The Legal Status of Surrogate Arrangements in California
California is one of the few states that recognizes the legality of surrogate contracts and therefore, the possibility of entering into an valid surrogacy agreement. California Family Code sections 7960 to 7972 are California statutory provisions that allow for the enforcement of a gestational surrogate contract if it meets the requirements of the statute.
The statute specifically lays out the requirements for a valid enforceable surrogate contract . For example, both the intended parents must be genetically related to the child, which means that they must be biologically related to the egg and sperm that were used for insemination. The surrogate mother must be at least 21 years old. The surrogate must be represented by counsel throughout the process. The statutes also address the compensation and expenses that can be provided in exchange for acting as a surrogate mother. The statute also provides points of law to address only gestational surrogate contracts, but not traditional surrogate contracts which require that the surrogate be genetically related to the child.
Different Types of Surrogacy
California law recognizes two types of surrogacy arrangements: gestational and traditional. While both are legal, there are significant distinctions between the two with respect to the role of the surrogate and the legal parentage of the child under California law.
Traditional Surrogacy
In a traditional surrogacy arrangement, the surrogate, who is always the mother of the child under California law, is also the genetic contributor to the child. Therefore, the surrogate shares a biological relationship with the child and is generally not considered "identified" under California Assisted Reproductive Technology (ART) Law as to which transferring embryo will be used to attempt pregnancy. In this scenario, therefore, the child conceived through surrogacy has a legal and genetic connection to the surrogate, as she is both a genetic and birth mother of the child.
Gestational Surrogacy
In a gestational surrogacy arrangement, the surrogate is not a genetic contributor to the child. She may use her own egg or may have an egg from a donor. The husband of the surrogate may be used to create the embryo through ART, or a sperm donor may be used to achieve the pregnancy. In a gestational surrogacy, the surrogate is not the genetic contributor to the child, but rather her role is to nourish and give birth to the child. Under California law, therefore, the surrogate has no legal relationship to the child following birth (as the law presumes that the intended parents have consented to the birth of the child with her), unless the surrogate and intended parents have entered into an agreement to establish the surrogate’s relationship to the child, or through adoption.
It is critical that intended parents contract with their surrogate regarding their wishes for deciding which embryo or embryos are selected to transfer to the surrogate’s uterus. This is particularly true in the event that there are multiple embryos created by use of ART procedures which may result in potential legal and parental issues for the parties. Additionally, such a legal framework can protect against a surrogate’s challenge to her relinquishment or waiver of all parental claims, which is generally not permitted under California law when the surrogate is instead a genetic contributor.
Whether intended parents opt to participate in a traditional or gestational surrogacy, they must follow the legal formalities under California law for establishing and protecting their parental rights following the adoption/termination of parental rights process with the surrogate. These include a genetic connection to the child to ensure that a California court will grant the pre-birth order upon timely request.
Demands Placed on the Intended Parents
In California, there are specific legal requirements that must be met in order for intended parents to engage in a surrogacy arrangement. While many states have different requirements, California has three basic requirements.
First and foremost, the intended parents, as a couple or as individuals, must be genetically related to the child. If none of the intended parents are genetically related to the child, the surrogacy contract is void and unenforceable. In this case, the intended parents are not the legal parents, and the surrogate is the legal parent. While this is the law in California, most of the country does not require genetic relationship to pursue surrogacy. Legislative attempts to change the law in California have so far been unsuccessful.
Second, the intended parents must be competent to contract. Generally speaking, individuals over age 18 are deemed competent to contract. The intended parents must be married or unmarried individuals of the same or different sexes and must consent to the surrogacy process. However, single parents may not be permitted to enter into surrogacy contracts with a gestational surrogate. A gestational surrogate can be defined as a woman who carries and gives birth to a child that is not biologically related to her, but is rather conceived through artificial reproductive techniques, such as IVF, using sperm and/or egg from an individual not related to the surrogate.
