Written by Guest Expert: California surrogacy attorney, Brian Klein
*This is NOT legal advice. This is intended for educational purposes only. This does not create an attorney-client relationship.*
A state that needs no introduction, California is one of the most populous states in the U.S., spanning nearly 900 miles of Pacific coast and boasting a range of climates and natural wonders, from the southern California surf to the glamour of Hollywood to the northern California mountains, national parks, and ski resorts – California has something to offer everyone! California is also one of the most fertile places in the world, producing over 80% of the world’s almonds and over 25% of the U.S. supply of strawberries. The soil in the Golden State is not the only fertile feature of California: California’s laws are protective of individual reproductive rights and provide for a legally safe, reliable path toward parentage using a gestational carrier!
Regardless of whether you are single, married, same-sex, or whether you intend to use your genetics or the genetics of a donor to start or grow your family, California law will accommodate your desire to have a child through assisted reproduction and surrogacy.
California gestational surrogacy matters involve a two-step legal process:
- The Contract Phase; and
- The Judgment Phase (only required if your surrogate becomes pregnant).
The contract phase
Upon your prospective gestational carrier receiving medical and psychological approval to act as a gestational carrier (which is not legally required, but recommended), you will then meet with your attorney to have your Gestational Carrier Agreement (sometimes called a Gestational Surrogacy Contract or simply, surrogacy contract) prepared. California law permits gestational carriers to be compensated for their pain and inconvenience, and to be reimbursed for any living, medical, legal, or other relevant expenses involved in the surrogacy process. California law requires both parties, the intended parent(s) and the gestational carrier, to be represented by independent attorneys throughout the surrogacy journey.
Important Contract Timing Consideration: California law requires the parties to sign and notarize their Gestational Carrier Agreement BEFORE the gestational carrier begins injectable cycle medications in advance of the embryo transfer procedure.
A well written gestational carrier agreement should include, but not be limited to:
- Identification of both parties and their respective roles – intended parents and gestational carrier;
- That any child resulting from the embryo transfer procedure is the child of the intended parent(s), and that the gestational carrier, and any spouse or partner, is not a parent and will not seek to become a parent of the child;
- How the embryo(s) that will be transferred to the gestational carrier will be created (the source of genetic material);
- How the gestational carrier’s insurance premiums, medical expenses, uncovered medical expenses and other relevant expenses will be paid, who is obligated to pay them, and for how long (you may have guessed it: it is the intended parent’s obligation!);
- How the compensation for your gestational carrier will be paid and when;
- Privacy and confidentiality concerns of the parties, as well as addressing future contact between the parties and any child delivered by the gestational carrier;
- If you are not a S. citizen, aspects of the law in your home country to facilitate a smooth legal process upon your return home with your child;
- What will happen in the event unexpected genetic defects or abnormalities are detected in the fetus, and each party’s respective right to terminate or selectively reduce a pregnancy;
- The number of embryo transfer procedures that the gestational carrier is agreeing to and the number of embryos to be transferred in each procedure;
- Explanations of risks to each party, conduct expectations of each party, and restrictions on the gestational carrier, such as prohibitions on what she may consume, restrictions from dangerous activities at certain times during any pregnancy, restrictions on her ability to travel, and many other provisions to address the risks inherent in any
So, you have signed your surrogacy contract. What now? The exciting part! Your IVF clinic will be informed by each party’s attorney that the gestational carrier is free to proceed with medications and the embryo transfer procedure. Assuming your gestational carrier becomes pregnant from the wonderful work of your IVF physician, you will then move on to the second legal step, the Judgment Phase, or more formally called the parental establishment court proceedings.
