Building a family through surrogacy involves important legal considerations, and California has one of the most well-established legal frameworks for gestational surrogacy in the United States. State law outlines the requirements for surrogacy agreements, establishes protections for intended parents and gestational carriers, and provides a legal process for determining parentage before a child is born.
Whether you're considering becoming a gestational carrier or growing your family through surrogacy, understanding California's legal requirements can help you move forward with confidence. This guide provides an overview of the laws that govern gestational surrogacy in California, including how surrogacy agreements work, the rights and responsibilities of everyone involved, and the legal steps required throughout the process.
Working with an experienced surrogacy agency can help keep your journey on track by coordinating important legal requirements, such as securing independent legal representation and helping ensure key statutory steps are completed in accordance with California law.
Disclaimer: This page provides a general overview of California surrogacy law and is intended for educational purposes only. It is not legal advice. Individuals considering surrogacy should consult an independent California reproductive law attorney regarding their specific circumstances.
Key Takeaways
California law recognizes and regulates gestational surrogacy through a well-established legal framework.
A written surrogacy agreement must be completed before fertility medications or embryo transfer begin.
Intended parents and gestational carriers must each have their own independent legal representation before signing a surrogacy agreement.
California law allows intended parents to establish legal parentage through a court order, often before the baby is born, providing peace of mind before delivery.
California's legal framework includes protections for both intended parents and gestational carriers throughout the surrogacy process.
Is Surrogacy Legal in California?
Yes. Gestational surrogacy is legal in California, and the California Family Code — including provisions governing assisted reproduction agreements for gestational carriers — establishes one of the country's most comprehensive legal frameworks for the surrogacy process. California law establishes requirements for surrogacy agreements, outlines protections for intended parents and gestational carriers, and provides a legal process for establishing parentage before a child is born.
California law distinguishes between traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement, the surrogate uses her own egg and is therefore genetically related to the child. In a gestational surrogacy arrangement, the gestational carrier is not genetically related to the embryo she carries. Most modern surrogacy journeys, including those facilitated by West Coast Surrogacy, involve gestational surrogacy.
California's Family Code also establishes a legal framework for compensated gestational surrogacy arrangements, including requirements for written agreements, independent legal representation, the handling of certain funds, and the legal establishment of parentage. These laws are designed to provide clarity and legal protections for everyone involved before, during, and after the surrogacy journey.
How Are the Roles Defined Under California Law?
California law recognizes several key participants in a gestational surrogacy arrangement, including the intended parent or parents, the gestational carrier, and, in some cases, egg, sperm, or embryo donors. Each plays a distinct role in the surrogacy process, and state law establishes definitions that help determine legal rights and responsibilities.
Intended Parents
Under California law, an intended parent is an individual — whether married or unmarried — who intends to become the legal parent of a child conceived through assisted reproduction. Intended parents may include individuals or couples pursuing surrogacy for a variety of medical, personal, or family-building reasons.
One of the primary goals of California's surrogacy laws is to establish the intended parent or parents as the child's legal parents through the legal process outlined in the California Family Code.
Gestational Carriers
A gestational carrier is a woman who agrees to carry a pregnancy for intended parents using an embryo to which she is not genetically related. The embryo may be created using the intended parents' eggs and sperm, donor eggs or sperm, donor embryos, or another combination of reproductive material.
California law distinguishes gestational surrogacy from traditional surrogacy. In a gestational surrogacy arrangement, the gestational carrier is not an intended parent and does not have a genetic connection to the child she carries.
Egg, Sperm, and Embryo Donors
Some surrogacy journeys involve the use of donated eggs, sperm, or embryos. While California law recognizes the role of donors in assisted reproduction, donors are separate from the intended parents and gestational carrier and are not parties to the gestational surrogacy agreement unless otherwise required by law.
When donated reproductive material is used, California law requires the surrogacy agreement to identify whether donated eggs, sperm, embryos, or a combination of these were used, while protecting the donor's identity.
What Does California Law Require Before a Surrogacy Begins?
Before fertility medications or an embryo transfer can begin, California law requires several important legal steps to be completed. These requirements are designed to protect both the intended parents and the gestational carrier while helping establish a legally sound surrogacy arrangement.
A written surrogacy agreement must be prepared and signed by all parties.
The intended parents and gestational carrier must each be represented by their own independent attorney before signing the agreement.
The agreement must be properly executed, including notarized signatures or another legally accepted method of affirmation.
The agreement must be fully completed before injectable fertility medications or embryo transfer begin.
