SURROGACY and EGG DONATION
LAW IN CALIFORNIA
Author: Thomas M. Pinkerton, Esq.
Infertile couples around the world have found California to be a favorable legal forum for a surrogacy and egg donation. California Courts have taken the lead of all U.S. jurisdictions by favorably extending existing California Family Law statutes to protect all parties to surrogacy and egg donation pregnancies. Prospective parents, surrogates and egg donors can be reasonably certain that their intentions, as expressed by their agreement, will be upheld in California. The California courts have consistently upheld the intended parents' rights and obligations to their parenthood when they use a surrogate or egg donor to help create their families. This result will generally hold true regardless of whether the parents use their own genetic material, donated eggs or artificially inseminate a surrogate.
A recent California court ruling has fostered what is already a favorable legal climate for surrogacy and egg donation agreements. The question to the court in In re Marriage of Buzzanca (March 10, 1998) was whether a married couple who used both anonymously donated sperm and egg and used a surrogate to carry the child, were the parents of the child born six days after the husband filed for divorce. (The husband filed for divorce six days before the birth of the child, and the intended father claimed that since he was not the biological father of the child, he was not the child's father and could not be forced to adopt.) The case was heard by the California Fourth District Appellate Court, who issued its decisive opinion on March 10, 1998, declaring both intended parents to be the parents of the child.
Johnson v. Calvert
The California Supreme Court, in the 1993 seminal case of Johnson v. Calvert (1993) 5 Cal.4th 84 held that the gestational surrogate had no parental rights to a child born to her, affirming a lower Court ruling that a gestational surrogacy contract was legal and enforceable. The Johnson court reasoned that there were two distinct ways to prove maternity using the existing California Family Law Code; first by proof of giving birth to the child, and second, by proving genetic consanguinity (blood tests). When two women can so prove they are the mother (as is the case in gestational surrogacy) the Johnson Court held that the one who intended to "bring about the birth of a child that she intended to raise as her own -- is the natural mother under California law." In footnote 10, the Court stated in effect that the intended mother who carries a child born from donated egg is the mother of the child by the same reasoning.
In Re Marriage of Buzzanca and The Artificially Inseminated Surrogate
The Buzzanca court extended the Johnson v. Calvert ruling to surrogacy births where the Intended Parents are not biologically related to the child. The Buzzanca court reasoned that the intended mother to a surrogacy contract using a donated egg could prove she was the mother under existing California Family Code Section 7610 by virtue of her consent to ". . . a medical procedure which results in a pregnancy and eventual birth of a child." As such, although the two women to the surrogacy contract could both prove their maternity, the "tie" is broken in favor of the woman who was intended to be the mother as expressed in the surrogacy or egg donation contract.
Artificial Insemination
In a "traditional surrogate" arrangement, the surrogate and her egg will be fertilized through artificial insemination with the sperm of the intended father. Thus, the surrogate is biologically related to the child. In a gestational surrogacy, the surrogate has no biological relationship to the child.
Before the Buzzanca court explained its previous holding in Marriage of Moschetta (1994) 25 Cal.App.4th 1218, artificial insemination carried with it the highest legal risk in California, Before the Buzzanca ruling, the intended parents of a child born to a traditional surrogate had to adopt the child after birth. Consequently, if the surrogate changed her mind before the intended mother adopted the child, the surrogate would remain the legal mother.
The Buzzanca Court, however by commenting on its previous holding in Moschetta, explained "between the lines" that an artificially inseminated surrogate would not prevail against an intended mother's claim to motherhood. As the Buzzanca court explained, the intended mother in Moschetta gave up any claim to the child. The lawsuit was brought by the intended father against the surrogate, seeking a judgment that the child had no mother. The intended mother in Moschetta had gone so far as to file a brief in support of the surrogate's claim to the child. The Buzzanca Court explained that in Moschetta there was no "tie" to break between two women who could both prove they were mothers. After Buzzanca then, the artificially inseminated surrogate would likely not be able to successfully assert her maternity to a child she gives birth to when the intended mother claims she is the mother and conversely, the artificially inseminated surrogate will likely be able to successfully assert her motherhood if the intended mother does not claim her maternity.
Nevertheless, the Buzzanca facts did not involve an artificially inseminated surrogate. Therefore we cannot say for sure who would win in a battle for the child born to an artificially inseminated surrogate - the surrogate or the intended mother. If the surrogate does not dispute the intended mother's maternity, we have no trouble obtaining a judgment before the child is born that the intended mother and intended father are the legal parents of the child born. This judgment entitles the intended parents to be listed on the original birth certificate.
