For many people, building a family and raising children is a lifelong dream. Regrettably, however, for various reasons, some are unable to see these dreams come to fruition without assistance. Same-sex couples, individuals, and heterosexual couples experiencing fertility issues or risks must often consider various other, non-traditional reproductive technologies when it comes to starting a family. Fortunately, modern medical advancements have provided substantial opportunities to these aspiring parents, who would previously have been left with few options.
What is surrogacy?
Surrogacy is one assisted reproductive technology that has continued to gain popularity. In a surrogacy agreement, a surrogate agrees to become pregnant and bear a child or children for a couple or individual in need — the intended parent(s). Generally, the surrogate and the intended parents enter into a surrogacy contract, in which the parties outline the terms of the agreement, which include post-birth parental rights, coverage of medical expenses, and often the form and amount of compensation.
There are two main types of surrogacy: traditional surrogacy and gestational surrogacy. In a traditional surrogacy, the surrogate is artificially inseminated with either the intended father’s or donor sperm, resulting in a child who is genetically related to the surrogate as well as the intended father or donor. On the other hand, in a gestational surrogacy, the surrogate is impregnated through the process of in vitro fertilization, in which the intended parents’ eggs and sperm (or those from donors) are combined, and the resulting embryo is implanted into the surrogate. In gestational surrogacies, the child is not genetically related to the surrogate, but may or may not be related to one or both intended parents.
Surrogacy law in the U.S.
Throughout the United States, as well as internationally, people from all walks of life have turned to surrogacy and assisted reproduction agreements to build their families. In fact, over the past decade, there has been a substantial increase in pregnancies planned pursuant to surrogacy agreements. This is partially due to recent advances in medical technology, specifically in vitro fertilization.
As with adoption and traditional pregnancies, the idea of soon being able to raise and nurture a child can be very exciting. After all, welcoming a new member of the family is certainly a joyous occasion. However, laws in almost every state differ significantly in their approach to surrogacy and surrogacy contracts. This adds another layer of potential complexity regarding the rights of both the intended parents and the surrogate. Without professional guidance by an experienced attorney, parties to a surrogacy agreement can easily be hindered behind a shroud of legal uncertainty.
The nature of surrogacy agreements necessarily entails an inseparable relationship between considerations regarding science, public policy, and the law. Four states — New York, New Jersey, Indiana, and Michigan — have expressly prohibited surrogacy contracts. Fourteen states, including California, permit and regulate at least some form of surrogacy. The remaining states do not address surrogacy in their statutes at all, although some have case law that may impact the enforceability of surrogacy contracts.
Surrogacy in California
Fortunately, for those in California wishing to enter into a surrogacy agreement, California is one of the most surrogacy-friendly states in the nation. California Family Code explicitly provides that certain types of surrogacy agreements are enforceable by state courts, assuming the contracting parties meet all of the statutory requirements. However, while contracting parties may find comfort in knowing that a properly executed surrogacy agreement will be found valid, preparing such an agreement and ensuring protection of crucial rights becomes much more complex. An experienced attorney is able to effectively guide his or her client through the process and even ensure that the contract provides protections over and above those required by law.
For gestational surrogacies in California, among other compulsory disclosure requirements and procedural provisions, California Family Code requires that both parties to a surrogacy agreement be represented by independent licensed attorneys prior to its execution. Without proof that both parties have retained attorneys, a California court has discretion to declare any agreement invalid and unenforceable.
Although traditional surrogacy agreements in California are also permitted, if contested, the validity of a contract for a traditional surrogacy arrangement can be even more uncertain. While California Family Code defines the term “traditional surrogacy,” there are no statutory provisions directly addressing requirements or enforceability of these contracts. Because a traditional surrogate is the child’s biological mother, she may have a more colorable claim to parental rights. Despite California’s generally surrogacy-friendly stance, courts have broad discretion to determine the best interests of a child borne by a traditional surrogate, which can potentially include invalidation of the contract.
As with many other areas of family law, the surrogacy process can be a very emotional experience for all parties involved. Additionally, surrogacy isn’t cheap. Although costs vary significantly depending on the circumstances, a surrogate pregnancy can easily cost over $50,000, and they often cost much more. Having a baby is one of the most joyous and fulfilling occasions in any new parent’s life, especially for those who are unable to conceive. With so much at stake, why gamble with your child’s future?