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Q: Surrogacy Legal Aspects ( Answered,   1 Comment )
Subject: Surrogacy Legal Aspects
Category: Health > Children
Asked by: clawrence-ga
List Price: $45.00
Posted: 02 Nov 2006 14:51 PST
Expires: 02 Dec 2006 14:51 PST
Question ID: 779548
I am considering using a surrogate due to fertility issues.

I understand that the process involves a surrogate contract and a
paternity application to the local court - in this case a Californian
one.  The surrogacy contract has to be signed at the beginning of the
process but the application to the court not until around 5 months
into the pregancy.

At the end of the process a birth certificate gets issued showing the
intended parents inplace of the surrogate.

My question is - is if one partner initiates the process independently
of the other partner can the other still become the intended parent if
they join the process at the point of the court application? But not
at the initial surrogate contract point?

Is there a legal approach that will allow flexibily on this issue -
for example an addendum to the contract?

Does the issue change if own eggs / donor eggs / husbands sperm /
donor sperm are used? Or which partner initiates the process.


Subject: Re: Surrogacy Legal Aspects
Answered By: keystroke-ga on 01 Dec 2006 22:14 PST
Hello clawrence,

Thank you for your question.  

I will let you know that Google Answers is not a substitute for
professional legal advice, as the disclaimer below states.  However,
here's what I have found to advise you on your situation.  I highly
recommend that you wait a few months to gain your spouse's consent
before proceeding, to make things much more clear legally and easier
for you later.

In summary: an addendum to the pre-conception contract would be
accepted by a court as far as applying for a judgment of parenthood
goes because a contract is not even required in the first place for
this judgment.  You do not need a pre-conception agreement at all for
this process (although it helps), but you need to fill out the many
forms (listed at the end of my answer) and have the signature and
consent of all parties involved (surrogate, other parental parties,
etc.)  Your greatest problem will be with the fertility clinic and
your own attorney, who may not allow the addition of a parent after
conception.  The pre-conception contract is an extra legal protection
to ensure the interests of all parties in case of later disagreement
about the child's parentage.  You will most likely want a lawyer for
this extremely important document.  There is a Parentage Order which a
surrogate and her partner or spouse must sign before the declaration
of judgment is entered into the courts. This gives up all their
rights.  If this is signed, it's hard to imagine the pro-surrogacy
California courts giving the surrogate any rights to the child.  If
your significant other declined to sign a pre-conception agreement but
then agreed to sign the California forms for parenthood, that is a
declaration of parenthood and you should be fine as far as the birth
certificate goes.  Where you could run into trouble is if your
co-parent decides that he or she does not want the baby later, after
agreements have already been signed.  In cases such as this, a
pre-conception agreement has been held in court as binding intent of
parenthood and proof of parental status.  If all parties did not agree
before conception, however, intent can still be proven.  The
"Buzzanca" case which I dicuss in a bit did not involve a
pre-conception agreement but the court found that the parents had
brought about the birth of the child.

An addendum to the contract can be made, adding the additional parent.

Northern California Fertility Medical Center  

"It is advisable for the parties to have the agency agreement (between
the agency and Intended Parents) and the surrogacy agreement (between
the surrogate couple and Intended Parents) reviewed by separate legal
counsel. Proposed changes may become the subject of an Addendum to the
Agreement... Additional legal costs will be incurred to establish the
Intended Parents as the legal parents of the child through a
declaratory judgment, adoption or stepparent adoption."

The pre-conception agreement is required by many fertility clinics and
treatment centers to protect the center and the families and parties
involved.  The individual treatment center may or may not allow
addenda to the contract, and the clinic may or may not allow you to
proceed without the consent of your spouse.  In addition, I found that
many attorneys specializing in assisted fertility cases require all
involved parties and intended parents to meet with the attorney prior
to any sort of treatment beginning.

Jackie Gorton Nurse Attorney 

"Once your clinic medically clears your surrogate candidate, we send
you a copy of the IVF/Gestational Surrogate Contract and refer you to
an attorney to represent you regarding your contract rights and
obligations. The attorney drafts an Addendum of any changes. This
attorney represents you (and your partner) in completing the Parentage
Order once your surrogate is pregnant. The remainder of the
administrative fee and surrogate fee is due upon completion of the
Contract and Addenda. The Contract and Addenda must be signed by both
parties and all fees paid before your surrogate starts injectable

In the course of my research, I found that there are not many specific
laws governing this, but there are court cases which give precedents. 
For most surrogate pregnancies, it is in the parents' best interest to
sign a complete parental agreement before treatment begins in any way,
to protect their interests in the child over that of the surrogate. 
Some surrogates later decide that they want to keep the child, and in
most California court cases, pre-treatment contracts which state that
the intended parents are the only ones with legal rights to the child
have been upheld as proof of legal parenthood.  California, overall,
is very sympathetic to the needs of those using surrogates and
gestational carriers and that is why many prospective parents from all
over the world choose to carry out their surrogacies in that state.
Anyway, making an addendum after pregnancy brings the case open to the
claims of any other interested parties to say that they are the legal
parents.  If another parent comes into the agreement after pregnancy,
the surrogate or egg donor could use that as cause for their own
parenthood during the pregnancy, too.  Of course, this is unlikely,
but you can see why a pre-conception agreement is certainly better for
all parties involved.  If possible, I advise you to wait until consent
can be given by all parties, rather than waiting a few months, as this
could make quite a difference legally if there is ever any decision by
the other parent to deny his or her parenthood.

