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How California establishes parentage in surrogacy

On Behalf of | Apr 24, 2023 | Surrogacy Law |

Surrogacy is a wonderful option for California couples who want to become parents but cannot do so themselves. However, establishing surrogacy agreements can be a costly and complicated legal process.

Default parentage and the Uniform Parentage Act

Under the Uniform Parentage Act, the woman who gives birth to the child is presumed to be the child’s mother. If she’s married, the husband is assumed to be the father and automatically has legal custody.

While they make sense, these laws can create some barriers for people seeking to have a child through gestational surrogacy. At the time of birth, the woman who gave birth – known as the surrogate – will need to sign a paper saying she’s not the biological or legal mother to the child.

If she’s married, her husband will need to sign similar paperwork. From there, the intended parents will also sign some documents establishing biological and legal parentage. From that point onward, more or less, they are the child’s legal parents.

Gestational surrogacy vs. traditional surrogacy

In gestational surrogacy, the mother isn’t related to the baby she is carrying. In traditional surrogacy, though, the surrogate is the child’s mother genetically. Because of this, there may be additional steps.

The surrogate will need to sign paperwork that relinquishes her parental rights. And again, if she’s married, her husband must sign similar paperwork. The intended parent who isn’t biologically related to the child must sign stepparent adoption paperwork.

Pre-birth contracts and orders

All the paperwork can be completed and signed before the baby is born, making the birthing process easier. This can also help settle insurance debates and provide all involved peace of mind.

There are also several different contracts that any surrogacy agency will write up for people considering this as an option. While expensive and time-consuming, setting up contracts and other paperwork in advance will allow you to focus on the happy moment.