While surrogacy laws differ from state to state, California is widely considered a surrogacy-friendly state. Here’s how to become a surrogate in California.
While there are no set standard legal requirements to become a surrogate in California and requirements vary by fertility agency, there are several general requirements an intended surrogate mother can expect from a California agency, including health, psychological, and medical requirements.
To legally become a surrogate in California, the surrogate mother and the intended parent(s) will first need to draft a surrogacy contract, then establish a pre-birth order, and if needed, finalize necessary post-birth procedures.
What does it mean to become a surrogate?
There are two kinds of ways a woman can become a surrogate mother.
One way is through traditional surrogacy, in which the surrogate is artificially inseminated with the father’s sperm and carries the child to delivery for the intended parent(s).
Another way is through gestational surrogacy, in which IVF (or in vitro fertilization) is facilitated in order to fertilize the eggs of the intended mother (or egg donor) with the sperm of the father (or sperm donor) and transfer the embryo inside the uterus of the surrogate mother. Here, again, the surrogate mother carries and delivers the child for the intended parent(s).
A notable difference between a traditional surrogate and a gestational surrogate is that a gestational surrogate is considered the “birth mother” but the egg donor is considered the biological and legal mother. A traditional surrogate is considered the child’s biological mother but not the legal mother.
1. File a Surrogacy Contract
Before the embryo transfer is conducted, the surrogate and the intended parent(s) must each work with their attorney to come up with and negotiate a binding surrogacy contract.
There are 2 main legal issues addressed in surrogacy contracts:
1. Financial
2. Social
Regarding the legal financial matters of the surrogacy contract, each party’s attorneys will need to negotiate the compensation received by the surrogate. Compensation encompasses monetary base compensation, monetary compensation in the case of complicated circumstances, and payment in the form of maternity gifts such as clothing.
Regarding the legal social matter of the surrogacy contract, the contract must outline the social responsibilities of the surrogate mother including abstinence from drugs and which parties will be present during prenatal appointments and during birth.
Related: 10 Steps to the California Surrogacy Process
2. Establish a Pre-Birth Order
A pre-birth order officially acknowledges the intended parents as the child’s legal parents. This speeds up the post-birth legal process by discharging the child from the hospital to the intended parents. In order to establish a pre-birth order, the intended parents of the child will need to work with their attorney to compile the necessary documents to file the pre-birth order.
The pre-birth order is often filed around seven months into the surrogate mother’s term. Once this order is filed, the only remaining documentation needed to finalize the post-birth legal process is a signed document acknowledging that the surrogate mother is not the legal parent of the child and a signed document acknowledging that the intended parents will accept legal custody of the birthed child.
Related: How to Get a Pre-Birth Order in California
3. Conduct Post-Birth Legal Procedure if Needed
If either or both of the intended parents are not the biological parent of the child (usually but not exclusive to traditional surrogacy), then there may be additional legal procedures that must be conducted post-birth.
If either intended parent’s genetic material was combined with the corresponding genetic material of a non-parent, step-parent adoption is required. Unmarried same-sex couples in California may need to file a second-parent adoption.
If neither of the intended parents is the biological parents of the child, a full adoption is required by both parents.
Related: What Is a Post-Birth Order?
FAQs About Becoming a Surrogate in California
What are some general requirements by surrogate agencies of a surrogate mother?
Surrogate mothers are normally expected to:
- have given birth at least once with no complications,
- be drug and smoke-free for at least 1 year (including exposure to second-hand smoke),
- be a U.S. citizen or legal permanent resident, and
- undergo criminal and psychological evaluations.
What are some necessary documents to file the pre-birth order?
In order to file a pre-birth order, the intended parents must work with their attorney to obtain an affidavit from the physician certifying that the embryos were transferred to the surrogate, any documents including psychological evaluations of the intended parents and the surrogate mother, and signed documentation relinquishing child custody and legal rights to the intended parents post-birth.
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