The Initial Steps of Surrogacy in California
Surrogacy has become increasingly popular across the United States, and California is no exception to the trend. The state’s favorable surrogacy laws are a strong draw for surrogates and intended parents alike. From protecting the rights of all parties to offering reduced levels of complexity, these laws can make or break a surrogacy arrangement.
Before moving forward with any surrogacy arrangement, whether as a surrogate or an intended parent, you must first understand California surrogacy requirements . These laws govern the validity and enforceability of surrogacy agreements. Without a thorough understanding of these legal requirements, you may face complications in achieving your desired outcome from a surrogacy arrangement.
California surrogacy laws provide a clear picture of what’s expected from both parties and what protections exist. In this post, we’ll explore the general overview of surrogacy in California, the types of surrogacy agreements, the surrogacy law requirements, and how to navigate the surrogacy process.
Let’s get started.
California Surrogacy Laws
California is often perceived as the most forward-thinking state in the nation, allowing the most freedom to gestational carriers to choose for themselves with each other with the Intended Parents as to replacement components. In fact, the reality is that California does not allow any variation from its statutory surrogacy requirements, other than through judicial means. The rights of the Intended Parents and the rights of the gestational carrier are well defined and codified.
Although California law does not define the term "surrogate," the California Family Code section 7962 defines a "gestational carrier" as "a woman who gives birth to a child under a surrogacy agreement." A "surrogacy agreement" is defined in Family Code section 7962:
A contract between a woman who intends to be the gestational carrier of a child conceived through assisted reproduction and the intended parents of the child to be born to the gestational carrier pursuant to the contract, that meets the requirements of this part.
California Family Code section 7962 (b) requires that surrogacy agreements be in writing to be valid, enforceable, and "shall not provide that the gestational carrier consents in advance to the transfer of her parental rights upon the making of an agreement. Instead, the consent of the gestational carrier shall be given, in a record, by the gestational carrier after the child is born . . .."
California Family Code section 7962 (c) requires that the gestational carrier is at least 21 years old before the child is conceived "through assisted reproduction."
California Family Code section 7962 (d) requires that at least one of the intended parents be a genetic parent of the child.
California Family Code section 7962.5 prohibits surrogate mothers from receiving more than $10,000 compensation for their services in addition to medical and related expenses they incur as a result of their pregnancy.
California Family Code section 7961 requires the intended parents to be parties to the surrogacy contract and provides that only a licensed physician and surgeon may participate in the artificial insemination or implantation of an embryo into the gestational carrier.
California Family Code section 7962.5 is the surrogacy law that mandates compensation of the surrogate by the intended parents. It reads, "the surrogate may receive no more than ten thousand dollars ($10,000) in compensation for her services, not including expenses arising from the surrogate’s medical care or other expenses she may incur as a result of her pregnancy."
Surrogacy contracts in California are enforceable against both the Intended Parents and the gestational carriers on surrogacy contracts negotiated and signed by all involved the surrogacy procedure.
Who Can Be a Surrogate
Turning the desire to grow a family into reality, California surrogacy law sets strict eligibility requirements to ensure that a potential surrogate is both physically and emotionally ready to enter into an surrogacy agreement.
Age. The first criterion for qualification is the age of the woman. She must be at least 21 years old and no more than 42 years old, in good health. Each surrogate’s medical background is examined carefully. Health conditions that would prevent participation include high blood pressure, cardiovascular disease, diabetes, and sexually transmitted diseases.
Medical history. Potential surrogates with prior pregnancies may not have experienced complications such as:
Multiple gestation
Gestational diabetes
Gestational high blood pressure or preeclampsia
Excessive blood loss or severe tears after delivery
Depression after birth
C-Section
Abortion
Cesarean Section
Psychological Screening. Potential surrogates are required to submit to psychological testing with a licensed psychologist, who will interview and evaluate the potential surrogate, as well as the intended parents. Any potential mental illness and misinformation is also reviewed. If the person is found to have a history of mental illness, she may be considered unfit to participate in the surrogacy agreement.
