California Surrogacy Law
California is accepting of surrogacy agreements and upholds agreements that include Lesbian, Gay, Bisexual and Transgender (LGBT) individuals. While the State has no Statute directly addressing surrogacy, California’s courts have used the State’s Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases in the country regarding surrogacy rights (Johnson v. Calvert) was decided in California.
In 1993, the California Supreme Court decided Johnson v. Calvert, in which they held that the Intended Parents in a Gestational Surrogacy agreement (where the surrogate is not the biological contributor of the egg) should be recognized as the natural and legal parents. The Court decided that the person who intended to procreate — in this case, the mother who provided her egg to the surrogate — should be considered the natural mother. This also follows through to a couple who uses the services of an Egg Donor.
In the 1994 case of the marriage of Moschetta, a California Court of Appeals addressed the question of how to determine parentage when a child is conceived via Traditional Surrogacy (in which the Surrogate Mother is the biological contributor of the egg) and is born after the Intended Parents had separated. The Court held that the Intended Father and the Surrogate Mother were the legal parents of the child, leaving the Intended Mother without parental rights.
The 1998 case of the marriage of Buzzanca, is an example of how complex the facts in surrogacy cases can get. In Buzzanca, a Gestational Surrogate was impregnated using an anonymous egg and anonymous sperm. In other words, one could identify six individuals as having the potential to be a legal parent of the child: the Egg Donor, the sperm donor, the Intended Mother, the Intended Father, the gestational mother or the husband of the gestational mother. Ultimately, the Court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the Intended Parents are the lawful parents of the child.
In 1999, in the case of Drewitt-Barlow v Bellamy, the same-sex couple from Essex UK who petitioned the Supreme Court of California for both their names to be assigned to their unborn twin babies’ birth certificates when they were born as Parent 1 and Parent 2, was won. This was a landmark case that paved the way for same-sex couples around the world to be named on their babies’ birth certificates.
Finally, in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G. The Court held that, under the Uniform Parentage Act, two women can be the legal parents of a child produced through surrogacy. This ruling presumably applies to all members of the LGBT community.
One of the most important advantages of performing surrogacy in California, is that it is possible to get a Pre-Birth Order which will establish you as the legal parents of any children born to your surrogate within a specified time period. The timeframe to obtain a judgment can take several months, mostly due to the court’s availability to review the documents and/or set the matter for hearing. To obtain the Pre-Birth Order, the paperwork would usually be filed with the court between the fourth and seventh month of your surrogate’s pregnancy. This is now seen as a very standard application and certainly not a hearing that you have to attend in person.
However, if your surrogate becomes high risk for early delivery at any point of the pregnancy, for example if your surrogate is pregnant with multiples, you may choose to file earlier. This is in order to ensure the judgment is in place prior to the birth of your child(ren) to prevent the Surrogate’s name from being listed on your child’s birth certificate.
Once the Order is obtained, the hospital where your surrogate will be delivering at should be forwarded a copy. Normally this will go to the social work department. This will highlight to the hospital team that this is a surrogacy arrangement, and that specialised handling should be put in place to accommodate the needs of the Intended Parents and the surrogate and her family. Most hospitals are now very familiar with these arrangements and have a specific protocol in place to ensure the transition goes smoothly for everyone. Please make sure you have a copy of the judgement with you at all times, as this will help speed things along if the hospital has mislaid or lost the original one they had.
In the US, it is the hospital’s duty to register the birth of any children born at that hospital. This means that a full-time registrar will be at the hospital that will come along to your private room within 24 hours of the birth of your babies and fill out the birth registration forms. This form will be signed by you both, and by the delivering doctor. Once this has been done, the registrar will forward the paperwork to the California State Department of Vital records, where the birth certificate will be produced. This will then be ready for collection within the next two weeks.
Birth Certificates in the US — a view from Thomas M. Pinkerton
Thomas M. Pinkerton is recognised as one of the leading and most influential lawyers on the subject of surrogacy anywhere in the US. He has successfully gained Pre-Birth Orders for many couples dating back to the late 1990s, when they were first introduced. In a recent article addressing the issues surrounding birth certificates he said:
“In all cases where a surrogate gives birth to a child for another couple or person, the California Office of Vital Records will only allow the Intended Parents’ name(s) to go on the birth certificate if the certificate is accompanied by a Superior Court judgment naming the Intended Parent(s) as the legal parent(s) of the child. Without such a judgment, the surrogate’s name (and if she is married, her husband’s name) must go on the birth certificate. Because the birth certificate must be registered with the Office of Vital Records within ten days of the birth, the judgment should be presented to the birth records department of the hospital at the time of birth. As a practical matter, the judgment should be obtained no later than twenty weeks into the pregnancy. The practical reason for this advice is that after twenty weeks Vital Records will require either a certificate of birth or foetal death, both of which require the parent’s name(s).
“Where there is both an Intended Mother and an Intended Father, filling out the birth certificate is straightforward. The hospital where the child is born simply follows the court judgment and fills out the birth certificate with the Intended Mother and Intended Father’s names in the appropriate boxes. If a single man is the sole parent, however, the box designated, “Mother”, cannot be left blank. This means that the single male parent has two choices. He can opt to have the surrogate’s name go in the box for, “Mother”, and his name in the box for, “Father”, or he can elect to have his name go in the box for, “Mother”, and leave the box for, “Father”, left blank. In both cases, the judgment calls for the birth certificate to be reissued with the single man’s name in the box for, “Father”, and the box for, “Mother”, left with a dash (-). The best choice is to have his name go in the box for, “Mother”, so that the birth certificate is as accurate as possible from the time of birth.
“For the gay or lesbian couple, the best course of action is to have the court issue its judgment requiring that both Intended Parents’ names go on the birth certificate, one in the box for, “Father”, and one in the box for, “Mother”.