Key Takeaways
- California sets the standard with supportive and inclusive surrogacy laws.
- There are legal requirements to fulfill, but gestational surrogacy is well-supported.
- Laws have been established to protect intended parents and surrogates.
Starting a family through surrogacy may be something you are considering. If you live locally, you need to understand surrogacy laws in California. Your first question may be, “Is surrogacy legal in California?” If so, how does it actually work? Let’s dive into the legal explanations so you can start your surrogacy journey with peace of mind.
California and its Surrogacy Laws
California basically sets the standard when it comes to surrogacy. While the law offers some of the most protective and inclusive statutes in the world, it is important to understand how California’s surrogacy requirements will affect your desire to grow your family. They are accommodating and supportive of a wide range of family structures, but there are still regulations to protect all parties involved.
Key Legal Requirements
Surrogacy laws in California are structured under California Family Code Sections 7960 through 7962, and they provide a comprehensive legal framework for family building. They are created to protect both intended parents and surrogates, but there are some procedural steps that need to be taken before beginning the process.
Independent legal representation
Both parties must have separate attorneys. This is mandatory so that there will be no conflicts of interest down the line. Having separate attorneys ensures that the rights and interests of everyone are covered without bias. All legal terms, risks, rights, and restrictions are carefully explained so everyone is on the same page from the beginning.
Timing
California surrogacy laws are very clear on timing and require that all contracts be completed before any medical procedures can take place. Ignoring California’s surrogacy requirements regarding timing could create a dilemma when it comes to parental rights or even the contract’s enforceability. Fertility clinics are not allowed to start the process without a fully signed legal agreement.
If everything is correct, you could be awarded a pre-birth order, which will establish parentage before the baby is even born. This reduces the chances of a surrogate claiming parentage or the intended parents rejecting their responsibilities.
The contract
State law requires that certain points be covered in the legal contracts. Ultimately, these California surrogacy laws are a protective measure, ensuring the baby has an established place in the world from day one.
- Did the parents or donors provide the eggs, sperm, or embryos?
- What happens if there are twins or triplets?
- What compensation will be paid, and who pays the bills?
- What happens on the day of the birth, and who takes the baby home?
California’s surrogacy requirements are fairly straightforward, but it’s important to cover all important steps.
There will be psychological and preliminary medical screening, legal agreements must be finalized, and a legal clearance letter must be sent to the fertility clinic. To satisfy all California surrogacy laws, all of this must happen before the clinic can start with injectable medications or schedule the embryo transfer.
Types of Surrogacy
Gestational surrogacy is regulated and standardized across California. This is where the surrogate has no biological ties to the baby. Both the egg and sperm come from either the intended parents or from donors.
Traditional surrogacy is where the surrogate uses her own egg, but the sperm comes from either the intended father or from a donor. It is less regulated and, as such, comes with a few risks. Legal experts generally advise parents that California surrogacy laws are less supportive of traditional surrogacy.
A Bit of History
California didn’t automatically decide to be a forerunner in surrogacy laws. It’s taken time and many cases to set the standard and build a solid legal foundation to protect surrogates and intended parents. These laws were designed to give everyone involved in a surrogacy journey peace of mind. There should be clear expectations, and each party should know that they are legally secure.
Before the laws were passed, judges made rulings on individual cases, and precedents were set. It may be fair to say that California’s surrogacy requirements have been built on the foundation of these cases. In fact, this helped to transform precedents into statutes, and today, California surrogacy laws ensure that your parental rights are protected before your baby is born.
In Johnson vs. Calvert, the California Supreme Court ruled that when genetic and gestational roles are separate, the legal parents are the people who intended to create and raise the child. In 1998, the case of In re Marriage of Buzzanca added to this concept for families using both donor eggs and donor sperm.
Together, these historic rulings formed the legal backbone that allows single parents, LGBTQ+ couples, and families using donor gametes to be fully recognized as the legal parents from day one.
Establishing Parentage
How does surrogacy work in California, and how is parentage established? Let’s consider PBOs and how important they really are.
What is a pre-birth order (PBO)?
California surrogacy laws pave the path to establishing parentage from before the child’s birth. They allow pre-birth orders, which is how legal parentage is established before the birth date.
A copy of the pre-birth order needs to be given to the hospital where the delivery should take place. California’s surrogacy requirements outline that lawyers should file the petition during the second trimester. There is usually no need for the intended parents or surrogate to go to court, as this is often done without a hearing. The court records are also usually sealed to protect your privacy.
Who can obtain a pre-birth order?
According to California surrogacy laws, any intended parent who completes a legally compliant surrogacy agreement can get a pre-birth order. There are very few hurdles to cross in the state. Eligible people include:
- Married or unmarried intended parents
- Single parents
- Same-sex couples and LGBTQ+ families
- Parents using donor gametes (no genetic link required)
- Non-USA intended parents.
Legal Protections
California’s surrogacy framework is built on a foundation of mutual protection. By removing legal guesswork, state statutes safeguard the emotional, physical, and legal well-being of intended parents, surrogates, and international families alike.
Protecting intended parents
With a pre-birth order, intended parents are guaranteed parentage without having to file for adoption. California surrogacy laws recognize them as the legal parents before the baby is born. They also have authority at the hospital immediately after birth, so they can make emergency decisions for the baby.
Additionally, because of California’s surrogacy requirements for completed agreements, they are safeguarded in a case of changed intent. In other words, the surrogate would need to complete her end of the deal, too.
Protecting surrogates
Surrogates are equally protected. By law, they have to have independent representation so they get unbiased legal counsel. Their compensation needs to be clearly outlined and defined, and they get to make their own medical decisions (although not those affecting the baby after birth).
California surrogacy laws require clarity and transparency about all medical stages as well. Thus, the surrogate knows what to expect, can prepare for emergency procedures, and can make her own health care choices. Choosing where the birth will take place and how it will happen is something that would be mutually agreed upon early in the process.
Protecting international intended parents
Intended parents from around the world can all enjoy the same parentage benefits in this state. Of course, they would need to meet all the basic surrogacy requirements in California, but they do not have to be citizens, and there are no residency requirements to fulfill.
The advantage of California surrogacy laws clearly presents itself when the intended parents’ names go directly onto the birth certificate. As the baby is born in the USA, they can apply for the baby’s U.S. passport. Travelling home can thus happen with minimal delays.
Between the pre-birth order and a California birth certificate, intended parents can get an apostille, which means that under international law, they will be recognized as the legal parents of the baby.
Contact Family Creations Today
Working with a reputable surrogacy agency like Family Creations is very important. We have over 20 years of experience and adhere to all California surrogacy laws. Contact us, and we will help you match with prospective surrogates, do all the initial screenings to ensure viable matches, and coordinate meetings with the best medical and legal professionals so you can focus on your new baby coming soon.
FAQs
Do California surrogacy laws support LGBTQ+ families?
Yes. LGBTQ+ parents enjoy the same legal rights and have the same surrogacy requirements in California as heterosexual parents.
What happens if the surrogate’s personal policy excludes surrogacy?
Intended parents can purchase a standalone, surrogacy-specific health insurance policy for the surrogate. With insurance in place well before the embryo transfer, you can avoid surprise medical bills.
What happens legally if a California surrogate moves to another state before giving birth?
As per California surrogacy laws, establishing legal parentage shifts to the court system of her new state. While your California contract stays valid, moving to a state with strict surrogacy laws can be problematic, which is why California contracts include strict rules against moving without approval.
