LEGAL GUIDE
Written by attorney Sebastian Gibson | May 22, 2010

California Surrogacy and Fertility Law - Assisted Reproductive Births and Motherhood

While motherhood has been around since the start of mankind, the use of new reproductive technologies, surrogates and fertility drugs to assist those desirous of having a baby is still relatively new. While many states in the U.S. are still struggling to create a set of laws to govern surrogacy and reproductive technology used to assist in motherhood, California is and has been ahead of the vast majority of states in assisting individuals and couples to give birth where other states have either turned a blind eye or been unable to reach a consensus as to what their policy should be in this new area of law.

Few attorneys or lawyers on their surrogacy web sites will tell you how expensive the process is today to utilize reproductive technology, an egg donor, a surrogate and a fertility attorney to draft all of the necessary contracts (many of which must be created individually and which run between ten and twenty pages in length) and releases, the court pleadings to ensure that the birth certificate states the intended mother and father and not the name of the surrogate or the egg donor, to manage the funds and assist in obtaining the social security number and passport for the newborn baby or babies.

When one adds in the cost of the medical treatment (which most health plans don't cover), fertility insurance, and the amounts that most surrogates and egg donors demand today, the total cost can easily range from $100,000 to $200,000, though some cost less than that even today. Much depends on the quality of the doctors chosen, the experience of the lawyer and in many cases the health, intelligence, background and beauty that many couples look for in the egg or sperm donor as well as in the surrogate. Ethical issues must be faced by couples when they attempt to give birth to a child with specific characteristics.

Young women in college and models today are routinely being offered sums between $25,000 and $60,000 just to become an egg donor. Surrogates routinely charge $20,000 or more and attorney fees and costs can easily exceed $15,000.00. The cost of obtaining a parental judgment in order to require the hospital to place the name of the intended parents on the birth certificate can cost as much as $5,000.00 though it usually costs less. The agency you choose to match you with an egg donor and surrogate, if necessary will have their set fees. And everyone knows how much medical care costs today in the U.S. With such costs always on the rise, the best way to estimate those costs are to look at an arm and a leg and multiply their worth by a factor of ten.

Couples who attempt the process without an agency and a surrogacy lawyer often fail to consider a number of issues which can be destructive to what should be a wonderful time in their lives. They fail to ensure there is insurance coverage for medical consequences or illness during the infertility process and pregnancy and then forget to add the child to existing insurance coverage. They often fail to obtain special insurance coverage for the surrogate at all, much less address issues such as fetal reduction or prenatal testing, or the addition of vitamins to the surrogate's diet.

Without the assistance of a lawyer, they fail to have the intended parents, the surrogate and her spouse and the egg or sperm donor tested completely for things such as HIV. They fail to have them psychologically tested. They fail to set up a trust account with a neutral third party or provide when payments will be made and what expenses will be reimbursed. And without contracts, they fail to determine the intent of the parties, the parental rights of the parties, contact between the parties and the child, and the legal, health (including diet and abstinence of alcohol and drugs) and financial responsibilities of the parties.

A surrogacy lawyer can ensure that any parties who have donated genetic material or who have participated in the pregnancy have waived their rights in favor of the intended parents. They can resolve issues such as inheritance issues, future contact and disclosures, and payment for the pain and suffering of the egg donor. And an attorney can keep a wary eye on the lookout for conflicts of interest, misrepresentations and serve as a mediator between the party to resolve issues that naturally arise in the course of the entire process from the initial decision to have a baby until the baby has been born and the legal issues have all be resolved.

Only a handful of states in the U.S. recognize surrogacy contracts. More states in America prohibit surrogacy contracts than those who allow them. In the states that neither recognize them nor prohibit them, the law in those states is unclear due to contradictory legal opinions, confusing statutes or due to a patchwork of law in this field. In many of these other states, the legal costs are higher due to the fact that the child born to a surrogate must then be adopted by the intended parents.

Whether you're intending to use your own genetic material, donated eggs or wish to artificially inseminate a surrogate with whom you contract to carry the pregnancy to full term so you can enjoy being the parents of a child that is part yours or whose embryo came from genetic material from others, California courts will recognize the intentions of all the parties involved.

But those intentions must be set forth in contracts that provide for a great many contingencies and a court hearing is required for which an attorney is essential. While it may be possible for you to find your own surrogate, and possibly even your own egg donor, the legal aspects of motherhood law are daunting for even a family lawyer with no experience in this new area of law.

In addition, state agencies in many states and even federal agencies will throw up road blocks that, without an attorney, can seem impossible to get around in the time allowed. In California, for instance, the California Office of Vital Records will allow the intended parents to have their names placed on the birth certificate only if a Superior Court judgment has been obtained which names the intended parents as the legal parents of the child or children born in this manner.

To complicate matters, birth certificates must be registered with the office of Vital Records within ten days of the child's birth. If a judgment is not presented to the birth records department of the hospital at the time of birth, the birth certificate will not be filled out in accordance with the wishes of the intended parents. There are a great number of other circumstances which further complicate this process, especially where two members of the same sex are the intended parents and for that reason, only an experienced attorney in this area should be retained by the intended parents.

With the courts in California being favorable to same sex couples and births be surrogacy and egg donation, couples from around the world and other restrictive states in the U.S. often choose California for their surrogate and egg donation births. Surrogacy is still not legal in many foreign countries, even in Europe, and as a result may intended parents from foreign countries enter into surrogacy agreements with surrogates in California.

As with anything, there have been occasions where assisted reproductive technology agencies have been negligent and surrogates and egg donors have breached their contracts. If you've had a problem with your agency, donor or surrogate and you need legal assistance, the law firm of surrogate attorney, Sebastian Gibson can help to resolve your dispute, and if it cannot be mediated, to litigate it in a California or Federal court.

Surrogacy contracts that are well-drafted address the intentions of all the parties as well as who will pay for the health insurance and bills of the surrogate, and the surrender of the newborn child to the intended parents. They also cover issues including childcare costs, costs of maternity clothes and other issues, such as confidentiality, the disposition of additional embryos, control over medical decisions during the pregnancy, location of where the delivery of the baby will take place, presence of the intended parents during doctor visits and at the delivery of the baby, and liability for breaches or injuries, which if not addressed can cause a dispute between the parties.

A surrogacy contract, or as some would call it, a gestational carrier contract, is usually drafted and negotiated only once the surrogate and the intended parents have undergone medical testing and have been screened by an agency. If there is one key issue that must be addressed clearly in these contracts, it's the intent of all the parties as to who will be the intended parents of the child since California courts have held that in disputes, it's the intent that controls the rights of the parties.

A donor contract is designed to cover the legal issues in connection with an ovum, sperm or embryo donation to the birth for the intended parents. The contract addresses legal issues such as confidentiality, the intent of the parties, parental rights, future obligations and waivers of rights, medical expenses, responsibility for payment of expenses resulting from medical complications, and the mechanism for the payment of expenses or fees.

While other courts require the intended parents to adopt a child before a surrogate's rights have been terminated, this is not the case in California where the courts recognize the rights of the intended parents as set forth in the contracts between a surrogate or egg donor and the parties intending to become the parents of the child.

Additional resources provided by the author

Rate this guide


Can’t find what you’re looking for?


Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer