Surrogacy in California is a great option for some people to create their family. Many reasons exist to inspire someone to choose surrogacy as a way to enjoy parenthood. Many other reasons exist to encourage someone to choose to act as a surrogate and provide others with the opportunity to build their family. Though surrogacy is meant to be a thing of joy, there are challenges and caveats to consider, especially those of a legal nature.
At Szeto-Wong Law, our surrogacy attorney in Cupertino represents the intended parents and surrogates in surrogacy matters. We also work well with surrogacy agencies to ensure our client's rights are protected and interests are upheld. Contact us today at (650) 425-6264 to schedule a consultation and learn more about how our family law attorney will make a good fit as a member of your surrogacy team.
Is Surrogacy Legal in California?
One of the first questions people often ask is this: is surrogacy legal? The answer depends on your jurisdiction and your specific circumstances. Generally speaking, most states in the United States permit surrogacy to some extent. Many states are very friendly toward surrogacy while others are less so.
Friendly states are typically but not always those that:
- Allow pre-birth orders without limits placed on the intended parents based on their marital status, sexual orientation, and/or genetic relationship to the baby
- Allow compensated and uncompensated surrogacy agreements
- Allow the names of both parents on the birth certificate
Non-friendly states are typically but not always those that:
- Do not recognize nor enforce all or many surrogacy contracts
- Do not permit compensated surrogacy
- Do not permit pre-birth orders
- Impose fines and criminal penalties for unlawful surrogacy arrangements
Most states fall somewhere in between being the most or least friendly toward surrogacy. What's more, most states do not have statutory law specifically addressing surrogacy. Instead, most state laws on the matter are derived from previous court decisions. Also, in states harboring a less favorable view of surrogacy, differences in the way the law is applied may vary from county to county or even from judge to judge.
To ensure your surrogacy is within the law and to avoid potential delays, contact a surrogacy lawyer in your state today.
Specific Surrogacy Legal Issues to Consider in California
Even where a state has a favorable stance on surrogacy, there are still points of contention that you should consider. Here are some of the most common.
- Compensation. Some states completely bar compensation for surrogates while others limit it drastically to include compensation only for pregnancy and birth-related expenses.
- Method. There are two methods of surrogacy: gestational surrogacy versus traditional surrogacy. Under traditional surrogacy, the surrogate's own egg is used in the implanted embryo. Traditional surrogacy is unlawful in many states.
- Contracts. Surrogacy contracts are legal in some states while illegal in others. Where they are legal, the legal requirements vary drastically. Where they are illegal, criminal charges vary if a contract is executed.
- Enforceability. Many states have questioned the legality of enforcing surrogacy contracts even when surrogacy contracts are legal. If a dispute arises, this can be a serious problem for the harmed party if the state is unwilling to enforce the contract.
- Parentage. Where a pre-birth order is allowed, the intended parent(s) can move for a pre-birth order to protect their parental rights before the birth. On the other hand, some states that do not allow pre-birth orders may require some type of post-birth procedure, like adoption.
- International surrogacy. International surrogacy can be cheaper but there are great risks, in part because international law is inadequate, clinical oversight is extremely limited, and the mere distance between your home in the United States and the other party in another country is vast in more ways than mere geography.
Addressing these legal matters prior to entering into a surrogacy contract or some other type of agreement is critical to the surrogacy's success.
Surrogacy Contracts in California
The surrogacy contract, where allowed, is the best protection for all parties involved. But that is true only when the contract is drafted properly and comprehensively. There are specific terms and conditions to consider and include in any smart surrogacy contract.
- Finances. If financial compensation is permitted in your jurisdiction, be clear about the amount and what it includes or excludes.
- Risks and responsibilities. Risks not only include the legal aspects of the surrogacy but things like emotional, medical, and financial risks and responsibilities.
- Social roles. To what extent do the parties want to be involved? For example, will the intended parents attend the birth of the baby? Will the surrogate have an opportunity to maintain a relationship with the family?
- Potential issues. With surrogacy, like any pregnancy, a lot can happen before, during, and after the nine months of gestation. Things like a multiple pregnancy, a miscarriage, embryo transfer failure, and other complications should be anticipated and addressed.
The contract will be fundamental to the surrogacy legal process. A surrogacy lawyer will explain if a contract is lawful, and if so, can help draft, review, negotiate, and execute the contract on your behalf.
Contact a Surrogacy Lawyer in Cupertino Today
Surrogacy in California is a high stakes process. Unfortunately, the laws governing it are confusing. Having an attorney by your side to highlight critical issues, explain complex legal matters, and overall set you at ease can do more for your surrogacy than anything else. Contact us today by filling out the online form or calling us at (650) 425-6264 to schedule a consultation.