Surrogacy And Donor Facilitators, Assisted Reproduction Agreements For Gestational Carriers, And Oocyte Donations - Parent And Child Relationship - CA Family Law

Section § 7960

This section defines important terms related to assisted reproduction in California. It includes what an 'assisted reproduction agreement' is and details what a 'fund management agreement' involves between intended parents and a surrogacy or donor facilitator. An 'intended parent' is someone who intends to legally become the parent of a child through assisted reproduction. It also describes what a 'nonattorney surrogacy or donor facilitator' is, which is someone involved in the process who isn't a lawyer. The term 'surrogacy or donor facilitator' covers those who help with or find participants for assisted reproduction agreements. A 'surrogate' is defined as a woman who carries a child for someone else; this can be a 'traditional surrogate' or a 'gestational carrier', with different roles depending on their genetic connection to the child. Lastly, a 'donor' is a woman who provides eggs for someone else to use in having children.

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 or donor facilitator relating to the fee or other valuable consideration for services rendered or that will be rendered by the surrogacy or donor facilitator.

(c) “Intended parent” means an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction.

(d) “Nonattorney surrogacy or donor facilitator” means a surrogacy or donor practitioner who is not an attorney in good standing licensed to practice law in this state.

(e) “Surrogacy or donor 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 for the donation of oocytes for use by a person other than the provider of the oocytes, or acting as an intermediary between the parties to an assisted reproduction agreement or oocyte donation.

(2) Charging a fee or other valuable consideration for services rendered relating to an assisted reproduction agreement or oocyte donation.

(f) “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. Within the definition of surrogate are two different and distinct types:

(1) “Traditional surrogate” means 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 parent or parents.

(2) “Gestational carrier” means a woman who is not an intended parent and who agrees to gestate a genetically unrelated embryo pursuant to an assisted reproduction agreement.

(g) “Donor” means a woman who provides oocytes for use by another for the purpose of assisting the recipient of the oocytes in having a child or children.

assisted reproduction agreement fund management agreement intended parent nonattorney facilitator surrogacy facilitator traditional surrogate gestational carrier oocyte donation egg donor surrogate definitions reproduction intermediary parental intent compensation for surrogacy legal parentage surrogacy agreements

(Amended by Stats. 2019, Ch. 115, Sec. 107. (AB 1817) Effective January 1, 2020.)

Section § 7961

If you're working with a surrogacy or donor facilitator who is not a lawyer, they must instruct you to place your money into either a bonded escrow handled by licensed professionals or a trust account managed by an attorney. They cannot have a financial stake or act as an agent in the escrow services holding your funds. The money can only be used as set out in your agreements. However, this rule doesn't apply to funds not included in the management contract or funds paid directly to doctors or psychologists for their services.

(a) A nonattorney surrogacy or donor facilitator shall direct the client to deposit all client funds into either of the following:

(1) An independent, bonded escrow depository maintained by a licensed, independent, bonded escrow company.

(2) A trust account maintained by an attorney.

(b) For purposes of this section, a nonattorney surrogacy or donor facilitator may not have a financial interest in any escrow company holding client funds. A nonattorney surrogacy or donor facilitator and any of its directors or employees shall not be an agent of any escrow company holding client funds.

(c) Client funds may only be disbursed by the attorney or escrow agent as set forth in the assisted reproduction agreement and fund management agreement.

(d) This section shall not apply to funds that are both of the following:

(1) Not provided for in the fund management agreement.

(2) Paid directly to a medical doctor for medical services or a psychologist for psychological services.

nonattorney facilitator surrogacy donor facilitator independent escrow bonded escrow company trust account financial interest escrow agent assisted reproduction agreement fund management agreement medical services payments psychological services payments client funds disbursement licensed escrow company

(Amended by Stats. 2015, Ch. 91, Sec. 4. (AB 1049) Effective January 1, 2016.)

Section § 7962

This law sets out the requirements for agreements involving gestational carriers (surrogates) in California. The agreement must include specific details like the date it was signed, gamete origins, identities of intended parents, and details on medical expense coverage for the surrogate and child. Both the surrogate and intended parents need separate attorneys before signing, and the agreement must be notarized. Medical procedures can't start before the agreement is finalized. A court process can establish parenthood before the child's birth and clarify that the surrogate is not the parent. Agreements are typically kept confidential but may be reviewed by involved parties. The agreement is considered valid unless challenged by a court. If any requirements are not met, it may affect its validity.

(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.

(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 and 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 and 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 signed by all the parties, with the attached declarations of independent attorneys, and lodged with the superior court in accordance with this section, shall rebut any presumptions contained within Part 2 (commencing with Section 7540), subdivision (a) of Section 7610, and Sections 7611 and 7613, as to the gestational carrier surrogate, or the gestational carrier surrogate’s spouse or partner, being a parent of the child or children.

(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 and 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 and child relationship of the intended parent or intended parents identified in the surrogacy agreement and shall establish that the surrogate, and the surrogate’s 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 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. This section does not 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.

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(Amended by Stats. 2019, Ch. 115, Sec. 108. (AB 1817) Effective January 1, 2020.)