The journey of building a family through surrogacy often brings joy and anticipation, but it also comes with complex legal considerations. Choosing surrogacy is not only a medical and emotional decision—it is fundamentally a legal process. For intended parents and surrogate mothers alike, a clear understanding of the law and strict compliance with legal requirements is essential to protecting everyone’s rights, avoiding future disputes, and ensuring a smooth process.
While California is widely known as one of the most surrogacy-friendly jurisdictions, this “friendliness” is firmly rooted in strict legal compliance. Any deviation from statutory requirements can quickly complicate parental rights, potentially leading to lengthy litigation that could threaten the very foundation of your family.
Paul P. Cheng, Esq., former prosecutor and one of Southern California’s leading trial attorneys, notes: “Many clients underestimate the central role of law in the surrogacy process. An improperly drafted contract, a missed legal step, or a conflict of interest can have irreversible consequences.”
Why California Leads in Surrogacy Law
Unlike many states where laws remain unclear or restrictive, California has established a robust legal framework through statutes and court precedents. Together, these authorities establish clear rights and obligations for both intended parents and surrogate mothers, ensuring:
- Enforceable surrogacy contracts that meet statutory requirements.
- Pre-birth parentage orders, allowing intended parents to be recognized as the child’s legal parents before birth.
- Equal protection for all family structures, including single parents and unmarried couples.
- Defined rights and responsibilities for both intended parents and surrogates, minimizing disputes.
Key Legal Highlights in California Surrogacy
1. Gestational Surrogacy Only
California law distinguishes between traditional surrogacy (where the surrogate uses her own egg) and gestational surrogacy (where the surrogate has no genetic link to the child). Traditional surrogacy carries legal uncertainty, while gestational surrogacy is fully recognized and enforceable.
2. Compensated Surrogacy is Legal
Paid surrogacy is permitted under California law. Contracts may include compensation for the surrogate’s time, medical expenses, lost wages, travel, and other reasonable costs.
3. Independent Legal Representation Required
Intended parents and surrogates must each have their own independent attorney. This ensures fairness, informed consent, and enforceability.
4. Detailed, Legally Compliant Contracts
To be valid, surrogacy contracts must be:
- Signed and notarized before embryo transfer.
- Clear about parentage, compensation, escrow, and financial terms.
- Comprehensive on medical procedures, lifestyle expectations, selective reduction, termination, and dispute resolution.
Common Legal Questions
Q: Can a surrogate change her mind and keep the baby?
A: In gestational surrogacy, no. California courts consistently uphold intended parents’ rights, provided the contract was properly executed before embryo transfer.
Q: Can non-genetic intended parents be recognized as legal parents?
A: Yes. California applies the “intentional parent” principle. If you are designated as the intended parent in a compliant surrogacy arrangement, you will be legally recognized as the parent—even without genetic connection.
Q: When is legal parentage established?
A: Intended parents can petition for a pre-birth order during the second trimester. Most courts issue the order based solely on documentation, without a hearing. This ensures legal parentage at the moment of birth.
Q: What if the surrogate resides in another state?
A: California courts have jurisdiction if the embryo transfer occurs in California or if either party resides here. However, the child’s birth certificate will be issued in the state of birth, making early consultation with attorneys in both jurisdictions essential.
Why Legal Guidance is Essential
Although California law is favorable, the process remains complex. Every stage—from due diligence and contract drafting, to securing pre-birth orders—requires careful legal navigation. At the Law Offices of Paul P. Cheng & Associates, we recognize that this is more than a contract—it is the foundation of your family’s future.
Our role is to:
- Provide clear, professional legal guidance throughout the surrogacy journey.
- Draft and negotiate comprehensive, enforceable contracts that protect your interests.
- Guide you efficiently through court procedures to secure undisputed parentage rights.
If you are considering surrogacy to build your family, we invite you to contact us for a confidential consultation. Let us help safeguard your parental rights and support you every step of the way.