FAQs

© January 2023 Deborah H. Wald

Q. Are surrogacy agreements enforceable 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 an intended father’s sperm, but using her own egg.  The law on traditional surrogacy in California remains 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, regardless of what is written in an agreement between the parties.

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.

California law is completely clear that gestational surrogacy agreements are enforceable as long as the rules are followed, the most important of which are detailed below.

Q. Is surrogacy legal in California for everyone, or only for heterosexual married couples?

A. In California, surrogacy is an equally viable 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 all parties are represented by skilled and experienced legal counsel, who will make sure that all i’s are dotted and t’s crossed.

Q. If I enter into a gestational surrogacy agreement by which I am designated as the Intended Parent, will I be recognized as a legal parent even if my baby is not genetically related to me?

A. Yes.  If you enter into a gestational surrogacy arrangement that complies with California law, and that designated you as the child’s intended parent, you will be the legal parent regardless of whether the child is conceived from your eggs or your sperm.  California takes the position that causing a child to be conceived through assisted reproduction is a form of procreation, and that people who cause conception with the intention of parenting should be recognized as legal parents.  So intended parents engaged in gestational surrogacy in California can use donated eggs, donated sperm, or both and still be the legal parents of their child, as long as all surrogacy laws are complied with.

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

A. An attorney has two separate roles in the surrogacy process:  (1) the attorney will draft and negotiate a written contract for you and your surrogate; and (2) the attorney will bring a court action to confirm that you are the child’s parents and that the surrogate is not a parent.  In addition, an attorney who is experienced in assisted reproduction law can help make sure that you and your surrogate are a good match, can help figure out insurance for the surrogate and the baby, and can help 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 California law, 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 for 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 and/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 about the donor is required.

(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 (carrying the child through pregnancy), 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, surrogacy agencies 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 behavioral expectations for intended parents and surrogate, generally 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.  The contract also should address any issues regarding vaccinations and adherence to public safety protocols.

(5) How many embryos will be transferred and what is the plan re: selective reduction?  The intended parents and the surrogate need to be in agreement about what to do in the event of a multiple pregnancy (twins or triplets).  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, 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 how many embryos will be transferred per cycle, as well as about a possible fetal reduction, to align expectations and avoid a mismatch of intended parents and surrogate.

(6) Under what circumstances will the surrogate terminate a pregnancy?  As with selective reduction, it is critical that the intended parents and the surrogate be on the same page about pregnancy termination.  Will the intended parents want the surrogate to abort a pregnancy if the fetus tests positive for Down Syndrome?  If so, they need to be matched with a surrogate who is comfortable with this approach to pregnancy termination.  There is a good match for every intended parent and for every surrogate, and the contract is an important way to confirm that the specific parties are well-matched.

(7) How is the surrogate’s health care being paid for?  Under a law that went into effect on January 1, 2015, for a surrogacy contract to be valid it must spell out how the surrogate’s health care is being paid for (i.e. what insurance policy will cover the pregnancy and delivery, and who is paying the premiums), as well as how the baby’s initial health care costs will be covered.

(8) What is the plan for assuring that the Intended Parents are recognized as the legal parents, and that the Surrogate is not held legally responsible for the child?  A surrogacy contract must always state clearly that the intended parents will be the legal parents and the surrogate (and her spouse, 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 early in the 2nd trimester – generally after completion of an “anatomical ultrasound” to confirm the healthy development of the fetus – and then filing for parentage as quickly as possible.  Courts can take several months to process these actions, so it is best to leave plenty of time.  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. 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.)  California courts also have jurisdiction to determine legal parentage in surrogacy cases if either the intended parents or the surrogate resides in California.  Therefore, as long as at least one of the parties lives in California, or if the embryo transfer happens in California, California will have jurisdiction.  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 The Wald Law Group, 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.