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What are the State Laws in California for Surrogacy?

Although surrogacy has become much more common over the past few years, it is still a somewhat controversial topic. Likewise, some of the states in the U.S. are more accepting of this process while others are not tolerant of surrogacy at all.

The United States surrogacy laws can actually be quite complicated. Therefore, for those who intend to use this procedure in order to have a child, it is important to understand exactly how the state of residence deals with such laws - if at all. Some of the essential questions to ask prior to moving forward with the surrogacy process should always include:

  • Are surrogacy agreements allowed, and if so, are they enforceable?
  • Does it make a difference if the surrogate is compensated for her services or if she is simply reimbursed for her actual expenses for the surrogacy process?
  • Does it make a difference legally whether the surrogacy procedure is gestational or traditional?
  • Are there any types of alternatives to post-birth adoption - either prior to or after the child's birth - in order for the intended individual or couple to become the legal parent or parents?

California Surrogacy Laws

The state of California is accepting of surrogacy agreements. Therefore, it may be referred to as a surrogacy friendly state. Although California has no statute that directly addresses the surrogacy process, the state's courts have used California's Uniform Parentage Act for the purpose of interpreting a number of different cases that relate to this procedure.

California allows commercial surrogacy, as well as regularly reinforces contracts with regard to gestational surrogacy. In addition, the state makes it possible for all intended parents - regardless of their marital status and/or their sexual orientation - to establish legal parental rights prior to the actual birth of their child (or children), as well as without the need to go through proceedings for adoption.

One of the most well known cases in California regarding surrogacy occurred in 1993. The case, Johnson versus Calvert, held that the intended parents as part of a gestational surrogacy agreement should be recognized as both the legal and the natural parents.

In a gestational surrogacy situation, the surrogate is not the biological contributor of the egg, but rather the carrier of the embryo that is made up of the intended father's sperm and the intended mother's egg and is then implanted into the surrogate's uterus via in vitro fertilization.

In the Johnson versus Calvert case, the court ultimately decided that the person who had intended to procreate - in this case, the intended mother who provided the egg - would be considered as the child's natural mother.

A more recent situation in 2005 involved the California Supreme Court deciding three companion cases that concerned lesbian couples who had reproduced using surrogacy. In all three of the cases, the court held that through the Uniform Parentage Act, two women could in fact be deemed as the legal parents of a child who is produced via surrogacy.