So You Want to Start A Family

In the United States, the use of surrogacy has become a much more common method for beginning a family, however, this procedure is still somewhat controversial. The truth is that some states in the United States are far more accepting of surrogacy than others.

For example, the New York Surrogate’s Court of Nassau County determined, in Adoption of Baby Girl L.J., that the legislature had not expressly prohibited the use or compensation of surrogate mothers when entering into surrogate parenting agreements. Such arrangements were deemed voidable, although not void.

But in the New Jersey case of In re Baby M, the Supreme Court of New Jersey invalidated surrogacy contracts as contrary to the law and public policy of the state. Furthermore, it voided both the termination of the surrogate mother’s parental rights and the adoption of the child by the biological father’s wife.

Obviously, the United States surrogacy laws can be both complicated and varied from state to state. Therefore, for those who intend to use this procedure, it is important to understand exactly how the state of residency deals with surrogacy laws. Some of the essential questions to ask prior to moving forward with the surrogacy process should include:

1. Are surrogacy agreements allowed and, if so, are they enforceable?

2. 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?

3. Does it make a difference legally whether the surrogacy procedure is gestational or traditional?

4. Are there 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(s)?

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 sexual orientation, to establish legal parental rights prior to the actual birth of their child without the need to go through proceedings for adoption.

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.

California has decided that the intended parents in a gestational surrogacy agreement should be recognized as both the legal and natural parents. In the landmark case of Johnson v. Calvert (1993) 5 Cal.4th 84, 19 Cal.Rptr.2d 494, 851 P.2d 776, the court determined the surrogacy contract violates neither public policy nor the Constitution. The Court also found as between two women who presented acceptable proof of maternity under the Uniform Parentage Act, one by blood test and one by giving birth, the donative mother was the natural mother under California law because she intended to procreate the child and intended to bring about the birth of a child that she intended to raise as her own.

“We see no clear legislative preference in [former Civ. Code, Section 7003] as between blood testing evidence and proof of having given birth. That the mother/child relationship ‘may’ be established by proof of giving birth indicates that proof of having given birth is a permitted method of establishing … the relationship, although perhaps not the exclusive one.”

In general, the court noted: “The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes.” The Court ultimately decided the person who had intended to procreate (in this case, the intended mother who provided the egg), would be considered the child’s natural mother.

When it comes to the use of child surrogacy for the formation of families, California is considered a progressive state. Make sure to check the law(s) in your state of residency before entering into a contract for surrogacy birth of a child.