Surrogacy and Protections Under the Law

Surrogacy and Protections Under the LawSurrogacy is an assistive reproductive technology that gives couples (intended parents) who are unable to carry a child the opportunity to have one: a woman (surrogate) carries the baby for the couple. While this arrangement seems to be beneficial to all, there are complex legal issues associated with it.

To start, there are no federal surrogacy laws in the United States, so varying state laws cover the surrogacy arrangement.

California Legal Framework

In California, surrogacy is covered under their Family Code [Cal. Family Code § 7960 et. seq. (2019)], which covers the contents of a surrogacy agreement and surrogate compensation. The statute, however, only covers gestational surrogacy, which means the surrogate has no biological link to the baby. This differs from traditional surrogacy, where the surrogate’s eggs are used, making her the baby’s biological mother. No law in California covers traditional surrogacy, so that process is permitted.

As for the responsibilities of a surrogate, Californian law requires a surrogacy agreement negotiated by the legal counsels of each of the parties during drafting. The surrogacy agreement should also contain the identity of the intended parent(s), the process for any necessary pre-birth or parentage orders, the risks and responsibilities of each party, and surrogate compensation. The surrogacy agreement must be notarized or otherwise witnessed before the surrogate may take any medication in connection with the embryo transfer procedure.

“Parentage” is the word used in California law to describe a child’s legal parent. Under surrogacy law, an intended parent is defined as an individual who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction. The law allows for courts to declare the child’s legal parent before the birth of that child. Once this is declared, the intended parents are considered the child’s legal parent.

This concept was the crux of the California Supreme Court case Johnson v. Calvert [851 P. 2d 776 (1993)]; the court established that the intended parents should be recognized as the legal and natural parents once there is a valid surrogacy agreement.

What if the Surrogate Mother Wants to Keep the Baby?

One of the significant issues in surrogacy is what happens if the surrogate decides to keep the baby. This question has consistently come before Californian courts, and it turns on the surrogacy agreement. California’s law allows the intended parents to establish parentage before the child’s birth, and there is no required waiting period for the birth mother to change her mind, as is the case for adoption.

Once parentage is established, the intended parents retain all legal rights to the child. The surrogate would need to convince the intended parents to voluntarily relinquish their rights to the child if they wish to keep the child. California is considered a surrogacy-friendly state; however, all parties need to be aware of their rights and responsibilities.