HB4073 - 572R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Repeal

Section 25-218, Arizona Revised Statutes, is repealed.

Sec. 2. Title 25, chapter 2, article 2, Arizona Revised Statutes, is amended by adding a new section 25-218, to read:

START_STATUTE25-218. Gestational surrogacy agreements; requirements; prohibitions; definitions

A. A person may enter into a gestational surrogacy agreement to act as a gestational surrogate pursuant to this section. Any person who enters into a gestational surrogacy agreement to act as a gestational surrogate must meet all of the following:

1. Be at least twenty-one years of age.

2. Previously have given birth to at least one child.

3. Complete a medical evaluation related to the surrogacy arrangement by a physician who is licensed pursuant to title 32, chapter 13 or 17 or a certified nurse midwife or certified women's health registered nurse who is licensed and certified pursuant to title 32, chapter 15.

4. Complete a mental health evaluation by a mental health professional who is licensed pursuant to title 32, chapter 33, a psychiatrist who is licensed pursuant to title 32, chapter 13 0r 17, a psychologist who is licensed pursuant to title 32, chapter 19.1 or a mental health nurse practitioner or psychiatric clinical nurse specialist who is licensed and certified pursuant to title 32, chapter 15. The evaluation required by this paragraph may not be conducted by a counselor who is licensed pursuant to title 32, chapter 33, article 8.

5. Have independent legal representation of the person's choice by an attorney who is licensed by this state to practice law REGARDING THE TERMS OF THE GESTATIONAL SURROGACY AGREEMENT.

b. A person may enter into a gestational surrogacy agreement as an intended parent pursuant to this section. each intended parent who enters into a gestational surrogacy agreement must meet all of the following:

1. Be at least twenty-one years of age.

2. Complete a medical evaluation related to the surrogacy arrangement by a physician who is licensed pursuant to title 32, chapter 13 or 17 or a certified nurse midwife or certified women's health registered nurse who is licensed and certified pursuant to title 32, chapter 15.

3. Complete a mental health evaluation by a mental health professional who is licensed pursuant to title 32, chapter, 33, a psychiatrist who is licensed pursuant to title 32, chapter 13 0r 17, a psychologist who is licensed pursuant to title 32, chapter 19.1 or a mental health nurse practitioner or psychiatric clinical nurse specialist who is licensed and certified pursuant to title 32, chapter 15. The evaluation required by this paragraph may not be conducted by a counselor who is licensed pursuant to title 32, chapter 33, article 8.

4. Have independent legal representation of the intended parent's choice by an attorney who is licensed by this state to practice law regarding the terms of the GESTATIONAL surrogacy agreement.

C. A gestational surrogacy agreement entered into pursuant to this section must meet all of the following:

1. At least one of the following jurisdictional requirements:

(a) At least one party to the gestational surrogacy agreement must be a resident of this state.

(b) The birth that results from the gestational surrogacy agreement will occur or is anticipated to occur in this state.

2. The gestational surrogate and each intended parent meet the requirements of subsections A and B of this section.

3. Each intended parent, the gestational surrogate and the gestational surrogate's spouse, if any, all are parties to the gestational surrogacy agreement and sign the gestational surrogacy agreement.

4. The signature of each party to the agreement is attested by a notary public commissioned pursuant to title 41, chapter 2, article 1.

D. A gestational surrogacy agreement shall contain all of the following:

1. An acknowledgement and agreement from the gestational surrogate that The gestational surrogate agrees to attempt to become pregnant by means of assisted reproduction.

2. An acknowledgment and aGreement from The gestational surrogate and the gestational surrogate's spouse, if any, that the gestational surrogate and the gestational surrogate's spouse, if any, have no claim to maternity or paternity of a child born pursuant to the gestational surrogacy agreement. A gestational surrogate may proceed with a gestational surrogacy agreement without the agreement of the gestational surrogate's spouse if the gestational surrogate has made reasonable efforts to locate the gestational surrogate's spouse and the spouse cannot be located.

3. An acknowledgement and aGreement from The gestational surrogate's spouse, if any, to comply with the provisions of the gestational surrogacy agreement.

4. An acknowledgement and AGreement from the intended parent or, if there are two intended parents, each intended parent jointly and severally that immediately on the birth of the child OR CHILDREN born pursuant to the gestational surrogacy agreement that the intended parent or intended parents will be the exclusive parent or parents of AND WILL ASSUME PHYSICAL RESPONSIBILITY FOR the child or children born pursuant to the gestational surrogacy agreement, regardless of the gender of the CHILD or children born pursuant to the gestational surrogacy agreement or the mental or physical condition of the child or children born pursuant to the gestational surrogacy agreement.