Third, surrogates must meet certain criteria and complete a psychological screening in order to be a surrogate. California courts generally look for surrogates to be financially secure, in good medical health, and to have cared for at least one child of her own. A psychological evaluation is also required, typically to ensure the surrogacy cycle is medically safe for the surrogate and to determine the motivations for entering the surrogacy arrangement.
Requirements for the Surrogate
Regulations for Surrogates in California
Women interested in becoming surrogates in California need to agree to the legal impact of those obligations and restrictions early on in the pregnancy. Women wishing to be a surrogate must follow procedures to obtain the consent of the corresponding parents via a gestational or surrogacy agreement, or they may be required to give up the child at birth. In most surrogacy agreements, the surrogate signs away her parental rights. While most surrogacy contracts are honored, surrogates should be aware of the possibility of disputes with the intended parents. Failure to obtain the proper consent can lead to parental rights and inheritance issues for the surrogate and their family.
California law has specific provisions for the treatment of children born from a surrogate. Parental rights and obligations are governed by the Uniform Parentage Act ("UPA"). Under UPA, a married couple who use a gestational carrier or surrogate are presumed to be the parents of a child born through the coupling. California law used to presume that the surrogate was the legal parent until Paternity tests or other proofs of non-parentage could be established. Now, when the surrogate is married, there is a rebuttable presumption that the surrogate’s spouse is the parent with equal rights to the other intended parents. This means that unless the rebuttable presumption is satisfactorily demonstrated to not exist, the surrogate’s spouse has equal rights to parent the child. This rebuttable presumption could be a major issue for married male surrogates who may not have biological paternity over any potential children. California law has no provision to remove the surrogate’s spouse as parent, therefore that person does have full rights of parenthood over the child until a court order terminates said parenthood.
In some situations, it is unclear if the surrogate is pregnant with multiple or single babies. Under California law, in these circumstances, the surrogate must comply with both the surrogate agreement and California Family Code 7646. This code deems the surrogate a parent of any child(ren) conceived during the agreement and born from the implantation of the egg and sperm or pre-embryo into the surrogate.
Legality and Binding Nature of Surrogacy Agreements
In California, surrogacy contracts have long been recognized as legally binding and enforceable, provided that certain requirements are met. Under California law, there are very specific agreements entered into by the intended parents and the surrogate, and the contract is enforceable even if the surrogate does not ultimately give birth to the child. In order for a surrogacy agreement to be enforceable in California, however, it must be in writing at least 10 days before conception takes place and signed by all parties. The contract must be approved by the court within 5 days of approval (no appearances are needed). Also, both spouses of the surrogate must be aware of the surrogacy agreement, and they must consent to the agreement (if the surrogate is married). However, the husband of the surrogate is not required to be financially responsible for the child unless he also agrees to participate in the surrogacy. It may also be possible to sign the surrogacy agreement before the surrogate becomes pregnant. In such a situation, the surrogate must be evaluated by an independent mental health professional, and receive counseling on the process and consequences of the surrogacy agreement . As long as the surrogacy agreement complies with California law and requirements, it may be enforceable, and the intended parents may be allowed to secure a court order establishing their names as the legal parents of the child even if the surrogate is genetically related to the child. The surrogacy agreement must also have the following clauses in order to be considered enforceable by a court: Despite the requirements of enforceability under California law, one critical issue concerns who exactly are the actual parents of the resulting child. Furthermore, in some cases, if the surrogate is involved in the process, that the surrogate will retain some parental rights, and the surrogacy agreement might not invalidate any parental rights the surrogate might have in the future. When it comes to commercial surrogacy (where only financial remuneration is involved), some courts might be hesitant about recognizing the agreement. For this reason, an increasing number of states are discouraging the creation of parental rights where there is a traditional surrogacy arrangement.
Inheritance Rights Regarding the Surrogate Child
In California, the law is explicit that the child of a surrogate, regardless of whether the surrogate is the biological mother or not, is not a child of the surrogate. Because a surrogate child is legally the child of the intended parents, the child will have the same rights as any child born to them through other means, including paternity and maternity rights.
