Assisted Reproduction

A gestational surrogate, also referred to as a gestational carrier, is a woman who carries a pregnancy for another person or persons. Embryos belonging to the intended parent(s) and created by an in vitro fertilization procedure, are clinically transferred into the surrogate‚s uterus. The resulting child is not genetically related to the surrogate (unless the surrogate‚s eggs are used in the in the vitro fertilization procedure).

A traditional surrogate is a woman who carries a pregnancy for another person or persons. The surrogate is artificially inseminated with the sperm of the intended father or sperm donor. Because the surrogate is genetically related to the resulting child, these situations are legally more risky and much less common than gestational surrogacy.

An egg donor, also referred to as an ovum donor, is a woman who donates her eggs/ova to another person or persons. The eggs/ova are surgically retrieved by a physician through a transvaginal aspiration procedure. The eggs are then fertilized outside the body with the sperm of the intended father or a sperm donor, through an in vitro fertilization procedure, and resulting embryos are transferred into the uterus of the intended mother or surrogate.

While it is not permissible to pay for eggs and/or genetic material and/or for any relinquishment of parental rights, the standard of practice in California is that it is permissible to pay egg donors for such items as pain, suffering, inconvenience, lost wages and travel expenses. While many egg donors, such as family members and friends, prefer not to be paid, the compensation to a paid egg donor in California is typically in the range of $2,500 to $5,000.

While it is not permissible to pay surrogates for eggs and/or genetic material and/or for any relinquishment of parental rights, the standard of practice in California is that it is permissible to pay surrogates for pain, suffering, inconvenience, lost wages, travel expenses, miscellaneous living expenses and for the pre-birth support of the child. While many surrogates, such as family members and friends, prefer not to be paid, the compensation to a paid surrogate in California is typically in the range of $25,000 to $50,000, plus various additional payments.

Whenever a third party (i.e. surrogate, egg donor, sperm donor, embryo donor) is involved in an assisted reproduction procedure, it is extremely important to have a contract in order to protect each party, and to properly set forth matters such as the parties‚ respective rights, liabilities, obligations, and risks. While it is not mandatory that any party retain an attorney, the role of an attorney is extremely important in advising the parties on current legal and other issues in the assisted reproduction arrangement, in drafting a clear and complete contract which is consistent with the current standard of practice, and to assist the parties in the necessary court and related procedures to establish the parentage of the intended parent(s). It is also important for each side to be represented by separate legal counsel that is experienced and knowledgeable in assisted reproduction matters. Since procedures, laws and trends are certainly subject to change, it is not prudent to attempt something as important as family formation without the assistance of a qualified attorney from ACAL.

In California, it is "unlawful for anyone to knowingly use sperm, ova, or embryos in assisted reproduction technology, for any purpose other than that indicated by the sperm, ova or embryo provider‚s signature on a written consent form." California Penal Code, Section 367(g). Accordingly, the recipients of sperm, eggs and/or embryos are restricted in their use and/or ultimate disposition (i.e., donation for own use only, cryopreservation for future use, donation to research, donation for conception, and/or destruction). It is therefore critical that the parties have a very specific and clear contract, prepared by qualified and experienced legal counsel from ACAL.

It is very common in egg donation, sperm donation, and embryo donation matters for the parties to be anonymous to one another. In contrast, anonymous surrogacy arrangements are quite rare and a bit tricky. However, this has been accomplished in California by ACAL attorneys who are experienced with the nuances of successful outcomes in such cases.

Adoptions are not performed when only an egg donor and/or sperm donor is involved in the assisted reproduction arrangement. In terms of embryos, although a form of "embryo adoptions" may be performed, there are no laws or court cases in California requiring any adoption procedure, and the embryo donation may be done by contract only.

In terms of surrogacy, while an adoption may certainly be performed, it is legally preferable to establish parentage by a judgment entered by the court. Once a certified copy of the judgment of parentage is obtained and provided to the California Office of Vital Records, that office will prepare the birth certificate with the intended parent(s) indicated as the sole parent(s) of the child. Nevertheless, there are situations where the pre-birth parentage judgment cannot be obtained, or for some reason, is not obtained prior to birth. Those situations may require some form of adoption.

To best protect the rights and responsibilities of all involved, it is vital to work with a qualified ACAL attorney who will explain the available procedures and legal risks, and the timing of those procedures.

There have cases in California which are extremely favorable to surrogacy and which make California an excellent and highly desirable jurisdiction for a surrogacy arrangement. In Johnson v. Calvert, a case which concerned a gestational surrogate with a child conceived from the intended parents‚ own ovum and sperm, the court held that the surrogate had no parental rights to the child and that the intended parents were the sole legal parents. In the more recent case of In Re Marriage of Buzzanca, the court extended the ruling in Johnson, holding that a surrogate also has no parental rights when the intended parents are not biologically related to the child (i.e. when the child is conceived by donor ovum and donor sperm), and that the intended parents are again the sole legal parents of the child.

While the ruling in the Buzzanca matter included some favorable language concerning artificial insemination matters, that case did not specifically involve "traditional surrogacy." The current procedures and risks in California are less certain for traditional surrogacy in California than for gestational surrogacy although there have been numerous successful such arrangements in California. Similarly, the procedures and risks are less certain for same-sex and single intended parents, but are frequently completed without complications. Again, it is essential that qualified ACAL counsel be consulted on any surrogacy matter.

It is both permissible and common in California for intended parents from other states and/or countries to come to California to engage in assisted reproduction arrangements and to benefit from the protections offered in California. Nevertheless, experienced counsel would advise all families to consult with legal counsel in their own state and/or country, so as not to run afoul of any laws which might apply to their particular circumstances.