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AB-2298 Parent-child relationship: assisted reproduction agreement for gestational carriers.(2017-2018)

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Date Published: 08/29/2018 09:00 PM
AB2298:v94#DOCUMENT

Enrolled  August 29, 2018
Passed  IN  Senate  August 23, 2018
Passed  IN  Assembly  August 27, 2018
Amended  IN  Senate  August 20, 2018
Amended  IN  Assembly  April 09, 2018
Amended  IN  Assembly  March 23, 2018
Amended  IN  Assembly  March 01, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 2298

Introduced by Assembly Member Chau

February 13, 2018

An act to amend Section 7962 of the Family Code, relating to family law.


LEGISLATIVE COUNSEL'S DIGEST


AB 2298, Chau. Parent-child relationship: assisted reproduction agreement for gestational carriers.
Existing law regulates specified aspects of agreements for a woman to carry and bear a child for another through medically assisted reproduction, and defines 2 types of surrogacy for these provisions: traditional surrogate and gestational carrier. A gestational carrier is a woman who is not an intended parent, as defined, and who agrees to gestate an embryo that is genetically unrelated to her pursuant to an assisted reproduction agreement. The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents and provides rebuttable presumptions as to the parentage of a child born under certain circumstances.
Existing law requires a court, upon petition of any party to an assisted reproduction agreement for gestational carriers that was executed in a specified manner and contains certain provisions, to issue a judgment establishing a parent-child relationship of the intended parent or intended parents identified in the agreement and further establishing that the gestational carrier, 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 an assisted reproductive agreement for gestational carriers, in order to be sufficient to require a court to enter a judgment establishing a parent-child relationship, to also disclose that any child conceived through sexual intercourse by the gestational carrier is the child of the gestational carrier. The bill would specifically establish that the gestational carrier surrogate and her spouse or partner do not have a parent-child relationship with the child or children who are born from the transferred embryo or embryos if an agreement for gestational carriers that complies with specified provisions is lodged with the superior court, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 7962 of the Family Code is amended to read:

7962.
 (a) An assisted reproduction agreement for gestational carriers shall contain, but shall not be limited to, all of the following information:
(1) The date on which the assisted reproduction agreement for gestational carriers was executed.
(2) The persons from which the gametes originated, unless donated gametes were used, in which case the assisted reproduction agreement does not need to specify the name of the donor but shall specify whether the donated gamete or gametes were eggs, sperm, or embryos, or all.
(3) The identity of the intended parent or parents.
(4) Disclosure of how the intended parents will cover the medical expenses of the gestational carrier and of the newborn or newborns. If health care coverage is used to cover those medical expenses, the disclosure shall include a review of the health care policy provisions related to coverage for surrogate pregnancy, including any possible liability of the gestational carrier, third-party liability liens or other insurance coverage, and any notice requirements that could affect coverage or liability of the gestational carrier. The review and disclosure do not constitute legal advice. If coverage of liability is uncertain, a statement of that fact shall be sufficient to meet the requirements of this section.
(5) Disclosure that any child conceived through sexual intercourse by the gestational carrier is the child of the gestational carrier.
(b) Prior to executing the written assisted reproduction agreement for gestational carriers, a surrogate and the intended parent or intended parents shall be represented by separate independent licensed attorneys of their choosing.
(c) The assisted reproduction agreement for gestational carriers shall be executed by the parties and the signatures on the assisted reproduction agreement for gestational carriers shall be notarized or witnessed by an equivalent method of affirmation as required in the jurisdiction where the assisted reproduction agreement for gestational carriers is executed.
(d) The parties to an assisted reproduction agreement for gestational carriers shall not undergo an embryo transfer procedure, or commence injectable medication in preparation for an embryo transfer for assisted reproduction purposes, until the assisted reproduction agreement for gestational carriers has been fully executed as required by subdivisions (b) and (c) of this section.
(e) An action to establish the parent-child relationship between the intended parent or parents and the child as to a child conceived pursuant to an assisted reproduction agreement for gestational carriers may be filed before the child’s birth and may be filed in the county where the child is anticipated to be born, the county where the intended parent or intended parents reside, the county where the surrogate resides, the county where the assisted reproduction agreement for gestational carriers is executed, or the county where medical procedures pursuant to the agreement are to be performed. A copy of the assisted reproduction agreement for gestational carriers shall be lodged in the court action filed for the purpose of establishing the parent-child relationship. The parties to the assisted reproduction agreement for gestational carriers shall attest, under penalty of perjury, and to the best of their knowledge and belief, as to the parties’ compliance with this section in entering into the assisted reproduction agreement for gestational carriers. Submitting those declarations shall not constitute a waiver, under Section 912 of the Evidence Code, of the lawyer-client privilege described in Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code.
(f) (1) A notarized assisted reproduction agreement for gestational carriers that complies with subdivision (a) and is signed by all the parties, with the attached declarations of independent attorneys, and lodged with the superior court in accordance with this section, shall establish that the gestational carrier surrogate and her spouse or partner do not have a parent-child relationship with the child or children who are born from the transferred embryo or embryos under subdivision (a) of Section 7610 or Section 7613 and that any presumptions contained within Part 2 (commencing with Section 7540) or Section 7611 are rebutted with respect to the child or children who are born from the transferred embryo or embryos.
(2) Upon petition of any party to a properly executed assisted reproduction agreement for gestational carriers, the court shall issue a judgment or order establishing a parent-child relationship, whether pursuant to Section 7630 or otherwise. The judgment or order may be issued before or after the child’s or children’s birth subject to the limitations of Section 7633. Subject to proof of compliance with this section, the judgment or order shall establish the parent-child relationship of the intended parent or intended parents identified in the surrogacy agreement and shall establish that the surrogate, her spouse, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children who are born from the transferred embryo or embryos. The judgment or order shall be issued forthwith and without further hearing or evidence, unless the court or a party to the assisted reproduction agreement for gestational carriers has a good faith, reasonable belief that the assisted reproduction agreement for gestational carriers or attorney declarations were not executed in accordance with this section. Upon motion by a party to the assisted reproduction agreement for gestational carriers, the matter shall be scheduled for hearing before a judgment or order is issued. Nothing in this section shall be construed to prevent a court from finding and declaring that the intended parent is or intended parents are the parent or parents of the child where compliance with this section has not been met; however, the court shall require sufficient proof entitling the parties to the relief sought.
(g) The petition, relinquishment or consent, agreement, order, report to the court from any investigating agency, and any power of attorney and deposition filed in the office of the clerk of the court pursuant to this part shall not be open to inspection by any person other than the parties to the proceeding and their attorneys and the State Department of Social Services, except upon the written authority of a judge of the superior court. A judge of the superior court shall not authorize anyone to inspect the petition, relinquishment or consent, agreement, order, report to the court from any investigating agency, or power of attorney or deposition, or any portion of those documents, except in exceptional circumstances and where necessary. The petitioner may be required to pay the expense of preparing the copies of the documents to be inspected.
(h) Upon the written request of any party to the proceeding and the order of any judge of the superior court, the clerk of the court shall not provide any documents referred to in subdivision (g) for inspection or copying to any other person, unless the name of the gestational carrier or any information tending to identify the gestational carrier is deleted from the documents or copies thereof.
(i) An assisted reproduction agreement for gestational carriers executed in accordance with this section is presumptively valid and shall not be rescinded or revoked without a court order. For purposes of this part, any failure to comply with the requirements of this section shall rebut the presumption of the validity of the assisted reproduction agreement for gestational carriers.