This situation has arisen, for example, in the "Buzzanca" court case
in which a husband of a divorcing couple that had had a child by
surrogacy claimed that he was not the child's father since he was not
genetically related to the child, and that he was not obliged to offer
child support under the state rules which required the child to be a
child of the marriage.  A court ruled that he was, in fact, the father
of the child, because he had agreed to the child's birth and taken
actions to bring the child into the world.  If the husband or wife in
the situation you describe signs an addendum to the pre-treatment
contract, he or she is agreeing to become the child's father or mother
and the court will most likely recognize that as such.  There is a
possibility that he or she could turn around and say that he/she did
not agree to the child's birth since he/she did not consent
beforehand, however.  The Buzzanca judges relied heavily on the fact
that the husband had agreed to arrange the child's birth even before
conception, even though no pre-conception written agreement existed.

GLAD-- Selected Bibliography of Recent Co-Parent Cases

Court of Appeal held that: artificial insemination statute applied to
both intended parents,
and thus, intended parents were treated, in law, as natural parents; husband became
lawful father by causing conception of child, even though wife
allegedly promised to
assume all responsibility for child's care, and thus, husband was
obligated to support
child; and fact that written surrogacy contract had not been signed at
time of conception
and implantation did not abrogate husband's obligation to provide
support to child."


"Under California's Parentage Act, the husband is the child's legal
father, although not the biological one. According to the court's
analogy to AID, the Buzzancas' arrangement and consent to the IVF
procedure using a donor's egg cells and sperm, and to the surrogate's
impregnation, made them the parents of the resulting child, analogous
to the way that a husband who consents to the AID procedure becomes a
parent to the wife's child."

"The final Kass decision, based solely on the couple's pre-treatment
signed form with the IVF clinic, aligns with the concept of parenthood
by contract adopted by some courts in ART litigation, and advocated by
several academics. This approach has been used to determine a child's
legal parentage in cases in which more than two parties claim to be
parents of a child who is already born or in gestation. For example,
in a surrogacy arrangement, the surrogate may change her mind during
pregnancy or after giving birth and decide to keep the child instead
of giving the child up for adoption to the couple who contracted for
her gestational services. Or, in another scenario, a man who donates
sperm to an unmarried woman may want to establish his paternity
against the wishes of the woman, who has decided to raise the child on
her own. Some of the people seeking recognition as the parent may have
no biological relation to the child, or may not have been married to a
person having a biological relationship to the child.

Advocates of parenthood by contract would determine a child's legal
parentage by enforcing the parties' private preconception agreements.
Thus, a child's parents would be those who brought about the child's
birth, intending at the time of conception to become the child's legal
parents. Advocates of this view aver that the concept of parenthood by
contract encourages the parties to plan and negotiate in advance of
pregnancy, and protects the parties' expectations."

California Surrogacy-- A Gay Primer

"The Court of Appeal
found that when a married couple -- unable to procreate on their own -- causes
the conception of a child by use of medical technology, with the intent to parent
the child, they will be held to the status of legal parents regardless
of genetics."

The situation you describe does differ based on gender of the parents
involved.  A birth certificate requires a mother to be listed. 
California has ruled, in the case "Johnson v. Calvert" (1993), that a
child born of surrogacy can have two mothers, one biological and one
genetic (in the case of the arranging mother using her own eggs in the
gestational carrier).  In the case of a mother who is not related to
the child by eggs or gestation, she only has the pre-conception
agreement to prove intent to parent the child and bring about the
child's birth.  Being related to the child genetically provides an
extra layer of legal protection.

GLAD-- Selected Bibliography of Recent Co-Parent Cases

"The Supreme Court affirmed, holding that although the
Uniform Parentage Act recognizes both genetic consanguinity and giving
birth as means
of establishing a mother and child relationship, when the two means do
not coincide in
one woman, she who intended to procreate the child is the natural mother under
California law."

"Law relevant to Reproductive Technologies"

"Where a surrogate mother was carrying an embryo created by anonymous
parents, and neither the couple contracting for the child nor the
surrogate mother were genetically related to the child, the couple
were deemed the child's parents. In re Marriage of Buzzanca (1998) 61
Cal. App. 4th 1410, 1421, 1428.

Is a surrogate contract valid?

In Johnson v. Calvert, the CA Supreme Court upheld the basic validity
and enforceability of surrogacy contracts although many think these
contracts violate public policy. Johnson v. Calvert (1993) 5 Cal. 4th
84, 95. The court refused to acknowledge two mothers and resulted in
determining who the legal mother was from who intended to rear the
child. In Re Baby M, 542 A2d 52 (N.J. Super. Ct. Ch. Div. 1988) had a
different result, finding a surrogate agreement against public

When you go to file the papers, you will fill out this form: 
(of course, consult your attorney to ensure these are all the required forms)

Petition to Establish Parental Relationship

Declaration for Default or Uncontested Judgment

Advisement and Waiver of Rights

Entry of Judgment: Establishment of Parental Relationship


You will want to file these forms five months into the pregnancy AT
THE LATEST.  After that time, a birth certificate or form indicating
fetal birth will be required for the application, which means that the
surrogate and her husband, if she is married, will be listed as the
child's parents on the original birth certificate.


Google cache

Google Answers
"Pre-birth order /legal paperwork for gestational surrogacy"

Search terms:
contract addenda surrogate pregnancy
declaratory judgment california surrogate parent
surrogate contract birth certificate application california
in re Marriage of Moschetta
surrogacy application birth certificate california
"california office of vital records" + surrogate birth certificate
addendum to surrogate contract egg
addendum to surrogate contract fertility

If you need any additional clarification, let me know and I'll be glad
to assist you.

Subject: Re: Surrogacy Legal Aspects
From: keystroke-ga on 01 Dec 2006 22:17 PST

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