Surrogacy Laws in California: Is Gestational Surrogacy Legal in CA?
The answer is a big YES! Gestational surrogacy is legal in California and CA is one of the best states for surrogates and intended parents alike. Thousands of couples have chosen California to complete their families through surrogacy because of the simple and friendly surrogacy laws.
Surrogacy was made legal in California in 2013 and the laws are outlined under the California Family Code § 7960. It is also supported by case laws: Johnson v. Calvert (1993) and Buzzanca v. Buzzanca
Gestational surrogacy is well regulated in California and it is very easy for surrogates and the intended parents to come to an agreement and protect their rights as a surrogate as well as the intended parents.
The Uniform Parentage Act allows the intended parents to easily establish parentage prior to the birth of the child.
Navigating the surrogacy laws in California
Although California has straightforward laws on gestational surrogacy, it is advisable that each party is represented by an attorney so that nothing falls through the cracks.
This is where surrogacy agencies can help because they facilitate and communicate with attorneys so that both parties are taken cared of legally and everybody is aware of their roles.
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What is included in a surrogacy agreement in California
A contract or surrogacy agreement needs to be established and signed before starting any medical procedure and it should include surrogacy compensation, responsibilities, and every action to possible scenarios that may arise.
A surrogacy agreement includes but not limited to;
Source: https://www.findlaw.com/family/surrogacy-artificial-conception/checklist-surrogacy-contract.html
____ Date of the agreement
____ Names of the parties, including both prospective parents (hereinafter called father and mother) and the surrogate
____ Statement that all parties are over the age of eighteen
____ Statement that the mother is unable to sustain a pregnancy
____ Agreement by the surrogate to submit to requested physical and psychological exams
____ Details of the surrogate’s health insurance coverage, and her agreement to keep existing coverage in full force and effect
____ Agreement of the father, mother, and surrogate to the assisted reproductive technology procedures involved and placement of fertilized embryo(s) in the uterus of the surrogate
____ Agreement as to the maximum number of attempts to achieve a pregnancy
____ Agreement that the surrogate will not engage in intercourse during the attempts to achieve a pregnancy
____ Agreement that the surrogate will not terminate the pregnancy unless her own life is at risk
____ Agreement by the surrogate to refrain from smoking, drinking, and using illicit drugs during the pregnancy
____ Agreement that the surrogate will obtain regular prenatal medical care, with/without the father/mother in attendance
____ Agreement that surrogate will submit to any medical testing requested by the father and mother
____ Agreement regarding the diet of the surrogate during the pregnancy
____ Agreement regarding any restrictions on activities of the surrogate during the pregnancy
____ Agreement that the father and mother will/will not be present for the birth of the child
____ Agreement that the surrogate and her husband, if any, will have no claim to physical or legal custody of the child born as a result of the surrogacy
____ Agreement by the surrogate to the termination of her parental rights upon the birth of the child
____ Agreement that it is in the child’s best interests that s/he be raised by the father and mother
____ Agreement that custody of the child will be relinquished to the father and mother as soon as possible after birth
____ Agreement regarding the financial terms of the arrangement (including reimbursement or payment for uninsured pregnancy-related medical expenses, payment for psychological counseling, payment for maternity wear, payment for lodging and other living expenses if the surrogate relocates to be near the mother and father, payment of travel expenses, etc.)
____ Agreement as to compensation should the pregnancy not proceed to term
____ Confidentiality agreement
____ Governing law
____ Statement that the contract constitutes entire agreement
____ Severability clause
____ Signatures
Surrogacy agreements in California are very detailed and rightfully so because it involves the life of the surrogate, the life of the baby, and the lives of the intended parents. It is advisable to ask questions and clarify everything so the parties are aware of their responsibilities and are aware of what will happen should unexpected things arise.
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