Parents using a surrogate to carry their child are recognized as the legal parents of the child in many states, including California. California has both judge made and statutory law recognizing surrogacy. California was the first state to look at the intention of the parties, rather than focusing on biology or gestation alone.
California Family Code Section 7960 – 7962 requires the parties to enter into a written agreement where all parties are represented by their own attorney and also requires that the agreement be notarized. There are several requirements in the statute regarding what has to be included in the surrogacy agreement so it is important that prior to the transfer of embryos to the surrogate’s uterus, that the parties have consulted an attorney and had the attorney draft and review the agreement. The court will then issue the Judgment pursuant to the statute if all requirements are met.
Once the Gestational Carrier is determined to be pregnant after a blood test and ultra sound, the parents should contact me so I can begin drafting the pleadings to file with the court in order to obtain a pre-birth judgment that declares the Intended Parents the legal parents of the child and orders the hospital to put the Intended Parents’ names directly on the birth certificate. Once I receive a certified court order from the court I will provide it to the hospital where the surrogate is going to give birth. The hospital will then allow the parents to wear the infant identification bracelets, make decisions regarding the newborn child(ren) and put their names and their chosen name for the child(ren) directly on the birth certificate(s).
California courts recognize the Intended Parents legal rights over that of the Gestational Carrier when there is a legal agreement clearly stating the intent of the parties.
In Johnson v. Calvert the California Supreme Court ruled that the Intended Parents (who were also the biological parents) were the legal parents of a child resulting from a gestational carrier arrangement, despite opposition from the gestational surrogate. The court stated that both genetics and gestation were a sufficient basis for parenthood under the Uniform Parentage Act, but that a child could have only one mother. In this case, the court looked at the intent of the parties to decide who that mother was, and decided that if the genetic mother and the birth mother are different people, then “she who intended to bring about the birth of a child that she intended to raise as her own is the natural mother.”
When a Gestational Carrier carries an embryo that is not genetically related to the parents, but is created from donated sperm/and or ova, the courts still recognize the rights of the Intended Parents over the Gestational Carrier so long as there is a written agreement clearly stating the intent of the parties involved.
In Buzzanca v. Buzzanca, a California appellate court ruled that when a surrogate gestates an embryo created from donor egg and donor sperm, the intended parents are the legal parents of the child, even if they have no genetic or adoptive connection to the child.
As a result of the Buzzanca ruling, egg donors do not have to worry that their donation will result in parental responsibilities and recipients do not have to worry about their legal parentage of any child born as a result of the egg donation.
If a single man or woman is the Intended Parent of the child born through a surrogacy, they can still have a court order stating that they are the legal parent. The name of only one parent will be put on the birth certificate pursuant to the court order.
SAME SEX COUPLES
If two men or two women are the parents of the child through a surrogacy the court order will put both parents’ names on the birth certificate as “parent” pursuant to the court order. If the couple are registered domestic partners they will further ensure their legal right to parentage and the hospitals are required to put both names on the birth certificate(s). A further step that women couples can take when one partner is carrying the embryo is to do a step-parent adoption after the child(ren) is born.
The pre-birth judgment can be obtained without a hearing and without an appearance by the parties. Along with attorney fees there are filing fees that the Intended Parents pay for the Petition and the Response and the certified copies of the court order.