conference, but its opposition is not just with this bill, but with surrogacy in general and with existing law – both statutory and case law – which recognizes intended parents using assisted reproduction as the parents of the child so conceived and does not recognize a surrogate as the parent.

SUMMARY: Eliminates the establishment of a parent-child relationship between a surrogate, as defined, and the child born to that surrogate. Specifically, this bill:

1. Eliminates the establishment of a parent-child relationship between a surrogate under a properly executed surrogacy agreement, as provided, and the child born to that surrogate.
2. Makes a clarifying change to correct a statutory cross-reference.

EXISTING LAW:

1. Establishes the California Uniform Parentage Act (UPA). Defines a parent and child relationship as the legal relationship between a child and the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. (Family Code Section 7600 et seq. Unless stated otherwise, all further statutory references are to that code.)
2. Provides that a parent and child relationship may be established:
   1. Between a child and the natural parent by proof of having given birth to a child or as otherwise provided; and
   2. Between a child and an adoptive parent by proof of adoption. (Section 7610.)
3. Defines “surrogate” as a woman who bears and carries a child for another through medically assisted reproduction and pursuant to a written agreement, as provided. A surrogate includes both 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 parents and 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. (Section 7960 (f).)
4. Defines “assisted reproduction” as conception by any means other than sexual intercourse. Defines “assisted reproduction agreement” as a written contract that includes a person who intends to be the legal parent of a child born through assisted reproduction and defines the terms of the relationship between the parties to the contract. (Section 7606.)
5. Prohibits the parties to an assisted reproduction agreement for gestational carriers, as defined, from undergoing an embryo transfer, or commencing injectable medicine prior to the execution of the agreement. Requires that both parties to the agreement be represented by separate, independent counsel prior to the signing of the agreement. Requires that the agreement include the identity of the intended parents and, unless anonymously donated, the persons from whom the gametes originate. (Section 7962.)
6. Provides that a party to an assisted reproduction agreement may bring an action at any time to establish a parent-child relationship consistent with the intent expressed in the agreement. Requires the court, upon petition by any party to an assisted reproduction agreement for gestational carriers, to issue an order establishing parentage for the intended parents and terminating parentage for the surrogate and her spouse or partner. (Sections 7630, 7962.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Legal parenthood can be established in a number of different ways. A person is conclusively presumed to be the parent of a child if he or she was married to, or in a registered domestic partnership with, and cohabitating with the child’s parent, except as specified. A person may also establish parentage by giving birth to a child. If surrogacy is involved, a court must establish parentage for the intended parents under a properly executed assisted reproduction agreement and parentage will specifically not be established for the surrogate and her spouse or partner.

This bill eliminates the establishment of a parent-child relationship between a surrogate, as defined, and a child born to that surrogate pursuant to a surrogacy agreement. In support of the bill, the author writes:

AB 1396 will protect legally vulnerable couples or women that by choice or need to seek the services of a surrogate as the medium to having a child.

AB 1396 clarifies that in the case of surrogacy – where an agreement had been signed, the parent and child relationship cannot be established between a child and a surrogate by proof of having given birth. It should be clear that upon the signing of a contract, the surrogate, her husband, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.

Intended Parents of a Child Born Using Assisted Reproduction Technology are the Child’s Parents: Two cases have established that the intended parents using assisted reproduction are the legal parents of the child so conceived. In the first case, Johnson v. Calvert (1993) 5 Cal. 4^th 84, a married couple entered into a contract with a surrogate to have an embryo created with the couple’s genetic material implanted in the surrogate. The parties had a falling out and the intended parents and the surrogate brought separate legal actions to be declared the unborn child’s parents. The trial court consolidated the actions, determined that the married couple was the child’s biological and natural parents, and terminated the visitation rights that the surrogate had obtained in an earlier temporary order. The Supreme Court affirmed, holding that when the two methods of recognizing parentage in women – genetic evidence of parentage and giving birth to the child – occur in two separate women, the woman who intended that the child be born is the child’s legal mother.

Five years later, a more complicated fact pattern arose again in In re Marriage of Buzzanca (1998) 61 Cal.App.4^th 1410, but with the same ultimate result. In that case, the intended parents did not have a genetic link to the child, but instead entered into a contact with a surrogate to have a fertilized egg from donors unrelated to the couple implanted in the surrogate. Just days prior to the birth of that child, the husband filed for dissolution alleging there were no children of the marriage. The wife filed her own action to be declared the child’s mother. The trial court accepted the stipulation of the surrogate and her husband that they were not the parents, but then determined that the wife was not the mother of the child and that, therefore, neither was the husband, effectively leaving the child a legal orphan.

