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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.
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 to meet and 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.
Surrogacy Agreements: Are they legal in California?
California allows surrogacy agreements. Lawmakers and surrogacy lawyers use many laws over the years adopted between the Uniform Parentage Act, the CA Assembly Bill 1217 and many others to form the basis of the facets of surrogacy, who the intended parents are in relationship to the baby, and who the surrogate is in relationship to the surrogacy agreement. These laws cover who the parents are, different stipulations as to who the surrogate can be (age requirements etc).
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. 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
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 a pre-birth order. A pre-birth order is a court order for establishing a parent-child relationship when a gestational surrogate is used to give birth to a baby for intended parents. A gestational surrogate does not provide the egg but instead carries an embryo made from the egg and sperm of the intended parents.
If a surrogate gives birth to the baby in a state that does not permit pre-birth orders, the intended parents in California would have to establish parental right after the baby is born by completing an adoption.
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 being reimbursed for any medical expenses incurred during the surrogacy process. Surrogates sacrifice personal time and energy carrying and delivering a baby for intended parents and it is reasonable for surrogates to want to be fairly compensated. In California, commercial surrogacy is legal and is actually quite common. The terms of a 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 parties’ needs are fairly and properly met. Intended parents and surrogates must have legal representation prior to executing the written surrogacy agreement.
LGBT+ and Same-Sex Surrogacy
The legal process of surrogacy for LGBT persons and same-sex intended parents in California is the same as that for opposite-sex intended parents. The only difference is that same-sex couples would have to undergo in vitro fertilization using a sperm or egg donor. Otherwise, the surrogacy process is pretty much the same, and LGBT+ couples can establish parental rights via a pre-birth order.
It is always good to speak with a professional if you need clarification on any aspect of the surrogacy laws of California. As we mentioned earlier, California is a surrogacy-friendly state, and there are many surrogacy attorneys available to help you navigate the legal parts of the surrogacy journey.
Also, Made in the USA Surrogacy’s team of experts are available to answer any questions or concerns you might have regarding the legal aspects of surrogacy. We have years of experiencing 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!