5. An acknowledgement and agreement FROM the intended parent or, if there are two intended parents, each intended parent jointly and severally that immediately on the birth of the child or children born pursuant to the gestational surrogacy agreement THAT the intended parent or intended parents will assume responsibility for the financial support of AND WILL BE THE EXCLUSIVE PARENT OR PARENTS OF the child or children born pursuant to the gestational surrogacy agreement, regardless of the gender of the CHILD or children born pursuant to the gestational surrogacy agreement or the mental or physical condition of the child or children born pursuant to the gestational surrogacy agreement.

6. An acknowledgment and agreement from the intended parent or, if there are two intended parents, each intended parent jointly and severally THAT unconditionally accepts and assumes custody of the CHILD or children born pursuant to the gestational surrogacy agreement.

7. Information disclosing how each intended parent will pay the agreed-on expenses of the gestational surrogate, the assisted reproduction expenses and the medical expenses for the gestational surrogate and the child or children born pursuant to the gestational surrogacy agreement.

8. An acknowledgement and agreement that the gestational surrogate may make all health and welfare decisions regarding the gestational surrogate's care throughout the pregnancy that results from the assisted reproduction that is the subject of the gestational surrogacy agreement.

9. Information about each party's rights pursuant to this section.

E. In addition to the requirements of subsection D of this section, a gestational surrogacy agreement may provide for either of the following:

1. Payment of compensation, support and reasonable expenses incurred by the gestational surrogate.

2. Reimbursement of agreed-on expenses if the gestational surrogacy agreement is terminated pursuant to subsection H of this section.

F. Unless a gestational surrogacy agreement expressly provides otherwise, The marriage of the gestational surrogate after the gestational surrogacy agreement is signed by all parties does not affect the validity of the gestational surrogacy agreement. the consent to the gestational surrogacy agreement of the spouse of the gestational surrogate who marries the gestational surrogate after the gestational surrogate enters into a gestational surrogacy agreement is not required. the spouse of the gestational surrogate who marries the gestational surrogate after the gestational surrogate enters into a gestational surrogacy agreement is not a presumed parent of a child conceived pursuant to the gestational surrogacy agreement. The dissolution of marriage, annulment, declaration of invalidity or legal separation of the gestational surrogate after the gestational surrogate enters into the gestational surrogacy agreement is signed by all parties does not affect the validity of the gestational surrogacy agreement.

G. The marriage of an intended parent after the gestational surrogacy agreement is signed by all parties does not affect the validity of the gestational surrogacy agreement. the consent of the spouse of an intended parent who marries the intended parent after the intended parent enters into the gestational surrogacy agreement is not required. the spouse of an intended parent who marries the intended parent after the intended parent enters into the gestational surrogacy agreement is not a parent of a child conceived pursuant to the gestational surrogacy agreement. The dissolution, annulment, declaration of invalidity or legal separation of an intended parent after the gestational surrogacy agreement is signed by all parties does not affect the validity of the gestational surrogacy agreement, and the intended parents are the parents of the child.

H. A party to a gestational surrogacy agreement may terminate the gestational surrogacy agreement at any time before a gamete or embryo transfer by giving written notice of termination to all other parties to the gestational surrogacy agreement. If a gamete or embryo transfer does not result in a pregnancy, a party may terminate the gestational surrogacy agreement at any time before a subsequent gamete or embryo transfer. Unless a gestational surrogacy agreement provides otherwise, on termination of the gestational surrogacy agreement, the parties to the gestational surrogacy agreement are released from the agreement, except that each intended parent remains responsible for expenses that are reimbursable pursuant to the gestational surrogacy agreement and incurred by the gestational surrogate through the date of termination. Except in a case involving fraud, a party is not liable to any other party for a penalty or damages for terminating a gestational surrogacy agreement pursuant to this subsection.

I. On the birth of a child conceived pursuant to a gestational surrogacy agreement, each intended parent is a parent of the child. A gestational surrogate or the gestational surrogate's spouse or former spouse, if any, is not a parent of the child. If the child is alleged to be a genetic child of the gestational surrogate, a court shall order genetic testing of the child. If the child is a genetic child of the person who agreed to be a gestational surrogate, parentage must be determined based on chapter 6 of this title. A donor is not a parent of a child conceived by assisted reproduction.

J. If, due to a clinical or laboratory error, a child conceived pursuant to a gestational surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent, and not the gestational surrogate or the gestational surrogate's spouse or former spouse, if any, is a parent of the child, subject to any other claim of paternity.

K. an intended parent is not a parent of a child conceived by assisted reproduction pursuant to a gestational surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless both of the following apply:

1. The gestational surrogacy agreement provides otherwise.

2. The transfer of a gamete or embryo occurs not later than thirty-six months after the death of the intended parent, or the birth of the child that is the subject of the gestational surrogacy agreement occurs not later than forty-five months after the death of the intended parent.

