For best results children should be conceived and born in California to ensure our state’s surrogacy laws apply.
Surrogacy, or a woman carrying a child on behalf of another individual or couple with fertility issues, is not a new concept. However, many states have been slow to adopt laws to regulate this non-traditional means of forming a family. While California does have surrogacy laws that theoretically will apply to all children conceived in California, in practice a surrogate fleeing the state can result in a drawn out custody battle, especially if the surrogate gives birth in one of the six states that actually have laws that prohibit the enforcement of surrogacy contracts.
Here’s one example of the difficulties that can ensue when a surrogate decides to go rogue. Crystal Kelley, a Connecticut resident, agreed to bear a child for a couple in her state. The intended father’s sperm was used to fertilize an egg from an anonymous donor and the resulting embryo was implanted in Kelley. When the fetus was 5 months old, an ultrasound revealed complications. The fetus had a cleft palate, a brain cyst, and heart defects. The couple asked Kelley to terminate the pregnancy and offered her $10,000 to do so.
Kelley was not willing to have an abortion, and instead fled to Michigan, which is one of the six states where the law prohibits enforcement of surrogacy contracts. When Kelley gave birth, her name was listed on the birth certificate as the mother, despite the fact that she was not genetically related to the child. The baby was then put up for adoption and taken by a family with other special-needs children.
In this case the couple did not dispute the custody outcome, but one can imagine how complicated the situation might have become if they had attempted to do so.
Fortunately, California residents should have a much easier time when going through the surrogacy process so long as conception and birth take place in California. Our laws allow for anyone (married or single, gay or straight) to hire a woman to carry a child for them. The child may be conceived with eggs and sperm from the intended parents or from anonymous donors. The intended parent or parents will have their names listed on the birth certificate regardless of whether or not they are biologically related to the child.
This process is known as a gestational surrogacy and is now amply defined California law. However, if the surrogate’s egg is used, it is a traditional surrogacy and this remains vague under the law. It is possible that the surrogate could be considered to have parental rights because she is biologically related to the child.
If you are considering having a child by surrogacy, it is important to consult with an attorney who is experienced in surrogacy contracts and child custody issues. That way you can ensure your surrogacy contract affords the best possible legal protection of your rights as the intended parent.
