Surrogacy Law FAQ

© March 2013 Deborah H. Wald

Q. Is surrogacy legal in California?

A. Yes.  However, there are two different kinds of surrogacy: “traditional” surrogacy and “gestational” surrogacy. With traditional surrogacy, the woman carrying the child is also the genetic mother – as a general rule, she conceives through artificial insemination with the intended father’s sperm, but using her own egg.  The law on traditional surrogacy in California remains very unclear, and it is possible that the “traditional surrogate” will be the legal mother and that one or both of the intended parents will end up having to adopt the child.

With gestational surrogacy, the woman carrying the child is not genetically related to the child – an embryo is created in vitro, using either an intended mother’s eggs or the eggs of an egg donor, fertilized with the sperm of an intended father or a sperm donor, and then the embryo is transferred into the uterus of an unrelated carrier.

As of January 1, 2013, California law (AB1217) now is completely clear that gestational surrogacy is legal as long as appropriate rules are followed, the most important of which are detailed below.

Q. Is surrogacy legal for single people and for gay couples, or only for heterosexual married couples?

A. In California, surrogacy is an equally good and legal option for singles as for couples, for unmarried couples as for married couples, and for gay couples as for straight couples.  What matters is that the intended parent or parents make sure that they are represented by skilled and experienced counsel who will make sure that all i’s are dotted and t’s crossed.  As long as everything is done correctly, all parties – intended parents and surrogates – will be well-protected.

Q. We are thinking about having a baby through surrogacy.  What role does a lawyer play in that process?

A. An attorney fundamentally has two separate roles in the surrogacy process:  (1) the attorney will prepare a written contract for you and your surrogate; and (2) the attorney will bring the legal action to make you the child’s parents.  In addition, an attorney who is experienced in assisted reproduction law can help you make sure that you and your surrogate are a good match, can help you figure out insurance for the surrogate and the baby, and can help you troubleshoot any issues that might come up between you and your surrogate during the pregnancy.

Q. Can one lawyer represent both me and my Surrogate?

A. No.  Under a new California law (AB1217), effective January 1, 2013, for a surrogacy contract to be legally binding the intended parents and the surrogate must each have been represented by independent legal counsel of their own choosing.  Most agencies, and most fertility clinics, will be able to recommend experienced surrogacy attorneys for you and your surrogate.

Q. What should be included in our surrogacy contract?

A. A surrogacy contract needs to address at least these issues:

(1) What is the source of the gametes?  By law, the surrogacy contract must identify the source of the gametes (eggs and sperm).  So if an egg or sperm donor is used, that must be indicated in the contract with the surrogate; and if the intended parents are a gay male couple, the contract should specify whether the sperm of one or both intended fathers is being used.  However, it is sufficient to state that the eggs or sperm come from an anonymous donor – no identifying information is required under these circumstances.

(2) What is the surrogate being compensated for, and how much is she being compensated?  Typically, a contractual surrogate is paid a “base fee” for her gestational services, and then is additionally compensated for things like any invasive procedures, carrying multiples (twins or triplets), travel expenses, lost wages, maternity clothing, legal fees, provision of breast milk, etc.  The exact compensation terms should be spelled out in the contract to avoid any confusion or misunderstandings about fees.

(3) Who will hold escrow?  Under California law, the surrogacy agency cannot hold the funds.  Surrogacy funds must be held by either a licensed attorney (who will hold the funds in a state registered legal trust account that is governed by State Bar rules) or a licensed, bonded escrow company.  This is to protect both intended parents and surrogate from the funds disappearing in the middle of the surrogacy process.  Some attorneys for the intended parents will hold escrow, but many will not because they believe this is a conflict of interest.  If there is a conflict between the surrogate and the intended parents over payment of fees or expenses, the attorney for the intended parents needs to be available to advocate for the intended parents, and this may be inherently inconsistent with the neutral role of a person holding the funds in a fiduciary capacity.

