Gestational Surrogacy Laws in California
State Law Overview
California Family Code Section 7962 provides a detailed statutory framework for gestational surrogacy agreements. Before the agreement is signed, the gestational carrier and intended parent or parents must each be represented by a separate independent licensed attorney of their choosing. The agreement must be fully executed before injectable medications begin in preparation for embryo transfer or before the embryo transfer takes place. California law also allows a parentage action to be filed before the child is born when the statutory requirements are satisfied. EDSI coordinates with independent reproductive attorneys but does not provide legal advice.
What Does California Law Require for Gestational Surrogacy Agreements?
California Family Code Section 7962 sets specific requirements for gestational carrier agreements. The agreement must identify the intended parent or parents, address the source of the gametes or whether donated eggs, sperm, or embryos are being used, and disclose how medical expenses for the gestational carrier and newborn will be covered. Before signing the agreement, the gestational carrier and intended parent or parents must each be represented by a separate independent licensed attorney of their choosing. The agreement must be properly executed and notarized or witnessed as required. Injectable medications in preparation for embryo transfer and the embryo transfer itself cannot begin until the agreement has been fully executed. When the statutory requirements are satisfied, the agreement is presumptively valid, and a court may issue an order establishing the intended parent or parents as the legal parent or parents.
How Are Parentage Orders Handled in California Surrogacy?
California law allows an action to establish the parent and child relationship in a gestational surrogacy arrangement to be filed before the child is born. When the requirements of California Family Code Section 7962 are satisfied, the court may issue a judgment or order establishing the intended parent or parents as the legal parent or parents and confirming that the gestational carrier and her spouse or partner are not parents of the child. The judgment may be issued before or after birth. In a properly documented case, the statute provides for the order to be issued without a further hearing or additional evidence unless the court or a party has a good faith reason to question compliance with the statutory requirements. Intended parents should work with their independent reproductive attorney regarding timing, filing requirements, birth certificate procedures, and whether any additional legal steps are appropriate for their individual circumstances.
How Are Surrogacy Funds Handled Under California Law?
California Family Code Section 7961 establishes specific requirements for client funds handled in connection with surrogacy by a nonattorney surrogacy facilitator. Client funds must be directed to either an independent bonded escrow depository maintained by a licensed, independent, bonded escrow company or a trust account maintained by an attorney. A nonattorney surrogacy facilitator may not have a financial interest in the escrow company holding client funds or act as its agent. Funds are disbursed by the attorney or escrow agent according to the assisted reproduction agreement and fund management agreement, subject to the statutory exceptions for certain direct medical and psychological payments. EDSI uses an independent third party bonded escrow provider rather than holding intended parent journey funds itself. This separation keeps agency coordination and fund management in independent roles.
Can LGBTQIA+ and International Intended Parents Pursue Surrogacy in California?
California’s gestational surrogacy framework is available to a wide range of intended parents, including married and unmarried individuals and LGBTQIA+ families. International intended parents may also pursue surrogacy in California, but establishing parentage in California is only one part of an international journey. Recognition of a California parentage order, citizenship, passports, travel documents, and requirements for returning home can vary by country and individual circumstances. EDSI coordinates with independent reproductive attorneys experienced in international surrogacy so families can obtain appropriate legal guidance in the United States and, when necessary, in their home country. EDSI does not provide legal advice.
Gestational Surrogacy Legal Considerations
Gestational Surrogacy in California
Because of its legal protections, California law fully supports intended parents who use donor eggs, sperm, or embryos. As a result, courts consistently issue pre-birth parentage orders in these cases. From the beginning, both parents appear on the child’s birth certificate. Therefore, families do not need adoption or extra legal steps after birth.
Pre-Birth Parentage Orders in California
As a result, California courts routinely grant pre-birth parentage orders, offering intended parents clear and secure legal parental rights
prior to the child’s birth. In most cases, the process is streamlined and typically does not
require a court appearance.
LGBTQ+ and International Parents in California
California is inclusive and supportive of LGBTQ+ surrogacy, single-parent surrogacy, and international surrogacy arrangements. Additionally, the state ensures equal protections and simple legal processes for diverse intended parents regardless of marital status, sexual orientation, or nationality.
California Surrogacy Agreement Enforceability
Because of clear state laws, California recognizes and enforces surrogacy contracts without issue. The state provides clear statutory guidelines ensuring all agreements are protected and binding when legal requirements are met.
Birth Certificate Process in California Surrogacy
California’s pre-birth orders allow intended parents’ names to appear directly on the child’s birth certificate at birth, eliminating the need for additional legal proceedings post-birth.
Court Hearing Requirements in California
Court hearings are typically unnecessary in California surrogacy cases. Pre-birth parentage orders are commonly granted administratively, simplifying the process for intended parents.
Parental Rights and Genetic Material Considerations
Importantly, California law clearly defines and protects the parental rights of intended parents in gestational surrogacy. These protections apply even if the intended parents are not genetically related to the child. Regardless of genetic connection, their legal status remains secure whether they use their own eggs or rely on donors.
In fact, California law states that donors do not have any parental rights. This clarity allows intended parents to move forward with peace of mind. Pre-birth parentage orders further strengthen these protections. They ensure that parental rights are fully established before the baby is born.
Both Intended Parents Contribute Genetic Material
If both intended parents contribute genetic material, the legal process is typically fast and simple. California courts routinely issue pre-birth parentage orders in these cases. These orders confirm full legal rights before the child’s birth, creating certainty and stability.
One Intended Parent Contributes Genetic Material
California supports families in all forms. Even when only one parent has a genetic link to the baby, both intended parents can be listed on the pre-birth order. This eliminates the need for post-birth adoption or extra legal steps.
Intended Parents Using Donor Genetic Material
California law fully supports intended parents who use donor eggs, sperm, or embryos. The courts regularly issue pre-birth parentage orders in these situations. Both parents are named on the child’s birth certificate from the start. No adoption or additional legal filings are needed after birth.
If you are considering using surrogacy to achieve your goals of starting a family or extending your family, we can help you get there.
Common Questions and Answers
What Requirements Must Surrogates Meet in California?
California surrogate qualifications typically include being
between 21-40 years old, having previously delivered at least one healthy
pregnancy, undergoing medical and psychological evaluations, and having a
stable living environment and financial situation.
How Long Does the Surrogacy Process Typically Take in California?
The surrogacy process in California usually takes between 14
to 18 months, from initial matching to the birth of the child. The timeline includes
surrogate matching, legal contract drafting, medical procedures, pregnancy, and
birth.
Are Traditional Surrogacy Arrangements Permitted in California?
While traditional surrogacy is not explicitly prohibited in
California, gestational surrogacy (where the surrogate has no genetic
connection) is strongly preferred due to clearer legal protections and simpler
parentage establishment.
What Expenses Are Legally Allowed in a California Surrogacy Arrangement?
California law allows surrogates to receive compensation for medical expenses, travel, lost wages, maternity clothing, and other pregnancy-related costs, in addition to base surrogate compensation agreed upon in the surrogacy contract.
Can a Surrogate Change Her Mind After Signing a Contract in California?
California provides strong legal protections, meaning once a
surrogacy contract is signed and notarized, the surrogate cannot legally change
her mind regarding parentage rights. Pre-birth parentage orders reinforce
intended parents’ legal protections.
Is Health Insurance for Surrogates Required in California?
Health insurance coverage for surrogates is strongly recommended in California and is typically required by surrogacy agencies. Intended parents often cover health insurance costs as part of the surrogacy agreement to ensure adequate coverage during pregnancy and delivery.
