Traditional Surrogacy the woman carrying the child is the BIOLOGICAL AND GENETIC mother.
The women conceives using her own egg by insemination with the father’s sperm. The legal mother or both of the intended parents will end up having to adopt the child.
Gestational Surrogacy.- the woman carrying the child is not genetically related to the child – an embryo is created in vitro, using either an intended mother’s eggs or the eggs of an egg donor, fertilized with the sperm of an intended father or a sperm donor, and then the embryo is transferred into the uterus of an unrelated carrier.
As of January 1, 2013, California law (AB1217) now is completely clear that gestational surrogacy is legal as long as appropriate rules are followed, the most important of which are detailed below.
Surrogacy is legal for single people and for gay couples, or for heterosexual married couple
In many states as California, surrogacy is an equally good and legal option for singles as for couples, for unmarried couples as for married couples, and for gay couples as for straight couples. What matters is that the intended parent or parents make sure that they are represented by skilled and experienced counsel who will make sure that all i’s are dotted and t’s crossed. As long as everything is done correctly, all parties – intended parents and surrogates – will be well-protected.
Are you thinking having a baby through surrogacy. What role a lawyer plays in that process?
A. An attorney fundamentally has two separate roles in the surrogacy process: (1) the attorney will prepare a written contract for you and your surrogate; and (2) the attorney will bring the legal action to make you the child’s parents. In addition, an attorney who is experienced in assisted reproduction law can help you make sure that you and your surrogate are a good match, can help you figure out insurance for the surrogate and the baby, and can help you troubleshoot any issues that might come up between you and your surrogate during the pregnancy.
A surrogacy contract to be legally binding the intended parents and the surrogate must each have been represented by independent legal counsel of their own choosing.
A surrogacy contract needs to address at least these issues:
(a) Biological material (eggs and sperm). The donor must be identified in the contract with the surrogate.
When the couples are gay male, the contract must specify whether the sperm it is used belows to one or both. The anonymous donor can be the eggs or the sperma. In this circunstances no identifying information is required.
(b) Compensation to the and how much is she being compensated.
i.- A surrogate contract usually has to provide for her gestational services, invasive procedures, carrying multiples (twins or triplets), travel expenses, lost wages, maternity clothing, legal fees, provision of breast milk, etc. In order to avoid any term or missunderstunding the contract should spelled out all the terms about fees.
ii.- Surrogacy funds must be held by either a licensed attorney (who will hold the funds in a state registered legal trust account that is governed by State Bar rules) or a licensed, bonded escrow company. The surrogacy agency cannot hold the funds.
iii.- behaviors are expected of Intended Parents and Surrogate? A surrogacy contract generally will set out behavior expectations for intended parents and surrogate including compliance with all medical directives, dietary and travel restrictions during pregnancy, agreements on communication about the pregnancy and attendance at prenatal visits, who will be in the delivery room, etc.
iv.- They intended parents and the surrogate need to get into an agreement about multiple pregnancies.
a) they will not selectively reduce a triplet pregnancy unless there is a serious medical issue with one of the babies
b) continuing the pregnancy would be dangerous for the surrogate, then they need to be matched with a surrogate who is willing to carry triplets.
c) a surrogate who is unwilling to carry more than twins will be a perfect match for intended parents who are unwilling to have more than twins.
The contract needs to make clear the plan of implantation and reduction, to set expectations and avoid a mismatch of intended parents and surrogate.
v.- A surrogacy contract will always state clearly that the intended parents will be the legal parents and the surrogate (and her husband, if she has one) will not.
The parentage is established in a timely manner and pursuant to the laws of the relevant state(s). Since each state has its own laws and procedures for establishing parental rights, the exact manner for addressing this will vary depending on the states where the surrogate and intended parents live.
when is the moment to be recognized as legal parents-. you will be able to get a judgment making you legal parents prior to your child’s birth. Courts often take a month or more to process these actions, so it is best to leave plenty of time.
Pre-birth surrogacy judgments on the papers, with no actual court appearance required. Your attorneys will draw up all the papers for you, making it a pretty stress-free process for surrogate and intended parents.Some courts are issuing pre-birth judgments in surrogacy cases, these judgments do not technically go into effect until a baby is born, to avoid a legal conflict over medical decision-making prior to birth. Therefore, the Surrogate remains in full control over her prenatal care and medical choices prior to the moment of delivery, contingent on whatever the contract between surrogate and intended parents specifies in this regard.
choose the county with the best procedures and file our pre-birth action there
in California a law, of January 1, 2013. determine that the parentage of a child born through gestational surrogacy can be brought in:
A) the county where the intended parents live
B) the county where the child was conceived,
C) the county where the surrogate lives,
D) the county where the child is born.
This usually gives the parties at least a couple of choices of appropriate venues for their court action.
Jurisdiction of an out-of-state surrogate
1.- If the child is conceived in the state of California, California courts retain jurisdiction to determine parentage.
Some states like California courts have jurisdiction to determine the legal parentage of any child conceived in California.
whether conceived through sex or through assisted reproduction.)
The child’s birth certificate will be issued by whatever state the child is born in, and some states take issue with California courts telling their departments of vital records what to put on a birth record.
Not all states will issue birth certificates reflecting that a child has two parents of the same sex. it always is a good idea to seek the advice of an attorney in the state where your child will be born, preferably prior to making a final decision to use a surrogate from another state.