(4) What behaviors are expected of Intended Parents and Surrogate?  A surrogacy contract generally will set out behavior expectations for intended parents and surrogate including compliance with all medical directives, dietary and travel restrictions during pregnancy, agreements on communication about the pregnancy and attendance at prenatal visits, who will be in the delivery room, etc.

(5) How many embryos will be implanted and what is the plan re: selective reduction?  The intended parents and the surrogate need to be in agreement about multiple pregnancies.  If the intended parents are clear that they will not selectively reduce a triplet pregnancy unless there is a serious medical issue with one of the babies or continuing the pregnancy would be dangerous for the surrogate, then they need to be matched with a surrogate who is willing to carry triplets.  On the other hand, a surrogate who is unwilling to carry more than twins will be a perfect match for intended parents who are unwilling to have more than twins.  The contract needs to clarify the plan regarding implantation and reduction, to set expectations and avoid a mismatch of intended parents and surrogate.

(6) What is the plan for assuring that the Intended Parents end up the legal parents, and the Surrogate is not held legally responsible for the child?  A surrogacy contract will always state clearly that the intended parents will be the legal parents and the surrogate (and her husband, if she has one) will not; and the contract also should specifically set out the plan for assuring that parentage is established in a timely manner and pursuant to the laws of the relevant state(s).  Since each state has its own laws and procedures for establishing parental rights, the exact manner for addressing this will vary depending on the states where the surrogate and intended parents live.

Q. If we use a surrogate to carry our child, at what point are we recognized as legal parents?

A. As long as you have followed proper procedures, and assuming your child was conceived in California, you will be able to get a judgment making you legal parents prior to your child’s birth.  I generally recommend waiting until the 2nd trimester – after the worst dangers of miscarriage are over – and then filing for parentage as quickly as possible and no later than the 25th week.  Courts often take a month or more to process these actions, so it is best to leave plenty of time.  Generally speaking, if the legal work is done correctly, most California courts are granting pre-birth surrogacy judgments on the papers, with no actual court appearance required.  Your attorneys will draw up all the papers for you, making it a pretty stress-free process for surrogate and intended parents.

It is important to note that even though many California courts are routinely issuing pre-birth judgments in surrogacy cases, these judgments do not technically go into effect until a baby is born, to avoid a legal conflict over medical decision-making prior to birth.  Therefore, the Surrogate remains in full control over her prenatal care and medical choices prior to the moment of delivery, contingent on whatever the contract between surrogate and intended parents specifies in this regard.

Q. Since different counties have different procedures for getting pre-birth orders, can I (or my lawyer) choose the county with the best procedures and file our pre-birth action there?

A. A new law, which went into effect on January 1, 2013, provides that a court action to determine parentage of a child born through gestational surrogacy can be brought in the county where the intended parents live, the county where the child was conceived, the county where the surrogate lives, or the county where the child is born.  This usually gives the parties at least a couple of choices of appropriate venues for their court action.

Q. What happens if we use an out-of-state surrogate?

A. If your child is conceived in the state of California, California courts retain jurisdiction to determine parentage.  (California courts have jurisdiction to determine the legal parentage of any child conceived in California, whether conceived through sex or through assisted reproduction.)  Therefore, if you are using an out-of-state surrogate but want California law to apply, you need to make sure that your child is conceived here.  That said, your child’s birth certificate will be issued by whatever state your child is born in, and some states take issue with California courts telling their departments of vital records what to put on a birth record.  This can be particularly problematic for gay couples having children through surrogacy, as not all states will issue birth certificates reflecting that a child has two parents of the same sex.  For these reasons, it always is a good idea to seek the advice of an attorney in the state where your child will be born, preferably prior to making a final decision to use a surrogate from another state.

DISCLAIMER: This article is intended to provide general information about selected legal topics. The information provided is not legal advice, and is published for informational purposes only. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between the sender and the receiver. No reader should act on information contained in this article without obtaining the specific advice of legal counsel. The attorneys at Wald & Thorndal, P.C. are licensed to practice law in the State of California, and do not offer advice as to the laws of any other state.