LEGAL FACTS

SURROGACY AND THE LAW - WHOSE CHILD IS IT ANYWAY?
What you should know about Surrogacy in California

SURROGACY AND THE LAW - WHOSE CHILD IS IT ANYWAY?
Tisha Lene Harman, Esq.
A CENTER FOR CHILDREN & FAMILY LAW

Infertility faces countless childless couples around the globe.  Fertility clinics have begun to address the plight of these infertile couples through the combination of science and nature whereby, through surrogacy, ovum donation, sperm donation, or a combination of the three, an infertile couple is able to have a child.  However, to date, California statutory law addressing surrogacy is non-existent despite attempts by the legislature to enact a surrogacy statue.  Case law is scant at best, thus leaving the legal community to sort through a myriad of statutes in an attempt to answer a client’s question as to “whose child is it anyway”?

Generally there are two types of surrogacy, In Vitro Fertilization and/or Gestational Surrogacy and Traditional Surrogacy with numerous variations to further complicate the process.  Preliminarily, each surrogacy arrangement begins with “Natural or Intended Parent(s)”; this couple, be they heterosexual or a same sex couple, are unable to bear children on their own without some degree of assistance from another person or persons, and the Surrogate, who will serve as the host mother and carry the child for the benefit of the Intended Parents and who has no intent to raise the child as her own.  In a Traditional Surrogacy, generally the Surrogate is inseminated with the sperm of the Intended Father/Parent, in contrast to In Vitro Fertilization, whereby an embryo is created from the uniting of the Natural Father’s or Donor’s sperm and Natural Mother’s or Donor’s ovum (egg) is transferred into the Surrogate wherein she carries and bears a child genetically unrelated to her.

If the realm of those involved were to stop here and include only the three people described in the In Vitro arrangement described above, California Statutory Law, pursuant to Family Code §7600 et seq. recognizes both genetic consanguinity and giving birth as means of establishing maternity.  Thus, a problem is immediately inherent; arguably two women have viable claims to establish maternity.  The California Supreme Court, in Johnson v. Calvert (1993) 5 Cal.4th 84¹, ruled that when the two means of establishing maternity do not coincide in one woman, she who intended to procreate the child and raise it as her own, is the natural mother.  This ruling must be recognized as emphasizing the need for a Surrogacy Agreement, entered into knowingly and voluntarily, which clearly manifests the intent of the parties in accordance with the case law.

The surrogacy situation described above, and hence one situation addressed by California case law, is not dispositive of the myriad of possible combinations.  It has been opined there are thirty to fifty possible combinations.  In a traditional surrogacy situation, the surrogate is generally inseminated with the sperm of the Intended Father/Parent.  The Intended Mother/Parent may adopt the child or more commonly, may be able to obtain an Order and Judgment of Parentage without having to adopt.  This situation has not been challenged and the potential outcome of such a challenge can only be posited.

There is the possibility a zygote/embryo is created from the union of donor ovum and donor sperm and transferred to the Surrogate.  In this situation, Family Code §7613 (b) provides the Donor of semen is treated in law as if he were not the natural father of a child thereby conceived.  The Code does not have a parallel provision with respect to ovum donation other than as provided in Family Code §7650 with respect to an action to determine Mother and Child relationship, which provides “the provisions of this part applicable to the father and child relationship apply”.

If the Surrogate is married, Family Code §7611 provides the Surrogate’s husband is presumed the father of the child carried by the Surrogate, and this issue must be addressed in the Surrogacy Agreement and Judgment of Parentage.

Other possible combinations and/or problems must include acknowledgment the Intended Parents may divorce while the child is in utero, the Intended Parents may desire the Surrogate to abort the child and the Surrogate may refuse, upon birth the hospital may refuse to release the child to the Intended Parents or refuse to list the Intended Parents on the child’s birth certificate, or there may be some questions as to paternity/maternity.  Each of these issues and a host of others may be addressed and, to the extent possible, dealt with in the Surrogacy Agreement.  Then, upon birth or prior to the birth of the child, a judgment must be obtained to declare the Intended Parents, the legal parents.

