The use of Assisted Reproductive Technology “ART” through the means of surrogacy and sperm, egg, and embryo donation has increased in recent years. Here’s what you need to know about assisted reproduction laws in California.
Assisted Reproduction Law Under AB 960
On January 1, 2016, AB 960 was implemented into California legislation. This law was designed to protect families, particularly unmarried parents, who conceived children through artificial insemination rather than through traditional sexual intercourse. The new law updates forms used by parents and donors to protect their respective rights.
California laws provide forms used to display the parents’ and donors’ respective intentions. California legislators and lawyers alike advise parents and donors to sign such forms before conception.
California assisted reproduction laws are quite complex. Attempting to navigate California’s complex legal system can be tough, and Pride Legal recommends consulting an experienced family law attorney before undergoing assisted reproduction. It’s important to take the time to understand your legal protections and options before becoming pregnant or hiring a surrogate. Understanding your legal options allows you to navigate the legal system and handle assisted reproduction in a way that protects your rights.
Although these forms protect parents’ rights under California law, other states may not recognize your parenthood if you are not a genetic or birth parent. If you are not a genetic or birth parent, it may be advisable to get a judgment of parentage or adoption to protect your legal rights outside of California jurisdiction.
Types of Assisted Reproduction
Surrogacy
Surrogacy is an arrangement in which a female agrees to birth a child for another person or couple, who will become the child’s parent(s) after birth. Surrogacies are often supported by legal agreements.
What should be included in a surrogacy agreement?
Surrogacy agreements are intended to document the intentions and responsibilities of each party involved in the arrangement. A surrogacy agreement should clearly state that the surrogate will not hold physical or legal custody of the child(ren) she births and that the intended parents will accept full legal and physical custody of the child(ren) that the surrogate births. Also, the agreement can include the surrogate’s full acknowledgment that she is willingly accepting the potential risks and medical procedures.
The surrogacy agreement can also include specific procedures for medical issues that may arise during the surrogacy, including but not limited to
- abortion
- selective reduction
- how medical emergencies will be handled
- how medical decisions will be made
- embryo transfers
- the surrogate’s health care
A surrogacy agreement can also include terms relating to the surrogate or legal parent’s personal preferences regarding
- surrogate conduct during pregnancy
- intended-parent contact during pregnancy
- financial terms and escrow arrangements
- the intended parents’ relationship
- changes in circumstances, such as a surrogate’s divorce or move to a different state
- post-birth contact between the surrogate and child
- insurance coverage
- dispute resolution and breach of contract
- privacy, confidentiality, and social media use
It’s important to recognize the jurisdiction (city, state, and county laws) in which the baby will be birthed.
Can a surrogate claim parental rights to my baby?
It is extremely rare for surrogates to change their minds and attempt to claim the child as theirs. Nonetheless, the best way to protect your rights as an intended parent is to have a strong surrogacy agreement. California judges tend to uphold designated parental rights outlined in surrogacy agreements.
What is the parental establishment confirmation process?
In California, when a woman gives birth she is legally presumed to be the child’s mother. However, in surrogacy, a pre-birth court order must establish the intended parents as the child’s legal parents, and terminate the custody rights of the surrogate (and her spouse, if she is married).
Signing and obtaining a “pre-birth order” by a California judge before the surrogate gives birth can secure your rights as an intended parent. A “post-birth order” is issued by the court after the surrogate gives birth, and establishes the custody rights of the intended parents.
Egg, Sperm, or Embryo Donation
Assisted reproduction can also occur through egg, sperm, or embryo donation. Sperm or egg donation can entail in vitro fertilization, a process by which an egg is combined with sperm in a laboratory before being placed in the womb. An individual can also implant an embryo from a donor in the hopes that it will implant and lead to a successful pregnancy.
What should be included in a donor agreement?
A donation agreement can state the intentions and acknowledgments of all parties and their legal responsibilities to each other. It is crucial for a donor agreement to state that the donor does not plant to parent or have custody of any child conceived by their egg, sperm, or embryo. The donation agreement can also include terms regarding:
- donor contact
- the jurisdiction in which future disputes may be handled
- any physical examinations or screening required of the donor
- donor conduct in preparation for the egg retrieval procedure
- the intended parents’ relationship
- custody/guardianship arrangements in the event of the intended parents’ death
- acknowledgment that the donor is fully informed of potential health risks and enters the agreement willingly
- disposition of any excess or unused eggs or fertilized embryos
- financial terms
- dispute resolution and breach of contract
- privacy and confidentiality
Should reproductive donors remain anonymous?
If sperm, egg, or embryo donations occur via a bank, donors will remain anonymous by default. However, clients may choose to acknowledge their donors either for medical or personal circumstances. Terms of donor contact after birth can be included in the donation agreement. Parties can indicate a certain age when the child can contact the donor for personal reasons, or medical information can be included without the donor’s identity being revealed.
FAQs About Assisted Reproduction Laws
My partner and I intend to have a child using assisted reproduction. How do we legally protect the non-birth/non-genetic parent?
If a couple intends to have a child using assisted reproduction and one partner will give birth to the child, the partners can protect the non-birth or non-biological parent’s rights by drafting and signing a detailed written agreement. The written agreement must state that the non-birth parent consented to assisted reproduction. Under AB 960, the protection extends to both married and unmarried couples.
Couples in this situation should fill out the California Statutory Forms for Assisted Reproduction, Form 1. However, if you are using a known sperm/egg donor, you should use California Statutory Forms for Assisted Reproduction, Form 4. Both forms can be found below.
My partner and I intend to have a child through ovum sharing. How can we legally protect our rights as parents?
If you and your partner are seeking to carry and birth a child through ovum sharing, you are both protected under California law. As long as there is evidence that the individual providing the egg intends to be the birth parent, both partners should be considered legal parents. However, to protect your rights, it may be helpful to fill out a California Statutory Forms for Assisted Reproduction, Form 3.
How can my partner and I ensure the known sperm donor is not a legal parent?
In California, there are three ways to ensure that a known sperm donor cannot be legally considered a parent:
- A well-documented oral agreement OR
- Using a sperm bank or medical doctor OR
- Signing a donor agreement before conception
Even in instances where couples follow the law, donors often attempt to claim the child as their own. This is why it is imperative to consult a family law attorney before conceiving a child.
Should my partner and I go through the adoption process or obtain a judgment of parentage?
Although the applicable California Statutory Forms for Assisted Reproduction protect non-genetic or non-birth parents, the National Center for Lesbian Rights advises couples to adopt their child or get a judgment of parentage. This will protect you and your parent’s legal rights as parents when traveling to other states.
Contact Pride Legal
If you or a loved one is seeking to have a child through assisted reproduction, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