What Must Be Included in a California Surrogacy Agreement?
California law requires gestational surrogacy agreements to include specific information before they can be considered properly executed. While every agreement is tailored to the unique circumstances of the intended parents and gestational carrier, state law establishes several core elements that must be addressed.
A California gestational surrogacy agreement generally includes:
The parties to the agreement. The agreement identifies the intended parent or parents and the gestational carrier entering into the arrangement.
Information about the embryo or gametes. The agreement identifies where the eggs, sperm, or embryos originated. If donor eggs, sperm, or embryos are used, the agreement specifies the type of donated reproductive material without identifying the donor.
The intended parent or parents. California law requires the agreement to clearly identify the individual or individuals who intend to become the child's legal parents.
Medical expense arrangements. The agreement must explain how the intended parents will pay for the gestational carrier's pregnancy-related medical expenses, as well as the medical expenses of the newborn.
Health insurance disclosures. If health insurance will be used to cover pregnancy-related care, the agreement must address how the policy applies to a surrogate pregnancy, including any coverage limitations, notice requirements, or potential financial responsibilities that could affect the gestational carrier.
Surrogacy-friendly insurance. The agreement should explain how health insurance applies to the surrogate pregnancy, including whether the policy covers surrogacy and any coverage limitations, notice requirements, or potential financial responsibilities. Reviewing these details early can help identify potential insurance gaps and allow the parties to address them before the pregnancy begins.
These requirements help establish a clear understanding between the parties and provide the legal foundation for the surrogacy arrangement before medical treatment begins.
What Legal Protections Do Intended Parents Have?
California law provides intended parents with a clear legal process for establishing their parental rights in a gestational surrogacy arrangement. By meeting the state's legal requirements, including entering into a properly executed surrogacy agreement, intended parents can seek a court order establishing their legal parentage before the child is born.
In California, an action to establish the parent-child relationship may be filed before birth. Depending on the circumstances, the case may be filed in the county where:
The child is expected to be born
The intended parent or parents reside
The gestational carrier resides
The surrogacy agreement was executed
Medical procedures related to the surrogacy agreement will take place
When the court determines that the statutory requirements have been satisfied, it may issue a parentage order recognizing the intended parent or parents as the child's legal parents. This legal framework provides clarity for everyone involved and helps ensure that legal parentage is established before delivery whenever appropriate.
What Rights and Protections Do Surrogates Have?
California law includes several important protections for gestational carriers throughout the surrogacy process. These requirements are designed to help ensure that gestational carriers understand the agreement they are entering into and have access to independent legal guidance before moving forward.
Under California law, gestational carriers are entitled to their own independent attorney, separate from the intended parents' legal counsel, before signing a surrogacy agreement. This helps ensure that the gestational carrier receives legal advice that reflects her own interests and circumstances.
The surrogacy agreement must also explain how pregnancy-related medical expenses and the newborn's medical expenses will be covered. If health insurance will be used, the agreement must include disclosures about how the policy applies to a surrogate pregnancy, including any coverage limitations, notice requirements, or potential financial responsibilities.
California law also provides legal protections once a properly executed surrogacy agreement is in place. The agreement is presumed valid and generally cannot be rescinded or revoked without a court order. Additionally, court records related to parentage proceedings are subject to confidentiality protections that limit public access.
What Happens After the Baby Is Born?
If the legal requirements have been satisfied and a parentage order has been issued, the intended parent or parents are recognized as the child's legal parents under California law. The gestational carrier is not considered the child's legal parent and does not have parental rights or legal responsibilities for the child.
Because California allows parentage to be established before birth, many intended parents are able to move forward with greater legal clarity when their child is born. The parentage order helps facilitate the issuance of the birth certificate and formally recognizes the intended parent or parents as the child's legal parents.
While every surrogacy journey is unique, working with experienced reproductive law attorneys and a knowledgeable surrogacy agency can help ensure that each legal step is completed in accordance with California law.
California Surrogacy Law FAQs
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Yes. California recognizes gestational surrogacy and has one of the most established legal frameworks in the United States. State law outlines requirements for surrogacy agreements, legal representation, and parentage, helping provide clarity and legal protections for intended parents and gestational carriers.
Learn More About Surrogacy in California
California has one of the nation's most established legal frameworks for gestational surrogacy, but every journey is different. If you'd like to learn more about the surrogacy process or what to expect, West Coast Surrogacy is here to help you explore your options and connect you with the resources you need.