Written by attorney Edwin J Castellanos

The Modern Family in California

New Surrogacy Law Aimed at Protecting Families Involved in Surrogacy Arrangements.

Some of the important guidelines required by this legislation:

California Family Code Section 7962 specifically requires that a surrogate and the intended parent or intended parents are to be represented by separate independent counsel of their own choosing before executing a gestational surrogacy contract;

A gestational surrogacy agreement must be executed by all of the parties and notarized or otherwise witnessed by an equivalent method of affirmation in the location where the gestational surrogacy contract will be signed; and,

A key consideration set forth in CaliforniaFamily Code Section 7962, is that even before the parties begin any injectable medication in preparation for an embryo transfer for assisted reproduction, or in advance of an embryo transfer procedure for assisted reproduction, a gestational surrogacy agreement must be fully executed.

In addition, CaliforniaFamily Code Section 7962, also addresses the process of obtaining a pre-birth order of parentage as follows:

While much of this legislation codifies into law industry best practices, there is the hope this legislation will provide some minimal protections for all of those involved with gestational surrogacy agreements. Establishing guidelines for all to follow removes some ambiguity and uncertainty from the process of establishing the parental rights of all of the parties involved in gestational surrogacy agreements in California. Section 7962 permits a request for a pre-birth order for parentage before the birth of a child, and the request for a pre-birth order of parentage may be filed in the county where the child is anticipated to be born, the county where the intended parent or parents reside, the county where the surrogate resides, the county where the assisted reproduction agreement for gestational carriers is executed, or the county where medical procedures pursuant to the agreement are to be performed.

You are now also required under the statute to file a copy of the assisted reproduction agreement for gestational carriers with the court.

This is especially true in light of past abuses at the hands of professionals and other individuals that have taken advantage of intended parents and surrogates when they are at their most vulnerable. This legislation, arguably, is long overdue and will provide guidance to California’s judiciary, family law attorneys, facilitators, fertility clinics and others attempting to help others build families through the use of assisted reproductive technology.

If you are contemplating entering into a surrogacy arrangement in California, you should know about the above-referenced requirements and read CaliforniaFamily Code Section(s) 7960, 7961 and 7962.

We look forward to receiving any comments you may have on the new legislation, and if you continue to have any questions, please call one of our family law attorneys and schedule a free consultation at 323-655-2105.

Additional resources provided by the author

New surrogacy legislation, California Assembly Bill 1217, can now be found at California Family Code Section(s) 7960, 7961 and 7962. AB 1217 became effective January 1, 2013.

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