Surrogacy refers to an arrangement when a woman agrees to carry a baby for a couple who is unable to do so on their own. There are two types of surrogate pregnancies: traditional (the surrogate provides her own egg, making her the biological mother of the child) and gestational (the intended mother or separate egg donor provides the egg, so the surrogate bears no biological relationship to the resulting child).
Surrogacy laws vary by state, and some are quite restrictive towards surrogacy arrangements. Unlike some other states, California allows surrogate agreements for regardless of the marital status or sexual orientation of the intended parents. The state allows surrogacy agreements that are either altruistic or commercial.
Surrogacy Laws in California
California is often described as a “surrogate friendly” state, but it does not have a specific statute dedicated to surrogacy law. California has its version of the Uniform Parentage Act, as well as relevant case law, to determine the legal issues surrounding surrogacy agreements within the state.
In 1993, the landmark California Supreme Court case Johnson v. Calvert established that where a valid surrogacy agreement exists, the intended parents should be recognized as the legal and natural parents. In 2005, these rights were extended to same-sex parents, with a ruling deciding a child could have two legal mothers listed on the birth certificate.
California requires the intended parents of a child born to a surrogate establish parentage before the child is born. This circumvents the need for adoption proceedings. The state mandates that both the intended parents and the surrogate retain separate legal counsel during the process.
Surrogacy Agreements and Enforcement
When the intended parents and a prospective surrogate decide to bring a child into the world, a surrogacy agreement is signed. A surrogacy agreement will clearly state that the intended parents should retain physical and legal custody of any resulting children, which the surrogate has no intention of parenting. It will also detail the rights and responsibilities of each party, and other agreements about compensation, expenses, communication, etc. To be legally enforceable, California law states a surrogacy agreement must be executed and notarized before any medications or procedures are administered to the surrogate.
The biggest fear for many couples considering surrogacy is that the surrogate will decide she wants to keep the baby. However, California courts consistently uphold legally enforceable surrogacy contracts. Because state law allows the intended parents to establish parentage before the birth of the child, there is no required waiting period for the birth mother to change her mind, as is the case for adoption. Once parentage is established, the intended parents retain all legal rights to the child. To keep the child, surrogate mother would need to convince the intended parents to voluntarily relinquish their rights to the child.
California Adoption and Surrogacy Attorneys
If you are considering surrogacy, call the experienced family law attorneys at R & S Law Group, LLP. We are happy to assist you with surrogacy agreements, establishing parentage, and other related legal matters. Contact our office in Orange, California to request a free consultation.