26 Nov 2012 California Surrogacy Law Takes Effect Jan. 1

We wrote briefly in September about California's new surrogacy law, which codified legal best practices ... Here is more detail on the new law that I wrote to assist our partner ART service agencies.

In California, we already have very good surrogacy case law, but with the passage of California Assembly Bill 1217, we now have new and improved—and positive—California legislation regarding surrogacy which goes into effect on January 1, 2013.

The good news is that the very strong case law in California (which is surrogacy friendly and considered by many to be the strongest law in the country) remains unchanged. The current case law essentially provides that intended parents in an assisted reproduction arrangement, whether or not biologically related to the resulting child, should be declared the legal parent of the resulting child. The current legislation in California under the Uniform Parentage Act defines the parent-child relationship as the legal relationship existing between a child and the child’s parents, and it governs proceedings to establish that relationship. Existing law provides that a party to an assisted reproduction agreement may bring an action under the Uniform Parentage Act at any time to establish a parent and child relationship consistent with the intent expressed in the agreement. Existing law also regulates the practice of surrogacy facilitators in assisted reproduction agreements, including surrogacy agreements.

The new legislation, however, provides additional guidance relating to the manner in which surrogacy agreements must be executed, when medical procedures can be commenced, and where parental establishment cases may be filed.  Although some of the procedures outlined in the bill were already utilized by experienced assisted reproduction practitioners, they were not required by law.

So, in essence, the new law creates clear guidance and codifies some best practices for the benefit of all involved. There may well be more we can do in California to further codify best practices, but the provisions outlined in the new law clarify for courts what constitutes a properly executed surrogacy agreement, and they help protect all parties to the agreement—surrogate, intended parents and child—from potential exploitation.

In relation to Gestational Surrogacy Agreements, the new law:

• Requires that intended parents and a surrogate be represented by separate legal counsel.
• Requires notarization of gestational surrogacy agreements.
• Requires the execution and notarization of an agreement prior to the administration of medications used in assisted reproduction or any embryo transfer procedure.
• Requires the parties to a gestational surrogacy agreement to attest, under penalty of perjury as to their compliance with these provisions.
• Provides that an gestational surrogacy agreement executed in accordance with these provisions is presumptively valid.

In relation to establishing legal parentage between intended parents and the resulting child, the new law:

• Permits intended parents to establish parentage prior to the child’s birth.
• Permits intended parents to establish parentage prior to the child’s birth and permits the filing of the parentage action in the county where the child is anticipated to be born, the county where the surrogate or intended parents reside, the county where the agreement was executed, or the county where the medical procedures were performed.
• Requires that a copy of the gestational surrogacy agreement be filed with the court as part of the parentage action.
• Seals records of the agreement to all except parties except the intended parents, surrogate, their attorneys and the state Department of Social Services.

The above summary does not take the place of obtaining legal advice based on your unique set of circumstances. As always, it is best to seek such advice from a qualified and experienced assisted reproduction attorney.