What Intended Parents Must Show
The surrogate wishes to know about you, her Intended Parents, before she enters into a legal contract with a full understanding of your character and relationship with each other, including the reasons for her carrying a child for you. It is the same for You: you should know whether she presents any risk to you or your unborn child. You also will want to know what medical issues might arise during the pregnancy, and if you are using an egg donor, whether she has any fertility issues which might pass to your child. A surrogate may require extensive medical testing of herself and you and your partner, and screening of any third-party donors. Such tests may include screening for infectious disease, such as HIV, Hepatitis B and C, Cytomegalovirus (CMV) and Diabetes. She may also ask for genetic testing of herself and your donor(s), such as Carrier Screening Panels for genetic disorders.
California surrogacy contracts require the Intended Parents to furnish their surrogate with a letter from their doctor stating that they are in good health and capable of withstanding the rigors of pregnancy. Surrogates may also ask that Intended Parents provide them with proof of their ability to provide for the child and fund the endeavor. Intended Parents should discuss the matter with their treating physicians to determine the necessary documentation.
The Surrogacy Process
The next stage of the surrogacy process involves matching the surrogate with the parents. To optimize success, many parents work with surrogacy agencies. Agencies have professional matchmaking specialists who work with surrogates and parents. In California, the surrogate has a right to (and should) hire her own representation. While some birth mothers find it preferable to work with the same attorney, this is not typically advisable.
Typically during this stage the parties agree upon whether the surrogate will be compensated, if at all. If the surrogate is set to receive compensation, an amount is often agreed upon. Surrogates are typically compensated around $25,000 to $50,000. Surrogates may be reimbursed for medical expenses, transportation costs and psychological guidance as well, in addition to other necessities. The parents may be liable for the surrogate’s legal fees in some cases.
After a surrogate has been contracted, she will begin a series of medical assessments to ensure that she is fit to undergo a pregnancy. This may involve a medical examination or physical, blood work, drug screening and more. Once this occurs, the parents should select a fertility clinic with a firm understanding of IVF, surrogacy and the associated legalities.
If using an agency, the agency will likely have a partner clinic. Alternatively, the parents can choose an IVF clinic. This step is essential to the surrogacy process, as the clinic will determine whether or not the surrogate is healthy enough to carry the pregnancy.
If the surrogate is healthy enough to carry a pregnancy, the surrogate-mother can begin the next step, which is IVF. IVF is a complicated procedure that must be performed with great care.
Prior to the procedure, the surrogate can undergo several treatments. She may be recommended to utilize medications to thicken the lining of the uterus and control her menstrual cycle . The surrogate and parents should discuss options for embryo testing. The parents can choose to defer testing to their surrogate or conduct testing themselves.
Items such as a sperm sample, the surrogate’s eggs (in some cases) and the embryos will be transferred from the clinic into their host bodies. This procedure typically entails several steps. First, the surrogate’s construction of her uterine lining will be carefully observed. The transfer is timed such that the embryo(s) will implant in the optimal time. Second, the surrogate will take progesterone and estrogen to build up her uterine lining.
In some cases, the parents will hire a reproductive endocrinologist, who will work on the IVF in addition to the primary IVF clinic. The reproductive endocrinologist can monitor the surrogate’s abdominal cavity for pregnancy, and screen for defects, if so desired. In the ideal scenario, an embryo will implant and create a viable pregnancy. This process can technically be skipped by way of intrauterine insemination (IUI), which is possible if there is a known sperm donor and a known egg donor.
The ideal scenario is that the embryo successfully implants and the pregnancy remains healthy throughout the full term. In the case of a miscarriage, the parties typically have the ability to try again, since they often have remaining embryos. Therefore, the surrogate-mother will undergo the IVF process once again in order to try and have another successful pregnancy.
Once the pregnancy is successful, the surrogate is frequently placed on bed rest. She should not exercise, should not smoke, and should not drink alcohol. The parents typically help oversee this process, since the surrogate usually does not reside very far away. However, she should always seek out her own medical advice and support throughout the duration of the pregnancy.
Payment for Surrogacy
Understanding the financial aspects of surrogacy in California can help you decide whether pursuing surrogacy is right for you. California surrogacy costs can vary widely from one situation to another, so the price of surrogacy may be more or less than you expect.
Surrogate Compensation
On average, surrogate compensation ranges from $40,000 – $70,000 for a California gestational surrogacy (where the surrogate carries a child that is conceived using the egg of the intended mother or donor and the sperm of the intended father or donor).