Any child born through surrogacy has all the legal rights of a natural child of the intended parents, and the rights of the surrogate do not supersede those of the intended parents. In fact, they are not the legal parents in the first place, absent the execution of a written agreement between the intended parents and the surrogate that designates the intended parents as the legal parents of the child.
It is not possible for a surrogate to assert the right to be a parent of the child. As a protector of the child’s interest, the court will recognize only the legal rights of the intended parents to parent the child.
The surrogate’s legal agreements with the intended parents will be strictly enforced. The surrogate does not have a superior interest to the child despite giving birth to him or her. The surrogate’s parental rights, however, do not disappear upon execution of the surrogate agreement; they will continue until the approval of the final adoption.
If the intended parents or surrogacy agency should go back on their agreement, the surrogate can enforce the contract and can obtain monetary relief if the court finds the intended parents to have breached the contract.
How Surrogacy Agreements Are Enforced
Disputes and Resolution
As in any legal agreement, the surrogacy contract sets forth the rights and obligations of both parties involved. Therefore, if a disagreement arises, the terms of the contract are what will be upheld. In general, the surrogate is always responsible for carrying out her obligations under the contract; not so, however, if it can be shown that the surrogate is no longer able to do so. If the surrogate refuses to follow any of the demands of the intended parents, or if she deliberately does in opposition, the intended parents would be entitled to enforce specific performance of the contract.
Sometimes, however, it is impossible for the surrogate to fulfill her obligations. For example, a surrogate may have a medical issue arise which prevents her from being able to carry the baby to term. In these cases, the intended parents have the right to terminate the surrogacy contract.
And what happens if either party refuses to abide by the surrogacy agreement? Surrogacy contracts include language which will allow the intended parents to gain physical custody of the child. If there is a medical emergency while the surrogate is pregnant, the intended parents need to be able to make any decisions regarding the care of the child, not the surrogate. California courts will enforce these types of clauses.
If either party to the surrogacy agreement threatens to take steps contrary to the surrogacy agreement or to interfere with the other party’s rights under the surrogacy agreement, the judge may issue either a preliminary or permanent injunction to prevent the other party from engaging in the behavior contrary to the surrogacy agreement. This will preserve the relationships so that damage does not occur to the surrogacy arrangements that could impair the relationship. The judge can also issue an injunction preventing one party from taking steps to interfere with the surrogacy agreement.
What’s New in Surrogacy Law
Three pieces of legislation were recently passed that are sure to affect surrogacy in California: A.B. 960 addresses the issue of parentage of a child born through assisted reproduction. Generally, a person who provides egg or sperm to a physician cannot object to the use of that sperm, ovum or embryo by either the recipient or, under certain circumstances, that recipient’s co-habitating partner or spouse. However, there is a provision which allows a participant in an egg donation cycle or other assisted reproduction procedure to withdraw consent or to revoke the ability to use the donated material. Also, notably, this bill just includes language on gestational surrogacy and does not mention traditional (or genetic) surrogacy. This is likely because a traditional surrogate is genetically related to the child she bears and California law does not provide that a genetic parent should have to agree with the intended parent(s) on the relinquishment of the child . We would expect the legislature to take further action to establish that a traditional surrogate can similarly withdraw consent to donate her child (and that her spouse must agree to the relinquishment), but in a subsequent bill.
A.B. 923 creates a rebuttable presumption of parentage for a person who brought the embryo to the gestational carrier. By creating a presumption, the presumption can only be overcome by clear and convincing evidence to the contrary. So, a gestational carrier would not be able to break down the presumption that the intended parent is in fact the parent of the child based solely on her testimony.
A.B. 2581 allows the intended parents of an embryo in its embryonic form to enter into surrogacy agreements. Prior to enactment, there was no legal authority to establish parentage pre-birth of a child conceived in vitro. So, this bill provides a method by which a heterosexual or same-sex couple could formally establish the parentage of a child conceived by an embryo created using that couples’ egg or sperm (or both).
No Responses