Surrogacy Law
What is a surrogate contract?
A surrogacy agreement is a written agreement entered into by intended parents and a surrogate which serves as the foundation for establishing the intended parents’ parental rights, terminating the surrogate’s parental rights and setting forth the parties’ rights and obligations throughout their arrangement.
What is the purpose of a surrogacy agreement?
The purpose of the agreement is to establish the intended parents’ parental rights, terminate the surrogate’s parental rights, and to set forth agreements on important terms, such as how many embryos will be transferred during the embryo transfer procedure, agreement about communication between the parties during the pregnancy, setting forth the amount of involvement the intended parents may have with regard to medical decisions and freedom to speak with the treating physicians, setting forth conduct restrictions (ie. diet, dangerous activities, travel, medications), agreement regarding health insurance and medical expenses, agreeing upon the establishment of a trust or escrow account and setting forth the compensations and reimbursements the surrogate will be eligible for
What states allow surrogacy?
Many states allow for surrogacy, but each state’s laws are different, and the laws are always changing.
Do all states have similar laws regarding surrogacy?
Some states have statutes and case law that allows for surrogacy, some states have no statutes and no case law, but surrogacy is practiced, and some states have specific bans on surrogacy.
How long will it take to finalize this agreement?
Depending on the parties, but anywhere from 2 weeks to a month is a reasonable expectation.
Must our surrogacy agreement be signed before our surrogate undergoes injectable medications?
Yes, signed and notarized
How much will the drafting of the agreement cost?
Do the surrogate and intended parents need to have separate legal representation?
Yes, under California law both parties must be represented by independent attorneys.
I do not live in the San Diego area. Will I need to travel to your office?
There is no need to travel to our office. We are able to handle everything over email, telephone, wechat and skype.
Can any lawyer prepare a surrogacy contract?
It’s important to work with an attorney that has experience in this field. This field is very unique and requires a breadth of knowledge that can only be gained through experience.
Can a surrogate decide to keep the baby?
In california, we obtain a judgment from the court prior to the birth of the child declaring the intended parents’ parental rights (the pre birth order). Therefore, at the moment of birth, the intended parents are legally the parents of the child. Further, parental rights are determined by the court on the basis of the legal agreement. A court will look at the intentions of the parties at the time the contract was entered to determine who should be treated as the parents of any child. To be in compliance with California law, this agreement must be entered into prior to the embryo transfer procedure, or prior the time a pregnancy is ever achieved. Therefore, even if a pregnant surrogate attempted to claim parental rights, the existence of the written agreement would preclude the establishment of her parental rights.
Egg Donation Law
How long will it take to finalize the agreement?
Depending on the parties, 1 to 2 weeks is a reasonable expectation.
Must our agreement be signed before our egg donor undergoes injectable medications?
How much will the drafting of the agreement cost?
Do the egg donor and intended parents need to have separate legal representation?
Best practices would be to have both parties have separate independent legal counsel
Can the egg donor assert her parental rights at some point in the future?
This would be extremely unlikely. The agreement effectuates a waiver of donor’s claim for parental rights.
Is it possible for either us or our child to meet the egg donor at some point in the future?
Yes, this is something that you would typically include in the agreement if this was something you were interested in. However, this is something you need to make sure the donor is comfortable with prior to matching with her.
How do you sign an egg donation agreement when the arrangement is anonymous?
The agreement is signed twice. Once using your pseudonym, and then using your true name. The true name signature page is not shared with the other party.
Can any lawyer prepare an egg donation agreement?
Parental Establishment / Parentage Rights
What is the parental establishment confirmation process?
The parental establishment process is the finalization of your parental rights in the court. The process involves proving to a judge, through written testimony of the IVF Physician, intended parents, surrogate and attorneys, that the child being gestated by the surrogate was a result of an embryo transfer procedure using embryos belonging to the intended parents, and it was performed pursuant to a written agreement whereby the intended parents expressed their intention to be the parent of any child that is born, and the surrogate expressed her intention that she would become pregnant, but that she would have no parental rights over any child that was conceived. Once completed, the state of California officially recognizes the intended parents’ parental rights. The judgment (or pre-birth order) is a document signed by the judge which will give the birthing hospital authority to treat the intended parents as the legal parents in every respect, including allowing them to make medical decisions, take custody, and direct the hospital to fill out the birth certificate according to their wishes.
What happens if I elect not to go through the parental establishment confirmation process?
The Surrogate would be legally recognized as the parent of the child. Her name would be entered onto the birth certificate.
Is a parental establishment confirmation the same as an adoption?
No. These are totally different.
Must we appear in court for the parental establishment confirmation hearing?
Must an attorney represent my surrogate?
Yes, by law, both parties must be represented by attorneys.
Will our names go directly on the birth certificate?
If a pre-birth judgment is in one state, must our surrogate deliver our child in that state?
Not always, but it depends on the circumstances.
How long does the finalization process take?
This takes several months to prepare, file, and await the hearing. The goal is to begin at the beginning of the second trimester and have it completed near the beginning of the third trimester
Birth Certificates and Apostilles
How long must I wait to receive my child’s birth certificate?
It depends on the county of the birth, but generally 1-3 weeks.
Will my surrogate’s information be noted on my child’s birth certificate?
If your child is born in California, no, your surrogate’s name and information will not appear on your child’s birth certificate.
Is it possible to obtain my child's passport within a short time frame?
Yes, you can apply for an expedited passport.
Will my child's social security number/card automatically be sent to me?
You need to apply for this.
Are legal costs different for international couples?
Cost can increase if you need assistance with translation. In addition, it is recommended that you consult with an attorney in your home country for the purpose of seeking legal advice regarding the naturalization of your child.