Surrogate compensation can be broken down into two major categories: base fee and add-ons.
Agency Fees
The average agency fee is approximately $16,000. Some surrogacy agencies will include surrogacy escrow services and surrogacy matching services. A surrogacy escrow is used when the intended parents do not want to handle the financial part of the surrogacy process. The escrow company will hold all funds during the surrogacy process, and will disburse funds based on the agreed-upon timeline. The out-of-pocket costs for a surrogacy escrow is about $1,500.
If the surrogacy process involves an egg donor, the intended parents will likely pay an egg donor agency fee on top of the surrogate agency fee. This fee is generally $5,000-$6,000.
Medical Expenses
There are various medical expenses to consider when undergoing surrogacy in California. The average medical costs for a California gestational surrogacy can range from $30,000 – $60,000. As the cost of fertility treatments and medicines varies from person to person, the difference in average medical costs depends on how many embryo transfers are required from start to finish.
Legal Fees
During a California surrogacy, the typical legal fees range from $6,000 – $7,000. When pursuing surrogacy, each side hires their own separate attorney: the surrogate will work with a surrogacy attorney to review the surrogacy agreement and complete the surrogate’s parentage order, and the intended parents will work with a surrogacy attorney and a surrogacy escrow service to discuss financing and set up the escrow account.
Through surrogacy, intended parents create or expand their family in an incredibly fulfilling and meaningful way. Not knowing how to navigate each step of the surrogacy process can feel intimidating. We recommend working with a surrogacy agency, which can help you through the entirety of the surrogacy process and ensure you stay on track at every step.
Potential Complications and Legal Issues
There are various potential challenges that can arise during the surrogacy process. For the most part, the issues are already addressed in the surrogate or egg donor agreements. Time delays can happen for various reasons, including issues with the IVF cycle or embryo transfer, the surrogate not having enough amniotic fluid, or having to find a surrogate mother because the original surrogate is no longer able to proceed (the surrogate may have had a miscarriage or undergone an unsuccessful IVF cycle). Determining what your surrogate should be compensated for a delay is also agreed upon in advance and detailed in the legal agreement. Parental rights can also be a source of contention. Technically, a child born through surrogacy legally has three parents (the egg donor, the sperm donor, and the carrier). But California law has a legal procedure whereby intended parents can terminate all rights of the surrogate and her spouse (if applicable). This embryo transfer and parentage process can be complicated if you are utilizing an anonymous egg donor who is donating to multiple couples, and therefore many children being born using the same donor. What if one sperm donor is contesting parental rights and the others are not? What if one child develops a medical defect? Should the sperm donors have any parental or financial responsibility for the child? What about unforeseen circumstances that may require a surrogate to change her mind or rescind consent? This has been the case in several high-profile cases where a surrogate changed her mind about giving up her baby. In that situation, the surrogate would legally have to successfully counter the surrogate and intended parents’ claim for parentage, which would have to overcome a high legal burden to prove that the biological parents were in a way unfit to be parents. UPDATE: In California surrogacy cases we represent all parties involved to ensure that there are no legal pitfalls. We can assist in cases when the intended parents or the surrogate change their minds.
Conclusion: Taking the Next Steps with Surrogacy
In this article, I have sought to demystify the many state and federal regulations and requirements contained within California surrogacy laws. I started by isolating the major aspects of California surrogacy case law, showing how they are influenced by the Uniform Parentage Act and federal immigration laws. I then examined the California surrogacy requirements for intended parents and surrogate mothers in order to separate fact from fiction and give an overview of what the surrogacy process looks like in our state. While I hope that you now have a good understanding of what both the surrogate and intended parents will need to do in order to start the surrogacy process, the question remains: what steps should you be taking to move forward with surrogacy? The answer to this question is quite simple . First, consult with a family law attorney who specializes in surrogacy in California. They will help you to locate local treatment centers, fertility clinics, and assist you in navigating the process. Next, seek out other professionals who can be of assistance to you as you plan for surrogacy. Financial planners, accountants, and therapists can all be invaluable resources for both the surrogate and intended parents as you navigate the surrogacy process and begin building the family you have always wanted. Surrogacy is a complicated issue; however, you do not have to go through it alone. Make sure that you have the right people on your side.