Gestational surrogacy is legal in California and can be a great way to build a family. Here’s what you need to know about gestational surrogacy laws in California.
California Family Law Sections 7960 – 7962 outline the surrogacy laws in California. It will not be biologically related to them and the egg originates from either the intended mother or an egg donor, not the surrogate mother, therefore the baby does not share any DNA with the surrogate mother.
Types of Surrogacy in California
There are two main types of surrogacy processes: Traditional and Gestational.
Traditional Surrogacy
A traditional surrogate is the biological mother of the child who uses her own egg, which is fertilized via intrauterine insemination using sperm from either a donor or an intended father. Although not legally addressed in California traditional surrogacy is legal but is less common in contemporary times. The Intended Parent may file a parentage order before or after the birth of the child, but it is up to the discretion of the court whether or not to grant it.
Related: 10 Steps to the California Surrogacy Process
Gestational Surrogacy
Gestational carriers are not biologically related to the child. After an egg and sperm from donors, or intended parents, are used to create an embryo through in vitro fertilization, it is transferred to the gestational surrogate to carry. This process is a more common method of surrogacy and is well-regulated in California.
Determining Legal Parentage in California
Pre-birth parentage orders are permitted in California surrogacy legislation. No hearing is needed to obtain these pre-birth orders so confirming the intended parents’ legal parental rights prior to the birth of the baby is relatively easy. The exception to this would be if unmarried intended parents work with a surrogate who delivers in a state that does not allow pre-birth or parentage orders, they will usually need to complete an adoption in California after their child is born to establish their parental rights.
Pre-Birth Parentage Orders
Pre-birth order does not become effective until the moment of birth under California Family Code Section 7633.
Related: Surrogacy Laws By State
Based on a Gestational Carrier’s plan to deliver in California, if no party lives in California, a pre-birth order is possible under CA Family Code, Section 7962(e), an action may be filed in the following:
- Anticipated county of child’s birth
- County of intended parents’ residence
- County of surrogate residence
- County of assisted reproduction agreement for gestational carriers execution
- County of medical procedures according to the agreement performance
Gestational Surrogacy Costs in California
Intended parents can expect to pay anywhere from $90,000 to $130,000 for their gestational surrogacy depending on the circumstances and contracted agencies. These totals include a variety of additional factors, such as the experience of the surrogate, negotiated rates of living expenses, and monthly allowances for the surrogate, as well as an array of potential liabilities and preventive measures.
FAQs About Gestational Surrogacy Laws in California
Are Surrogacy Contracts Enforceable in California?
Surrogacy contracts completed legally according to the state statutes are enforceable in California.
Can the surrogate keep the baby?
When surrogacy is completed legally and the correct process is followed, the surrogate has no parental rights or responsibilities to the child she carries.
Is same-sex surrogacy legal in California?
Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples.
Can I use a donor egg, sperm, or embryo?
Intended parents who complete a surrogacy in California are usually able to obtain a pre-birth order regardless of whether they used a donor egg, sperm, or embryo. California laws clearly state that neither a sperm donor nor an egg donor is a parent when their gametes are used in assisted reproduction and result in a child.
Can one lawyer represent both me and my Surrogate?
The same lawyer cannot represent both the surrogate and intended parent in California. A legally binding surrogacy contract requires that the intended parents and the surrogate must each have been represented by independent legal counsel of their choosing.
Contact Us
If you or a loved one would like to learn more about Gestational Surrogacy Laws in California, get your free consultation with one of our Family Law Attorneys in California today!