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STATE SURROGACY LAW:

California Surrogacy Laws

Overview

California supports gestational surrogacy with a number of legal protections, making it one of the most favorable states in the United States. Specifically, gestational surrogacy is protected by California Family Code – FAM § 7960, as well as with additional long-standing supporting case law: Johnson v. Calvert (1993), and Buzzanca v. Buzzanca (1998). 

Traditional surrogacy, on the other hand, may be permitted in California, but it’s not addressed in California’s statutes or case law.

Types of Surrogacy Available in California

Can a parentage order be obtained for the following?

Compensation is legal for surrogates in California and there aren’t established limits on the amount. 

Although traditional surrogacy isn’t prohibited in California, obtaining a parentage order for this type of surrogacy may be uncertain and most attorneys and agencies strongly advise against the practice given the increased emotional and legal risks involved.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

UNCERTAIN

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Parent-Parent, or Father or Mother.

Rights of Egg or Sperm Donor(s)

According to California Family Code 7613, donors of sperm or egg for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child.

Surrogacy Steps in California

Surrogacy Process in California

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Proceedings begin after the first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

5-7 business days

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Gestational surrogacy contracts in California are recognized and enforced by the state as long as they are compliant with the statutes. Traditional surrogacy contracts, however, don’t have the same legal protections, so whether a traditional surrogacy contract would be enforceable is uncertain.

Independent Counsel

Independent counsel is required for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

California has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

NO

Bases of Venue

What are the bases of venue?

The county where the child is born; the county where the Intended Parent live; the county where the Gestational Carrier lives; the county where the surrogacy contract was executed; or the county where the medical procedures take place.

Do rulings vary by venue?

NO

Can you file a motion to waive venue?

NO

Rulings don’t vary by venue, but procedures may differ depending on the judge hearing a case.

International Issues

California, in addition to being one of the most surrogacy-friendly states in the United States, is also one of the most surrogacy-friendly places in the world. There are no specific laws in California pertaining to international Intended Parent(s). International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country must be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does California have any residency requirements for out-of-state or International Intended Parents?

NO

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they receive a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 8 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

BRIAN KLEIN
Falleta and Klein
1520 6th Avenue
San Diego, CA 92101
(619) 235-8913
brian@falletta-klein.com
www.kleinfertilitylaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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