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Surrogacy

Definitions and Questions/Answers

The Surrogate:
The surrogate is a woman who has agreed to gestate a child for another person or persons to raise after the child is born.

The Intended Parents, (IP):
The Intended Parents are the persons who hire a surrogate to gestate a child because the intended parents want to raise a child of their own which they are unable to gestate.

What Does Surrogacy Mean?

Surrogacy is a procedure where a woman becomes pregnant for the benefit of another person or persons who cannot conceive a child themselves. There are two types of surrogacy and in the State of California, the legal rights of parties to a surrogacy agreement depend largely on what type of surrogacy is involved:

  1. Traditional Surrogacy: Also known as Artificial Insemination is where the intended father is the genetic father and the surrogate is the biological mother. The surrogate is in law and in the biological sense, the mother of the child unless and until she allows the intended mother to complete a step parent adoption of the child after birth.
  2. Gestational Surrogacy: This is a variation of the traditional surrogacy arrangement. It occurs when the intended mother’s egg is used or a donor’s egg is used. The egg is fertilized through In Vitro Fertilization, (IVF) and then placed inside the surrogate mother.

As another variation of the IVF procedure, if one or both of the intended parents are unable to produce an egg or sperm sufficient for IVF conception, the IPs will use a sperm donor and an egg donor to create an embryo for gestation by a surrogate. In this case, neither of the intended parents is the biological or legal parent of the child that is conceived. Therefore, the intended parents must adopt the child after he/she is born. The surrogate must be a party to the adoption in that she must consent to it in writing after the birth of the child or children.

Who can be a Surrogate?

At this time, that is a decision a proposed surrogate makes with a surrogacy agency. Which agency you decide to choose is entirely up to you once you have made the decision to become a surrogate. If you are married, the decision must be made in partnership with your spouse. If you have children it is in their best interests to explain, (depending in their age and understanding), the process that you will be going through as a family. As a family, you should diligently investigate the agencies, their practices, contract terms, their care before and after the process. As a special note, you should read, read and re-read any written agreement provided to you. You should also seek the advice of an attorney before you sign anything.

Do I Need an Attorney?

Surrogacy is a complex area. The principal role of most attorneys involved in surrogacy is to assist in negotiating the contract, drafting and implementation of the contract for you. You may also need the help of an attorney in locating, meeting and matching you with intended parents. Throughout the pregnancy and ultimately the birth, you may need an attorney to help you understand the legal hurdles that have to be cleared before, during and after the birth; support you need, parentage or adoption procedures, international law requirements and your participation in making arrangements for the child or children to leave California with their Intended Parents. These are complex issues, which will require the assistance of an attorney.