Overview of California Surrogacy Law
Around 1848, news of gold in California brought approximately 300,000 people to California from the United States and around the world as part of the famous “gold rush”. In 2012, California was one of the first states to pass laws (California Family Code sections 7960, 7961, and 7962), legalizing gestational surrogacy and establishing best practices for surrogacy, which in turn has created a similar impact as the gold rush, in that, California is one of the most surrogacy friendly states bringing people from around the United States and the world to legally proceed with surrogacy in California.
Prior to the passage of the California surrogacy laws, California was the first state where the California Supreme Court upheld the parental rights of intended parents pursuant to a gestational surrogacy arrangement and enforced a surrogacy agreement (where at the time, the climate in the United States in large part criminalized surrogacy). In the case of Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr. 494 (1993), the California Supreme Court granted custody of a child born via surrogacy to the intended parents who created embryos using their own gametes and had those embryos transferred into a gestational surrogate. Additionally, in In Re Marriage of Buzzanca, 72 Cal.Rptr.2d 280 (1998), the California Court of Appeals recognized intended parents as the legal parents of a child born as a result of a gestational surrogacy agreement involving egg and sperm donors not genetically related to the intended parents based on the intent of the parties’ gestational surrogacy agreement as a matter of public policy.
California surrogacy laws govern the requirements of the gestational surrogate, and requirements of the intended parent(s), and provide certain provisions that must be included in a California gestational surrogacy agreement.
California Surrogacy Law Requirements of Surrogate:
- must be represented by separate independent licensed attorney of her choosing
California Surrogacy Law Requirements of Intended Parents:
- must be represented by separate independent licensed attorney of Intended Parent(s)’s choosing
- an intended parent in California means an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction
California Surrogacy Law Requirements for Surrogacy Agreement: A California surrogacy agreement must include the following provisions based on California surrogacy law. A properly drafted California surrogacy agreement shall contain many other provisions based on best practices and provisions typically provided in a surrogacy agreement however the following are some of the notable legal requirements of what must be included in a California surrogacy agreement:
- Prior to the surrogate undergoing the embryo transfer or starting injectable medications in preparation for an embryo transfer, the parties must execute a dated gestational surrogacy agreement, notarized or witnessed per California law, specifying the genetics of the embryo and the identity of the intended parent(s)
- Based on California Family Law section 3030, California surrogacy agreements typically include a representation that intended parent(s) have not been convicted of a crime with a sexual component such that the intended parent(s) is a registered sex offender or would be required to register as a sex offender under any state or federal law in the United States or an intended parent’s home country
California Pre-Birth Parentage Proceedings:
The parentage proceedings, to confirm the parental rights of the intended parent(s), are filed prior to the birth of the child in California by obtaining a pre-birth order. Pre-birth parentage court proceedings in California can take place in (1) the county where the child is anticipated to be born, (2) the county where the intended parent(s) reside, (3) the county where the surrogate resides, (4) the county where the surrogacy agreement is executed, or (5) the county where the embryo transfer occurred. The California pre-birth order shall establish the parent-child relationship of the intended parent(s) identified in the surrogacy agreement and shall establish that the surrogate, her spouse, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.
California is a surrogacy-friendly state which provides a clear path to parenthood for those proceeding with surrogacy in California. Consult with a California surrogacy attorney to determine if California surrogacy law applies to your journey. Greenspoon Marder’s surrogacy practice group is honored to assist intended parent(s) or surrogates with surrogacy matters based in California. Greenspoon Marder’s has offices located in Los Angeles, California.
