California Surrogacy Laws

California Surrogacy Laws

When you’re considering hiring a surrogate mother, you need to be absolutely sure she is in a surrogate-friendly state. California surrogacy laws make it possible for everyone to rest easier. Whether you are an intended parent or surrogate candidate, before you embark on the surrogacy journey, it is important to know the laws governing surrogacy in your state, as the laws vary by state. Over the years, surrogacy has become more common but some states have stricter, more restrictive surrogacy laws than others.

Surrogacy Laws in California Make It Easy

The good news is that California is one of the easiest places to undergo the surrogacy process due to its surrogacy-friendly laws. In 2013, the California Assembly Bill 1217 was passed which stated specific legal requirements for surrogates and intended parents. There have been multiple other laws established that have formed the basis of a great surrogacy state. The information provided is not legal advice but is provided as a guide to understanding the laws governing surrogacy in California.

Are Surrogacy Agreements Legal in California?

Why do intended parents come to California for their surrogacies? Because California surrogacy laws allow surrogacy agreements, also sometimes known as a reproduction agreement. So many other states outright ban surrogacy, or have difficult-to-understand surrogacy laws. Here are some of the surrogacy agreements made in California:

Surrogacy Laws in California

Lawmakers and surrogacy lawyers have used many laws over the years in California. Eventually, they adopted the Uniform Parentage Act, the CA Assembly Bill 1217. Many other California surrogacy laws to form the basis of the facets of surrogacy. These California surrogacy laws are most important because they establish who the intended parents are in relationship to the baby. It helps establish who the surrogate is in relationship to the surrogacy arrangement. These laws cover who the parents are, and different stipulations as to who the surrogate can be (age requirements, etc).

What is the California Assembly Bill 1217?

California Assembly Bill 1217 (AB 1217), enacted in 2012, significantly reformed surrogacy laws in the state, establishing clear guidelines and protections for all parties involved in gestational surrogacy agreements. This legislation aimed to codify best practices and provide legal clarity in surrogacy arrangements.

Key Provisions of AB 1217:

1. Independent Legal Representation: The bill mandates that both the surrogate and the intended parent(s) have separate, independent legal counsel before executing a surrogacy agreement. This ensures that each party fully understands their rights and obligations.

2. Written and Notarized Agreements: Surrogacy agreements must be in writing and notarized or witnessed by an equivalent method, formalizing the commitments of all parties involved.

3. Execution Timing: The agreement must be fully executed before the surrogate begins any medical procedures related to the surrogacy, such as embryo transfer or the commencement of injectable medications.

4. Establishment of Parental Rights: AB 1217 allows intended parents to establish legal parentage before the child’s birth. This can be filed in various jurisdictions, including the county where the child is anticipated to be born, where the intended parents or surrogate reside, where the agreement was executed, or where medical procedures are performed.

5. Confidentiality: The legislation ensures that surrogacy agreements and related documents are not open to public inspection, protecting the privacy of the parties involved.

By implementing these provisions, AB 1217 provides a structured legal framework, like a pre-birth order, for surrogacy in California, safeguarding the interests of surrogates, intended parents, and the resulting children. This clarity has positioned California as a leading state in surrogacy law in the United States, offering a supportive environment for those pursuing assisted reproduction.

Why is California an Important State for Surrogacy?

California is different from many other states on how they interpret a surrogate pregnancy and who the parents of the baby are. By far the differentiating factor for California is that a surrogate pregnancy does not necessarily establish the parental rights to the woman who gave birth to the child. California clearly establishes the difference between gestational surrogacy and traditional surrogacy and therefore does not automatically award the surrogate mother with “parental status” just because she had the baby.  California does its best to make the intended parents who are genetically related to the child become legal parents of that child.

There are many factors that form the basis of the legalities of Surrogacy Law, and we ask all intended parents and surrogate mothers to consult their individual attorneys with any questions they may have.

Legal Parentage Rights

Imagine having a surrogate mother have your baby but you were unable to establish who the legal parents were before the baby was born. Believe it or not, in some states, even a gestational surrogate is recognized as the parent of the child even though they are not genetically related to the child. Though this example can be difficult to reason with, the reasoning does exist in some states. This can be regardless also of who’s genetic material was used. This example would drive many parents crazy, and simply it’s risky to attempt surrogacy in any state where the practice is not fully legal.

Thankfully, the idea of surrogacy is different in California. California surrogacy laws recognize genetic material separately from who carries the baby. This is a paramount distinction.

Intended parents must be aware of the legal process of establishing parental rights. In California, legal parental rights can be established before the baby is born by filling out pre-birth parentage orders. Pre-birth parentage orders are court orders for establishing a parent-child relationship when a gestational surrogate is used to give birth to a baby for the intended parents. Gestational surrogacy does not provide the egg but instead carries an embryo made from the egg and sperm of the intended parents. The gestational surrogate is not genetically related to the child being carried.