The court of appeals reversed, holding that if a man who consents to artificial insemination of his wife with donor sperm is considered the father of the child so conceived, “there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them.” (Id. at 1418.)

Both of these cases make clear that, with or without a genetic link, the parties who intend to bring a child into the world are the child’s legal parents. The Legislature affirmed this in AB 1217 (Fuentes), Chap. 466, Stats. 2011, which clarified the parentage rights of parties using a surrogate and donated embryos, and specified terms of the required agreement. Both parties to the agreement must be represented by separate, independent counsel prior to the signing of the agreement to ensure that all parties fully understand the terms of the agreement.

Most recently, a California appellate court, in C.M. v. M.C. (2017) 7 Cal. App. 5^th 1188, recognized the parentage of the intended parent over a surrogate, who was carrying triplets related to the intended parent but not the surrogate under a properly executed agreement, but who later changed her mind and sought parentage of at least one of the children she was carrying.

Existing Law Recognizes a Surrogate as a Parent by Virtue of Having Given Birth, But Then Negates That Recognition: Existing law allows for the establishment of a parent-child relationship between a child and the person who gives birth to that child. However, under Family Code Section 7962(f), a properly completed and executed assisted reproduction agreement, which includes specified attorney declarations, filed with the court, rebuts any presumption of parentage for the surrogate and her spouse or partner. That provision requires the court, upon petition by any party to a properly executed assisted reproduction agreement and either before or after the child's birth, to establish a parent-child relationship for the intended parent and to find that the surrogate and her spouse or partner are not the parents of, and have no parental rights or duties with respect to, the child. The court order specifically terminates 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 has a good faith, reasonable belief that the assisted reproduction agreement or required attorney declarations were not properly executed. Even in that situation, the court, under existing law, can still find that the intended parents are the parents of the child if there is sufficient proof of the parties' intent.

This Bill Removes a Step of the Parentage Establishment Process for Surrogates and Intended Parents Without Changing the Outcome: This bill, in essence, removes the extra steps and reaches the same result. Under the bill, the surrogate, who is a party to a properly executed assisted reproduction agreement, never establishes a parent-child relationship by having given birth to the child, so there is no parent-child relationship to terminate in the action to establish the parentage rights of the intended parents. The intended parents, who by case law and statute are the child's parents, will still bring an action to be declared the child's parents, but there will be no need to terminate the parental rights of the surrogate, which do not exist under a properly executed surrogacy agreement. This bill does not change the fundamental rights of intended parents and surrogates under existing law.

This Bill Also Corrects a Mistaken Cross-Reference in Statute: Current law states that a properly executed assisted reproduction agreement rebuts any specified presumptions of parentage, but then incorrectly references a presumption based on adoption and not based on giving birth. As most recently amended, this bill corrects that cross-reference error and instead correctly provides that a properly executed assisted reproduction agreement rebuts any parentage based on giving birth to a child. The incorrect cross-reference was noted by the court in C.M. v. M.C. (2017) 7 Cal.App.5th at 1201-02, which observed that the omission of the relevant cross-reference "seems inconsistent." This bill corrects that "inconsistency" with the proper cross-reference.

ARGUMENTS IN OPPOSITION: This bill is opposed by the California Catholic Conference (CCC), but its opposition is not just with this bill, but with surrogacy in general and with existing law – both statutory and case law – which recognizes intended parents using assisted reproduction as the parents of the child so conceived and does not recognize a surrogate as the parent. CCC writes:

[S]urrogacy poses significant moral concerns since it rejects and fractures the traditional family structure and complicates parenthood by intentionally multiplying parental roles. The long-range effects of experimental methods of conception and surrogacy – made largely to satisfy the interests of the adults involved – are still unknown. Surrogacy coerces children into situations where confusion and stress are often prevalent because adults choose to intentionally sever genetic and biological sources of identity. Extensive research has shown that children who are deprived of either or both their biological parents are profoundly affected throughout the entire course of their lives. . . .

This bill would further diminish the time-honored framework for the birth and formation of children – making motherhood a fungible commodity that is merely a matter of will or whim, available to those who possess the financial means to enter into a "contracted pregnancy." Sadly, AB 1396 could result in the creation of yet more motherless or fatherless children as our self-absorbed society ignores the needs of children and instead attempts to fulfill adult desires, disregarding the unique, precious and innate bonds between children and their biological parents.

REGISTERED SUPPORT / OPPOSITION:

Support

Academy of California Adoption Lawyers (sponsor)

Opposition

California Catholic Conference

One individual

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334