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Governor Jerry Brown Signs California’s New Surrogacy Bill Into Law

Assemblyman Felipe Fuentes

For two years now, Bill Handel, Karen Synesiou, Dean Masserman and I have been working with Assemblyman Felipe Fuentes’ office to implement needed legislation in California to address our burgeoning surrogacy industry and provide safeguards to prevent future scandals that could further scar this field. Over the weekend, Governor Jerry Brown signed AB 1217 into law. My friend and colleague Rich Vaughnsummarizes the new legislation:

In a nutshell, AB 1217 will codify current best legal practices regarding surrogacy agreements. Although most attorneys follow those best practices now, those practices were not required by law. As a result, there have been occasions when they were not followed, placing intended parents, surrogates and children in jeopardy.

If passed, the law will require that intended parents and a surrogate be represented by separate legal counsel. An assisted reproduction agreement for gestational carriers (surrogates), containing required information and legally notarized, would have to be executed prior to embryo transplantation or administration of medications used in assisted reproduction; in other words, it would be illegal to execute a surrogacy agreement with the intended parents after the surrogacy was already pregnant, as has occurred in a recent court case.

The bill also would permit intended parents to establish their parentage prior to the child’s birth. Parties to the agreement would be required to swear to its veracity under penalty of perjury. Privacy of the intended parents and surrogate would continue to be protected, as the surrogacy agreement would not be open to public view but would be accessible only to the intended parents, surrogate, their attorneys and the state Department of Social Services.

This new law is an important first step to ensuring that all participants in an ART arrangement as well as the resulting children are protected. Yet there is much work that needs to be done as the final bill had many of the protections originally sought stripped in order to accommodate competing political interests.

I will have a more comprehensive review of the new legislation soon. But for now, I want to thank Felipe Fuentes for championing this cause. Also, this law would never have seen the light of day if not for the tireless efforts of Israel Salas who serves as Assemblyman Fuentes’ Legislative Director. In addition, Bill Handel and Karen Synesiou of the Center for Surrogate Parenting were instrumental in the passage of this legislation as they originally approached Assemblyman Fuentes’ office and proposed the first working draft of the legislation. Of note, this bill is the culmination of more than 30 years of effort by Bill Handel to have surrogacy legislation passed in California. Finally, Dean Masserman (who lobbied for the more expansive venue provisions), Professor Judith Daar and Robert Walmsley deserve kudos as well for their roles in ensuring this bill became law.

You can read the text of the bill here. For now, here is the legislative summary:

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.

This bill would require a surrogate mother and the intended parent or intended parents, as defined, to be represented by separate independent counsel of their choosing prior to executing an assisted reproduction agreement for gestational carriers, as defined. The bill also would require an assisted reproduction agreement for gestational carriers to contain specified information. The bill would require the assisted reproduction agreement for gestational carriers to be executed by the parties and notarized or otherwise witnessed, as specified. The bill would prohibit the parties to an assisted reproduction agreement for gestational carriers from undergoing an embryo transfer procedure or commencing injectable medication for assisted reproduction until the assisted reproduction agreement for gestational carriers has been fully executed pursuant to the requirements of these provisions. The bill would permit an action to establish the parent-child relationship to be filed before the child’s birth, and would specify where that action may be filed.

The bill would require the parties to the assisted reproduction agreement for gestational carriers to attest, under penalty of perjury, and to the best of their knowledge and belief, as to their compliance with these provisions. By expanding the existing crime of perjury, the bill would impose a state-mandated local program. The bill
would provide that an assisted reproduction agreement for gestational carriers executed in accordance with these provisions is presumptively valid. The bill would provide that the assisted reproduction agreement for gestational carriers and related documents are not open to inspection, except by the parties to the proceeding and their attorneys and the State Department of Social Services, except as specified.

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