While science has attempted to solve the plight of those unable to bear children, the legal issues involved are numerous and often complicated with no statutory guideline and case law as described above.  Any person/couple entering this process must be fully informed and have a competent team of professionals in place.  This is a time for Intended Parents to carefully choose their doctor, their lawyer, their donor and their surrogate.  While cost is always a factor, it should not be determinative.  Couples are encouraged to look at an attorney’s experience, professional associations/memberships and dedication to this area of practice.  Choose an attorney you feel comfortable with.  It is of the upmost importance procedures be handled correctly, avoiding complications later.  Many attorneys have entered this area of practice without the experience and background necessary to aid their clients through the process.  With the cost of infertility related medical procedures, most Intended Parents don’t have the option to have a second or third chance to get it right.  Be cautious and aware of unscrupulous “professionals”.  This should be a joyous time in your life as you become a parent and welcome your new baby into your family.

¹The Surrogate in Johnson v. Calvert appealed the matter to the U.S. Supreme Court, her writ was denied.

What you should know about Surrogacy in California
By A Center for Children & Family Law

Currently there are no statutes/codes in California regarding surrogacy.  However, the California courts have spoken to the issue of surrogacy when there has been disputes regarding parentage.  What the cases tell us is that when there is any dispute regarding parentage, the courts will look to the intent of the parties – who intended to create this child?  Who intended to raise this child?  Who intended to be the child’s parent(s).  Therefore, it is imperative that any person or couple entering into a surrogacy arrangement must have a surrogacy agreement drafted by a legal professional to protect the rights, duties and responsibilities of the intended parent(s), the surrogate, and the surrogate’s husband if she is married.  Further, most infertility doctors who are familiar with the law and regularly work with surrogates will not proceed with any procedure or even advise a surrogate to commence medication without an agreement drafted by a reputable attorney.

The biggest potential for problems comes when people make the decision to avoid the use of an attorney who practices in the area of family formation and either draft their own agreement, pull a document off the internet, or avoid the use of an agreement altogether.  Surrogacy Agreements drafted by those attorneys who practice in this field attempt to cover all the “what ifs” in the process and to address all the issues that California case law has indicated are valid issues.  For example what if the surrogate changes her mind and wants to keep the baby?  What if the intended parents split up while the surrogate is pregnant?  What if the surrogate is pregnant with multiple fetuses?   A well drafted surrogacy agreement will answer all these questions and more and be clear as to each party’s intent.

People always ask – why do I need all this?  The surrogate is family, the surrogate is my friend etc etc.  Aside from the huge legal issue regarding intent at the time the child is created, I always ask people to step back and think about when they make their best decisions?  Is it when they are in the middle of a crisis, emotional and have little time to think or is it when they can gather information, think about what they are doing and make decisions when they are relaxed.  History with people tells me it is the latter.  In other words, let’s say your surrogate is pregnant, you’ve waited years to have this baby, spent a lot of money, and you find out the surrogate is pregnant with multiples but can only safely carry one.   The agreement should already speak to what you decided to do before you got to this point.  This is peace of mind for the surrogate and hopefully for the intended parents.

So, you have an agreement drafted by a legal professional, you’ve had the transfer, your surrogate is pregnant and you’re a few months away from realizing your dream!  Now what?  Besides the decorating, shopping, baby shower and all around giddiness you feel every day knowing your baby is on the way – you must again return to the legal issues and obtain a judgment of parentage which declares the Intended parent(s) the parent(s) and gives them all legal rights and adjudges that the surrogate and her husband (if any) have no legal rights.  When specific counties allow, this judgment is obtained pre-birth.  There are some situations where your attorney may suggest that one parent needs to “adopt” the child.  When you meet with the attorney you choose to represent you, he/she will advise you on which manner you must proceed.  Legally this is your final step.  Once the judgment is obtained, your attorney will forward a certified copy to the hospital your surrogate will be delivering at (many hospitals are now very familiar with these arrangements and have a specific protocol in place to ensure the transition goes smoothly for everyone) and I always advise keeping an additional copy in your hospital bag and then just wait for the glorious day of your child’s birth.

I cannot stress enough the importance of a well drafted surrogacy agreement.  The above is simply meant to overview the legal issues for you.  A family formation attorney will tailor the agreement to your specific situation and needs, discuss with you the potential legal issues, and ultimately draft an agreement to protect the legal rights all involved.   To find an attorney who regularly practices in the area of family formation, you can go to the website for the California Academy of Family Formation Lawyers @  www.acal.org.

Don’t be afraid of the legal process – a skilled attorney will walk you through it, answer your questions, and most importantly draft for you a comprehensive Surrogacy Agreement.   Best wishes!!