The judgment phase
Only required if your gestational carrier becomes pregnant, the parties must submit certain court documents and explanations to a California court. Those documents, along with copies of your Gestational Carrier Agreement, inform the court that the child carried by your gestational carrier is the child of the intended parent(s) and asks the court to declare the intended parent(s) to be the legal parent(s) of the child, and to terminate all parental rights of the gestational carrier and her spouse or partner, if applicable. Assuming the parties have fully complied with the California legal requirements, the court will enter your Judgment Establishing Parent-Child Relationship (often referred by other terms such as the Pre-Birth Order, PBO, or Order Regarding Parentage) without the need for a court hearing or court testimony. In other words, it is all done by paperwork that is submitted to the court!
Pre-Birth Judgment: California law permits the Judgment Establishing Parent-Child Relationship to be entered before or after birth. For a litany of reasons, it is easier for all parties if the Judgment is entered before the birth of the child. However, pregnancy is unpredictable, so obtaining your Judgment before your child is born is not always possible. If your child is born before your Judgment is entered, California law provides that if the parties’ Gestational Carrier Agreement was prepared properly under California law, the intended parents are the presumptive legal parents and that presumption cannot be rebutted without a court order invalidating the surrogacy agreement. Thus, even if your child is born before the Judgment is issued by the court, the intended parent(s) has parental rights to their child in California. The Judgment will still be required, but at no time should your gestational carrier be treated as a parent.
Duration of the Judgment Phase: A conservative estimate for the duration of the entire Judgment Phase is about 2-4 months. Courts usually take approximately 4-8 weeks to process surrogacy cases once the case has been filed. As you may have gathered, it is important to begin the Judgment Phase process and court document preparation as soon as possible after confirmation of a pregnancy so that you have the best chance to obtain your Judgment before your bundle of joy arrives.
The arrival of your child – post-birth considerations
Your Judgment will direct the preparation of your child’s birth certificate. Under California law, only the intended parent(s) is/are identified as parent(s) on the birth certificate. The gestational carrier is NOT included on the birth certificate as a parent. However, California also has wide latitude with how birth certificates can be prepared. In short, so long as the court orders the preparation of the birth certificate a certain way, the California Department of Public Health – the state agency tasked with registration of births and issuance of birth certificates – will follow the orders of the California court set forth in your Judgment.
As a result, if an intended parent is from a country that requires a birth certificate to include the gestational carrier, then that can be done with the consent of the gestational carrier and by order of the court. If there are two intended parents, but for whatever reason only one of the intended parents can be identified on the birth certificate as a parent, that can be achieved in California. Birth certificates can also be amended later to remove a party or parent or to add a parent. Careful planning must be done to ensure your Judgment affords you this authority, but California law is very flexible in this regard. Under California law, birth certificates are merely for identification. The birth certificate does not grant parental rights; your Judgment declares who is a parent and who is not. Consequently, California is an attractive state for international intended parents who may need to have a unique birth certificate issued or amended to comply with the laws of their home country.
Lastly, California law provides for a 21-calendar day period for the registration of a live birth. Despite this, birth certificates are usually ready within 5-15 business days after birth, depending on the county in which the child is born.
California is known as the “Golden State” because of the rivers of gold found here over a century and a half ago. Today, California carries that name forward because the state provides a golden opportunity to build your family through assisted reproduction and surrogacy. With a large population of potential surrogates here, maybe you too, will grow your own little strawberry in the most fertile land on the west coast!
About Brian Klein
Brian Klein, the owner and managing attorney of Klein Fertility Law, has dedicated his career to the specialized field of fertility law since joining the firm in 2011. With a focus on helping families navigate the complexities of surrogacy and egg donation, Brian plays a pivotal role in transforming the dreams of hundreds of families into reality each year. Brian also leads the firm’s international relations team, offering invaluable guidance on cross-border surrogacy and egg donation challenges. His insights into California’s legal landscape are sought after worldwide, making him a respected guest speaker at international surrogacy seminars. Brian’s commitment to ethical practices in fertility law is further evidenced by his active participation in the Society for Ethics in Egg Donation and Surrogacy (SEEDS) legal committee.
Klein Fertility Law is licensed to serve clients in California, Texas, and Colorado, in navigating the legal intricacies of fertility law with compassion and expertise.
