Legal History

In the early nineties, when many other states were passing laws criminalizing surrogacy, California upheld surrogacy agreements and recognized the legal rights of intended parents. In the landmark cases of Johnson v. Calvert (1993) and Buzzanca v. Buzzanca (1998), California was the first state to recognize parental rights based on intent to have a child, rather than biological ties or the identity of the birth mother. In these cases, California courts considered the intended parents’ affirmative steps to undergo IVF, find a surrogate, and sign a contract as proof of their intent to be the child’s legal parents. At a time when assisted reproductive technology (ART) was not commonly used or understood, California was instrumental in demonstrating that the best way to establish a stable, healthy life for a child born via ART is to legally recognize parents, regardless of genetics.

Since then, California has passed state-wide laws legalizing surrogacy. In 2012, California passed AB 1217, which codified best practices regarding surrogacy agreements that were not previously required by law into the California Family Code. One of the first of its kind, this law served as a model for other states that passed surrogacy-friendly legislation in years to come. 

AB 1217, codified as C.A. Fam. Code § 7960 et seq., lays out specific criteria that all California surrogacy arrangements must follow, which are detailed below. See the full text of the law here.

Who can be a surrogate in California?

Women hoping to become gestational carriers in California must undergo medical and psychological screenings. Typically, fertility clinics and matching programs require a gestational carrier candidate to be between 21 and 40 or so years old and have given birth at least once before, without pregnancy or delivery complications.

Further, fertility clinics often have requirements related to BMI, citizenship or legal residency, and lifestyle (things like not smoking). It is important to note that California does not have any citizenship/residency requirements for intended parents. California is friendly towards international parents working with a local surrogate. 

A gestational carrier is matched with a family—what happens next?

Once intended parents are matched with a gestational carrier, and the gestational carrier is medically and psychological cleared to move ahead, the contract drafting phase begins. California requires intended parents and gestational carriers to be represented by their own legal counsel (that’s us!).

We will draft the surrogacy contract (called the gestational carrier agreement or “GCA”), or review on your behalf, negotiate the terms, and finalize an agreement that all parties are comfortable with. GCAs in California must be signed before a notary by all parties before the surrogate may start any medication in connection with the embryo transfer. 

What provisions does the Gestational Carrier Agreement include?

California law specifies certain provisions that the GCA must contain, including the date it was signed by all parties, the identity of all parties, and whether sperm, eggs, or embryos were donated. A GCA will also address the risks and responsibilities of each party, compensation for the surrogate, and how the parents will cover medical expenses of the surrogate and newborn (this is typically through health insurance).

It is also crucial that the GCA reflect consensus on how the parties will approach difficult situations, such as whether termination or reduction of the pregnancy would ever be appropriate (if the surrogate’s life or health was in danger, for instance). We help ensure that your GCA complies with all California requirements.

How do parents protect their legal rights in California?

The GCA will also outline the process for obtaining legal recognition of the parents of the child. In California, this is generally done through a pre-birth parentage petition, resulting in a pre-birth order (“PBO”).

A PBO is an order issued by a judge which will declare that the intended parents are the legal parents of the child from the moment of birth (and that the gestational carrier, her spouse or partner (if applicable), and any donors are not legal parents of the child). 

We will draft the petition for a PBO with the required documentation and submit it to the appropriate court, generally during the second trimester of pregnancy. California law permits the PBO petition to be filed in the county where the child is to be born, the counties where the surrogate or the intended parent(s) live, the county where the GCA was executed, or the county where medical procedures were performed.

Often, no hearing is required to obtain a California PBO, but this varies by county. PBOs are issued in California regardless of whether the intended parents are married or genetically related to the child. This is great news for LGBTQ+ parents looking to secure parental rights for children born via surrogacy in California.

Do parents need to go through an adoption process?

Intended parents working with a California gestational carrier do not need to undergo an adoption to further protect their parental rights. In most situations, a PBO is sufficient to automatically include the intended parent(s) name(s) on the child’s birth certificate.

However, if intended parents from California work with a surrogate who gives birth in a state where they cannot obtain a PBO, they can return to California to complete a second-parent adoption to establish their parental rights.

More questions?

If you have more questions about the law or surrogacy process in California, contact us. We’re here to help you along this journey.