In many states, surrogacy is not an option for parents, but California courts do honor properly drafted surrogacy agreements and arrangements. Such a legal position is of the utmost importance for couples who are facing issues with conception and/or are of the same sex and wishing to grow their families.
Is a child carried and birthed by a surrogate the legal child of the surrogate?
The answer to this question depends upon the type of surrogacy. However, it is very common for the surrogate agree (usually via contract) to deny any intention to raise the child and surrender all rights regarding child custody, child support after the birth, and parentage. The black letter law on a surrogate parent’s rights is somewhat unsettled in the California, so a well drafted contract is critical to ensuring that all of the parties’ intentions are clearly outlined before the surrogacy process progresses.
What are the different types of Surrogacy?
Surrogacy is not a decision to be taken lightly, although few decisions in parenthood are. Of the many considerations is the type of surrogacy which best conforms to your situation. There are two different forms of surrogacy: traditional and gestational.
In a traditional surrogacy, the surrogate mother’s egg is fertilized by either the intended father’s or a donor’s genetic material. In a gestational surrogacy, the genetic material of both of the intended parents is used, which means that that there is no genetic link between the child and the surrogate mother. Currently in California, a child created from a gestational surrogacy is the child of the intended parents. The intended parents are fully responsible for the child, including the rights and expenses associated with raising a child.
What information is included in a surrogacy agreement?
As suggested above, the surrogacy agreement serves as the “rules” of the surrogacy. The surrogacy agreement will state specifically the duties and responsibilities of both the intended parents and the surrogate from things like parental rights, compensation, and insurance obligations to lifestyle activities and the termination of a resulting pregnancy. It is not uncommon for a surrogacy agreement to require the parties to undergo physical examinations to ensure their medical suitability and psychological examinations to ensure their mental capacities to enter into such an agreement. Regardless of the provisions to be included in the agreement, it must be carefully drafted to address the intentions and temper the concerns of all parties to it.
Does an attorney need to draft the surrogacy agreement?
The surrogacy agreement is a binding contract which affects parental rights; it should be written by a licensed lawyer with experience in the field. While trust and communication are key in all legal matters, this is especially so when it comes to surrogacy. A thoughtful and trusted attorney can help guide you and your spouse or partner through the process of surrogacy so you may grow your family.