What You Need to Know About Surrogacy in California

What You Need to Know About Surrogacy in California

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California Surrogacy Laws and Information

Surrogacy in California is one of the safest family-building processes available across the United States. California is an extremely surrogacy-friendly state that makes it easy for intended parents and surrogates to have their rights and interests protected throughout this journey, and many have worked in this state to make their surrogacy dreams come true.

Whether you live in California or are considering matching with a surrogacy partner in this state, know that surrogacy in California is a possibility for you. However, you may still have particular questions about the surrogacy laws in California and how they will affect your personal surrogacy journey. Below, find the answers to some of the most commonly asked questions about surrogacy in California.

Whenever you are ready to start your surrogacy journey, you can also contact the specialists at American Surrogacy at 1-800-875-2229(BABY).

Q: Is surrogacy legal in California?

A: California surrogacy law, as established in rulings of the California Supreme Court, is very favorable to surrogacy. In the notable cases of Calvert v. Johnson (1993) and Buzzanca v. Buzzanca (1998), California first established and then reinforced its position that intent governs in the determination of parentage in gestational surrogacy situations. Beginning on Jan. 1, 2013, a gestational surrogacy statute took effect, permitting and legalizing surrogacy in California. Today, many intended parents and surrogates complete their surrogacy journey in this safe legal environment.

Q: Is compensated surrogacy legal in California?

A: Yes. There is no restriction on how much a surrogate can be paid in California. In fact, California is one of the states whose agencies commonly offer the highest surrogate compensation to women in these roles.

Q: Is traditional surrogacy legal in California?

A: Yes. Because there are no traditional surrogacy laws in California outlawing the practice, the process is permitted. However, remember that traditional surrogacy comes with more legal and emotional risks  than gestational surrogacy, so anyone considering this surrogacy path should do extensive research before deciding it is right for them.

Q: What does a surrogacy agreement in California cover, and how does the legal process work?

A: California surrogacy laws require that both parties in a surrogacy agreement be represented by legal counsel when drafting a surrogacy agreement or contract. Any surrogacy contracts must be notarized or otherwise witnessed before the surrogate may take any medication in connection with the embryo transfer procedure.

By law, a surrogacy contract in California must contain:

  • The date it was executed
  • The persons from which the gametes originated
  • The identity of the intended parent(s)
  • The process for any necessary pre-birth or parentage orders

In addition, like a surrogacy contract in any other state, a contract in California should also address:

  • Risks and responsibilities of each party
  • Surrogate compensation
  • Agreement on sensitive issues like selective reduction and termination
  • Expectations on contact and who will be present at important appointments and during birth

Only after a surrogacy contract is complete can you begin the medical process of surrogacy in California.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in California?

A: In California, any surrogacy contracts completed legally according to the state statutes are enforceable.

Q: What are the surrogacy laws in California on parentage orders?

A: California surrogacy laws allow for courts to declare a child’s parentage prior to the birth of that child. Unless certain exceptions are made, the record must be sealed in regards to this child’s birth.

In most cases, whether or not intended parents are married or genetically related to the child being born via surrogacy, California courts will allow pre-birth orders to be issued. Typically, no hearing is required to obtain a pre-birth order and it is a fairly straightforward process.

For more information on how you will establish parentage in your situation, please contact a local California surrogacy attorney.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in California?

A: No. All laws regarding gestational surrogacy with domestic intended parents apply to international intended parents. A local attorney can help intended parents procure any immigration and travel documents they need for their child born in the U.S.

Q: When do intended parents need to complete an adoption after birth? 

A: Because intended parents can usually obtain a pre-birth parentage order in California, any necessary adoptions after birth are few and far between. However, if unmarried intended parents from California work with a surrogate who gives birth in a state where they cannot obtain a pre-birth or parentage order, they can return to California to complete an adoption and establish their parental rights.

Q: Does California allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?

A: A second-parent adoption may or may not be legal for you, depending on your situation. Typically, intended parents who are married can complete a stepparent adoption after birth, while those who are registered as unmarried domestic partners can complete a second-parent adoption. However, to learn more about this kind of adoption process, we encourage you to speak with a local California surrogacy attorney.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: California laws clearly state the rights and responsibilities of any gamete donors — that is, the fact that donors do not have any.  In California, neither a sperm donor nor an egg donor is a parent when their gametes are used in assisted reproduction and result in a child.

If donor gametes are used to create an embryo for surrogacy, this process must be detailed in the surrogacy contract and your attorney will likely need to gather certain affidavits for establishing parental rights. Again, your lawyer can best explain whether additional legal steps are needed in your surrogacy due to the use of a donor gamete.

 Q: Are there any additional laws impacting same-sex surrogacy in California?

A: No. California is one of the most surrogacy-friendly states for all intended parents, regardless of sexual orientation or marital status.

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Clearly, if you’re considering becoming a surrogate or having a child via surrogacy, California is one of the safest locations in the U.S. where you can pursue this process. Here, you will know that your rights and interests will be protected through every step of this complicated family-building process — and that you will have a positive experience reaching your surrogacy dreams.

At American Surrogacy, we are happy to work with intended parents and surrogates from California. Our surrogacy specialists will guide you through your surrogacy process and provide the support and case management services you need to have as stress-free a surrogacy journey as possible.

To learn more about our surrogacy agency and how we can help you, please call our specialists at 1-800-875-2229(BABY) or contact us online today.

While American Surrogacy has made every effort to ensure this information is accurate and updated, California surrogacy laws are always subject to change. This article should not be taken as legal advice. Instead, we encourage you to contact a surrogacy lawyer in California to learn more about the current state of this family-building process.