Surrogacy Agreements / by Cassandra Hearn

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Adding a new member to a family is an exciting and important time. With advancing medicine, there are more options available to parents than ever before when deciding what the best option is to welcome a new child. Traditional surrogacy and gestational surrogacy are two of these options. Traditional surrogacy means that the woman carrying the child is the child’s genetic mother. Once the child is born, the other intended parent will need to adopt the child, but the genetic mother will not have to take further steps to cement her relationship with the child. In contrast, gestational surrogacy is an arrangement wherein the mother carrying the child is not genetically related to the child. Typically the intended mother’s egg or that of an egg donor is fertilized using in vitro fertilization and the surrogate mother will carry the child to term. Thereafter, the intended parents will adopt the child. In California, gestational surrogacy is legal, but there are specific rules that must be followed in order to make the surrogacy agreement valid and binding.

California Family Code 7962  provides the requirements for a surrogacy agreement. Of note is that both the intended parents and the surrogate mother must each have their own, independent legal counsel. The agreement must also contain specific information, such as the names of the persons contributing the gametes, unless a donor was used, the identity of the intended parents, and how the intended parents will cover the medical expenses for the surrogate mother and the children. The law specifically states that no embryo transfer shall occur or even start injecting medication to prepare for the transfer until the surrogacy agreement has been fully executed. The intended parents may then proceed to file a petition to establish the parent-child relationship, attaching the surrogacy agreement to the petition. This action may be filed before the child is born. The judge will then sign an order that establishes the parent-child relationship between the intended parents and the child, and this order may even be signed before the child’s birth. Like other adoption records, these actions are sealed and their contents can only be revealed with the consent of a judge, and then only in exceptional circumstances.

If you are considering a surrogacy agreement, you need an experienced attorney. Contact us today for an appointment at 619-800-0384 to talk about your family and your case.