Legality of Surrogacy in California

If you are thinking about becoming a gestational carrier or parent through surrogacy in California, you’re in luck! California is one of the most surrogacy-friendly states and has a thirty-year history of protecting the rights of intended parents and gestational carriers. In fact, California courts were some of the first to recognize parental rights based on intent to have a child, rather than biological ties or the identity of the birth mother, in the landmark cases of Johnson v. Calvert (1993) and Buzzanca v. Buzzanca (1998). In these cases, California courts saw the intended parents’ affirmative steps to undergo IVF, find a surrogate, and sign a contract as evidence of their intent to be the child’s legal parents. These cases set the precedent that recognizing the intended parents’ legal rights was the best way to establish a stable, healthy life for a child born via reproductive technology.

 Since these groundbreaking cases, California has passed state-wide laws legalizing surrogacy, establishing best practices, and safeguarding the rights of intended parents and gestational carriers. We can guide you step-by-step through the process of building a family through surrogacy in California!

 Who can be a gestational carrier in California?

 Those wishing to become gestational carriers must undergo medical and psychological screenings. Typically, fertility clinics and matching programs require a gestational carrier candidate to be between 21 and 41 (give or take) years old and have given birth at least once before, without pregnancy or delivery complications. Further, fertility clinics often have requirements related to BMI, citizenship or legal residency, and lifestyle (no smoking – cigarettes or anything else!). It is important to note that California does not have any citizenship/residency requirements for intended parents and is friendly towards international parents paired with a surrogate in California. If you would like to be matched with a gestational carrier in California or are thinking of becoming a surrogate, we can walk you through what this process will look like for you.

 A gestational carrier is matched with a family—what happens next?

 Once intended parents are matched with a gestational carrier, and the gestational carrier is medically and psychological cleared to move ahead, the contract drafting phase begins. (That’s the fun part! According to attorneys.) California surrogacy laws require that intended parents and gestational carriers are represented by their own legal counsel. Attorneys will draft the surrogacy contract (called the gestational carrier agreement or GCA), negotiate the terms, and finalize an agreement that all parties are comfortable with. GCAs in California must be signed before a notary by all parties before the surrogate may start any medication in connection with the embryo transfer. California law specifies certain provisions that the GCA must contain, including the date it was signed by all parties, the identity of all parties, and whether sperm, eggs, or embryos were donated. A GCA will also address the risks and responsibilities of each party, compensation for the surrogate, and how the parents will cover medical expenses of the surrogate and newborn (this is typically through health insurance). It is also crucial that the GCA reflect agreement on how the parties will approach difficult situations, such as whether termination or reduction of the pregnancy would ever be appropriate (if the surrogate’s life or health was in jeopardy, for example). Your attorney can explain the important features of the surrogacy contract and tailor them to your and your family’s needs.

 How do parents protect their legal rights in California?

 The GCA will also outline the process for obtaining legal recognition of the parents of the child. This is generally done through a pre-birth parentage petition, resulting in a pre-birth order (“PBO”). A PBO is an order issued by a judge which will declare that the intended parents are the legal parents of the child at the time of birth (and that the gestational carrier, her spouse or partner (if applicable), and any donors are not legal parents of the child). Your attorney will draft the petition for a PBO with the required documentation and submit it to the appropriate court, generally during the second trimester of pregnancy. California law permits the PBO petition to be filed in the county where the child is to be born, the counties where the surrogate or the intended parent(s) live, the county where the GCA was executed, or the county where medical procedures were performed. Typically, no hearing is required to obtain a California PBO, but may vary by county. PBOs are issued in California regardless of whether the intended parents are married or genetically related to the child. This means that California is a safe state for LGBTQ+ parents to have children through surrogacy and secure their legal rights.

 Intended parents working with a California gestational carrier do not need to undergo an adoption to further protect their parental rights. (Phew! Who wants another court process to deal with?) In most situations, a PBO is sufficient to automatically put the intended parent(s) name(s) on the child’s birth certificate. However, if intended parents from California work with a surrogate who gives birth in a state where they cannot obtain a PBO, they can return to California to complete a second-parent adoption to establish their parental rights.

 More questions?

 If you have more questions about the law or surrogacy process in California, contact us. We’re here to help you through this journey.