The Single Man, Unmarried, Or Gay Couple Surrogacy
Women can become a single parent by going to a sperm bank and undergoing artificial insemination. For a man, however, he must use a surrogate, either through artificial insemination or through two women, one to donate an egg, and the other to serve as surrogate. Although Buzzanca did not have a single man before the court, this writer has successfully used the reasoning of the Buzzanca holding to obtain judgments for single men that he is the sole parent of a child born to a surrogate. Traditionally, a single man would either remain a co-parent with the surrogate, or attempt to terminate the surrogate's maternity through a cumbersome and unpredictable abandonment proceeding. After the Buzzanca court's explanation of Moschetta, however, where the surrogate does not claim she is the mother, the court will likely follow the intentions of the parties, by declaring that the single man is the sole parent and the surrogate is not the mother.
Under Moschetta, however, if the artificially inseminated surrogate changes her mind and decides she is the mother, the case may be governed by Moschetta, allowing her to obtain a judgment of Maternity. It is therefore this writer's opinion that a single man would have a stronger legal position by using a gestational surrogate. (ie. a surrogate who carries an embryo created from donor egg.) In this scenario, the single man would be able to argue that he is the recipient of a donated egg, and that he has the same standing as the Buzzanca intended mother who was the recipient of a donated egg. In absence of an egg donation from a separate woman, if the surrogate changes her mind and claims she is the mother of the child, he would have a harder time arguing that a "tie" exists between anyone. (1)
The legal analysis for a gay couple becoming a parent has similarities with both the single man and married couple analysis. Similar to the single man analysis, the courts have not directly dealt with two men asking for a judgment that they are the sole parents of a child on the original birth certificate. By applying the Buzzanca reasoning to the two men responsible for creating a child using artificial reproduction, should result in the same result as Buzzanca - the two men are the parents of the child.
Similar to the married couple, both men will be listed on the original birth certificate of a child born to a surrogate if a judgment is obtained declaring both of them to be the sole parents. A recent California case Dunkin v. Boskey (2000) has reasoned that an unmarried couple should be treated the same as a married couple in this area. The intended father who consented to his female domestic partner's artificial insemination was held to have a breach of contract case for damages against his female domestic partner after they split up. This judgment supports this writer's opinion that the Buzzanca holding should apply to anyone using a medical procedure to create a child - not just a married couple. Not all judges agree on whether the Buzzanca holding should be extended to unmarried couples, however, so it is advisable for the gay couple to approach a surrogacy only after discussing these legal issues with an attorney experienced in obtaining paternity judgments for gay couples.
Birth Certificates
In all cases where a surrogate gives birth to a child for another couple or person, The California Office of Vital Records will only allow the intended parents' name(s) to go on the birth certificate if the certificate is accompanied by a Superior Court judgment naming the intended parent(s) as the legal parent(s) of the child. Without such a judgment, the surrogate's name (and if she is married, her husband's name) must go on the birth certificate. Because the birth certificate must be registered with the office of Vital Records within ten days of the birth, the judgment should be presented to the birth records department of the hospital at the time of birth. As a practical matter, the judgment should be obtained no later than twenty weeks into the pregnancy. The practical reason for this advice is that after twenty weeks Vital Records will require either a certificate of birth or fetal death, both of which require the parent's name(s).
Where there is both an intended mother and an intended father, filling out the birth certificate is straightforward. The hospital where the child is born simply follows the court judgment and fills out the birth certificate with the intended mother and intended father's names in the appropriate boxes. If a single man is the sole parent, however, the box designated "Mother" cannot be left blank. This means that the single male parent has two choices. He can opt to have the surrogate's name go in the box for "Mother" and his name in the box for "Father," or he can elect to have his name go in the box for "Mother," and leave the box for "Father" left blank. In both cases, the judgment calls for the birth certificate to be "reissued" with the single man's name in the box for "Father," and the box for "Mother" left with a dash (-). The best choice is to have his name go in the box for "Mother," so that the birth certificate is as accurate as possible from the time of birth.
For the gay or lesbian couple, the best course of action is to have the court issue its judgment requiring that both intended parents' names go on the birth certificate, one in the box for "Father," and one in the box for "Mother." The judgment should then also allow the birth certificate to be reissued with the word "Parent" inserted before each name. The re-issuance process can take as long as nine months after the birth.
Conclusion
United States and the World. Gestational surrogacy has become a tried and true legal method used by prospective parents with predictable results regarding the main issue - they are the legal parents of the child. Traditional surrogacy for the traditional family has appeared as a viable cost-effective alternative to gestational surrogacy with the risks to the intended parents all but evaporated after the decision in Buzzanca.
In light of the favorable surrogacy and egg donation climate in California, infertile couples from more restrictive states and around the world have found it beneficial to choose California for their surrogacy and egg donation needs. It is absolutely essential that the parties approach any surrogacy or egg donation agreement, with up to the minute information through the help of an experienced surrogacy and egg donation attorney.
1. The alternative is to establish the traditional surrogate's intention to "donate her egg" as well as serve as a surrogate before the insemination. This would set up Buzzanca facts establishing the single male parent as the recipient of the donated egg, and give him arguably the same standing as an intended mother in denying the surrogate any parental rights.
Updated: March 2001
Copyright 1998. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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