Gestational Surrogacy Law in California
California Family Law Sections 7960 – 7962 (2013) outlines the surrogacy laws in California; these laws are some of the most straightforward in the United States making it one of the easiest places to become a parent through surrogacy.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in California, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in California.
Is Gestational Surrogacy Legal in California?
Yes. Gestational surrogacy is a common and well-regulated way to build your family in California.
Is Traditional Surrogacy Legal in California?
Yes. Traditional surrogacy is not directly addressed in California surrogacy laws; therefore it’s not illegal but this means that it’s not well regulated. Traditional surrogacy is also more difficult to navigate legally and typically has more emotional risks associated with it since the surrogate is genetically tied to the baby.
Is Compensated Surrogacy Legal in California?
Yes. Compensated surrogacy is legal in California and is regulated by California surrogacy laws. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a California Surrogacy Contract
California surrogacy laws require that both parties in a surrogacy agreement have their own legal representation when drafting a surrogacy agreement or contract.
By law, a surrogacy contract in California must contain:
- The date it was executed
- The source of the egg, sperm or embryo (if applicable)
- The identity of the intended parent(s)
- The process for any necessary pre-birth or parentage orders
The attorneys will work together to negotiate an agreement that addresses at least the following:
- Risks and responsibilities of each party
- Surrogate compensation
- Agreement on sensitive issues like selective reduction and termination
- Expectations on contact and who will be present at important appointments and during birth
- And more
Surrogate contracts must be notarized before any medication in connection with the embryo transfer procedure. Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.
Determining Legal Parentage in California
Pre-birth parentage orders are permitted in California surrogacy legislation. No hearing is needed to obtain these pre-birth orders so confirming the intended parents’ legal parental rights prior to the birth of the baby is relatively easy.
The exception to this would be if unmarried intended parents work with a surrogate who delivers in a state that does not allow pre-birth or parentage orders, they will usually need to complete an adoption in California after their child is born to establish their parental rights.
Same-Sex Surrogacy in California
Q: Is Same-Sex Surrogacy Legal in California?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in California?
A: No. There are no additional laws impacting same-sex surrogacy in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in California?
A: Yes. Surrogacy contracts completed legally according to the state statutes are enforceable in California.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in California?
A: No. All surrogacy laws in California that apply to domestic intended parents also apply to international intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: When unmarried intended parents from California work with a surrogate who gives birth in a state where they cannot obtain a pre-birth or parentage order, they can return to California to complete an adoption and establish their parental rights.
Q: Does Calfornia Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are available to unmarried couples to secure their parental rights over a child who is conceived via a gestational carrier arrangement.
Stepparent adoptions are available to married couples.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm, or Embryo?
A: Intended parents who complete a surrogacy in California are usually able to obtain a pre-birth order regardless of whether they used a donor egg, sperm or embryo. California laws clearly state that neither a sperm donor nor an egg donor is a parent when their gametes are used in assisted reproduction and result in a child.
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