Surrogacy Laws in Different States

Here are a few examples of how surrogacy laws are different depending on the state:

• If a surrogate gives birth to the baby in a state that does not permit pre-birth parentage orders, the intended parent or parents in California would have to establish parental rights after the baby is born by completing an adoption.
• In Texas, Intended Parents must be legally married to use a surrogate
• Other states only recognize the carrier of the pregnancy as the mother whether or not she shares genetic material

Commercial Surrogacy: Is it legal in California?

When it comes to compensation for surrogate services, there are two types of surrogacy: altruistic and commercial surrogacy.

As the name implies, altruistic surrogacy refers to a surrogacy agreement in which the surrogate is not given monetary compensation (beyond medical and pregnancy-related expenses covered by the intended parents) for carrying and giving birth to a child for a couple.

Commercial surrogacy is surrogacy in which the surrogate is compensated for her services. In addition to her base compensation, she is reimbursed for any medical expenses incurred during the surrogacy process. Surrogates sacrifice personal time and energy carrying and delivering a baby for the intended parents. It is reasonable for surrogates to want to be fairly compensated. In California, commercial surrogacy is legal and is quite common. The terms of commercial surrogacy must be implicitly stated in the surrogacy contract so that both parties are aware of the financial responsibilities expected from them.

Separate Legal Counsel

According to the California Assembly Bill 1217, intended parents and surrogates must have separate legal representation overseeing the legal aspects of the surrogacy process for each party. This ensures that each party’s needs are fairly and properly met. Intended parents and surrogates must have legal representation before executing the written surrogacy agreement.

Since we have been in business, we have established relationships with many reputable surrogacy lawyers.

Also, Made in the USA Surrogacy’s team of experts is available to answer any questions or concerns you might have regarding the legal aspects of surrogacy. We have years of experience guiding and overseeing the surrogacy process for both intended parents and surrogates. Our primary goal is to make the entire process as seamless and successful as possible. Contact us today and let us help you get started on your surrogacy journey!

Case Law Regarding California Surrogacy Laws

Johnson v. Calvert (1993)

This pivotal case addressed the issue of legal maternity in gestational surrogacy. Mark and Crispina Calvert, unable to conceive naturally, entered into a surrogacy agreement with Anna Johnson, who carried an embryo created from Calvert’s genetic material. After the child’s birth, a dispute arose over parental rights. The California Supreme Court ruled that the intended parent’s, the Calverts, were the legal parents, emphasizing the importance of the parties’ intent in surrogacy agreements.

In re Marriage of Buzzanca (1998)

This case further clarified parentage in situations involving assisted reproductive technologies. John and Luanne Buzzanca arranged for an embryo, created from anonymous donors, to be implanted in a surrogate. Before the child’s birth, the Buzzancas separated, and John contested his parental obligations. The court determined that both intended parents were the legal parents, despite the lack of genetic connection, reinforcing that intent and agreement are crucial in establishing parentage in surrogacy cases. In this case, it makes it clear that a sperm donor or egg donor is not the legal parent of the child born.

Frequently Asked California Surrogacy Laws Questions

What is the family code 7960 in California?

California Family Code 7960 provides a foundational legal structure for surrogacy agreements, ensuring that the rights and obligations of all parties—intended parents, surrogates, and any third parties—are clearly defined. It specifies that surrogacy agreements must be in writing, notarized, and signed before any medical procedures begin. The law also emphasizes the importance of independent legal representation for both the surrogate and the intended parents, ensuring fairness and clarity throughout the process. These provisions help establish the legal parentage of the intended parents, safeguarding their rights as well as the surrogate’s well-being and protection under the agreement.

Are surrogacy contracts enforceable in California?

Yes, surrogacy contracts are enforceable in California. The state has clear laws under California Family Code 7960–7962 that support the validity of surrogacy agreements, provided they meet specific legal requirements. These include being in writing, signed before medical procedures begin, and ensuring both the surrogate and intended parents have independent legal representation. California courts also recognize the intended parents as the legal parents based on the terms of the agreement, making it one of the most surrogacy-friendly states in the U.S.

Does surrogate mother go on birth certificate California?

In California, the surrogate mother’s name does not typically go on the birth certificate if there is a properly executed surrogacy agreement in place. Intended parents can establish legal parentage through a pre-birth order or other legal means, ensuring their names are listed on the birth certificate instead of the surrogate’s. California law supports this process, making it one of the most surrogacy-friendly states by prioritizing the intent of the surrogacy agreement and the intended parents’ rights.