L. before, on or after the birth of a child conceived pursuant to a gestational surrogacy agreement, a party to the gestational surrogacy agreement may file a petition in SUPERIOR COURT for determination of a parent-child relationship with admissions of maternity or paternity, as applicable by the intended parents and admissions of nonparentage by the gestational surrogate and the gestational surrogate's spouse, if any. The petition filed pursuant to this subsection shall contain all of the following:

1. A declaration that each intended parent is a parent of the child and an order that parental rights and duties vest immediately on the birth of the child conceived pursuant to the gestational surrogacy agreement exclusively in each intended parent.

2. A declaration that the gestational surrogate and the gestational surrogate's spouse or former spouse, if any, are not the parents of the child conceived pursuant to the gestational surrogacy agreement.

3. A designation of the content of the birth record and that directs the department of HEALTH services to designate each intended parent as a parent of the child conceived pursuant to the gestational surrogacy agreement.

4. A declaration that the court record is not a public record pursuant to THE RULES OF THE SUPREME COURT.

5. The provisions of the gestational surrogacy agreement.

6. If necessary, a request that the child be surrendered to the intended parent or parents.

M. The court may enter an order pursuant to a petition filed pursuant to subsection L of this section before the birth of the child conceived pursuant to a gestational surrogacy agreement. The court shall stay enforcement of the order or judgment until the birth of the child. If a child was conceived pursuant to a GESTATIONAL surrogacy agreement that does not comply WITH THIS SECTION, the court shall determine the rights and duties of the parties to the gestational surrogacy agreement consistent with the intent of the parties at the time of the execution of the GESTATIONAL SURROGACY agreement. Each party to the GESTATIONAL SURROGACY agreement and any individual who, at the time of the execution of the GESTATIONAL SURROGACY agreement, was a spouse of a party to the GESTATIONAL SURROGACY agreement has standing to maintain a proceeding to adjudicate an issue related to the enforcement of the GESTATIONAL SURROGACY agreement.

N. except as expressly provided in a GESTATIONAL surrogacy agreement, if the GESTATIONAL SURROGACY agreement is breached by the gestational surrogate or one or more intended parents, the nonbreaching party is entitled to all remedies available at law or in equity. Specific performance that the gestational surrogate be impregnated, terminate or not terminate a pregnancY or submit to medical procedures is not a remedy available for breach by a gestational surrogate of a provision in a gestational surrogacy agreement. if an intended parent is determined to be a parent of the child, specific performance is a remedy available for BOTH OF THE FOLLOWING:

1. breach of the gestational surrogacy agreement by a gestational surrogate that prevents the intended parent from exercising immediately on the birth of the child the full rights of maternity or paternity.

2. breach by the intended parent that prevents the intended parent's acceptance, immediately on the birth of the child conceived PURSUANT TO THE GESTATIONAL SURROGACY agreement, of the duties of maternity or paternity.

O. A right created under a gestational surrogacy agreement is not assignable and there is no third-party beneficiary of a gestational surrogacy agreement other than the child. If any of the requirements of this section are not met, a court of competent jurisdiction shall determine parentage based on the parties' intent.

P. For the purposes of this section:

1. "Assisted reproduction":

(a) Means A method of causing pregnancy through means other than by sexual intercourse.

(b) iNCLUDES:

(i) Assisted reproductive technology.

(ii) donation of eggs or sperm.

(iii) donation of embryos.

(iv) in vitro fertilization and embryo transfer.

(v) Intracytoplasmic sperm injection.

(vi) Intrauterine or intracervical insemination.

2. "Compensation" means payment of any valuable consideration for time, effort, support, pain or risk.

3. "Donor":

(a) Means an individual who provides gametes intended for use in assisted reproduction, whether or not for compensation.

(b) Does not include a person who gives birth to a child conceived by assisted reproduction.

4. "Embryo" means a fertilized egg that has the potential to develop into a fetus if transferred into a uterus.

5. "Embryo transfer" or "transfer" means the placement of an embryo into a uterus.

6. "Gamete" means a cell that contains a haploid complement of DNA and that has the potential to form an embryo when combined with another gamete.

7. "Gestational surrogacy agreement" means an agreement between one or more intended parents and an individual who is not an intended parent in which the individual agrees to become pregnant through assisted reproduction.

8. "Gestational surrogate" means an individual who is not an intended parent and who agrees pursuant to a geSTATIONAL surrogacy agreement to become pregnant through assisted reproduction using gametes that are not the person's own.

9. "Intended parent" means an individual who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction. END_STATUTE

Sec. 3. Short title

This act may be cited as the "Family Building Act".