(continued from previous column...)
In one case married parties arranged that a traditional surrogate carry a child. Neither party contributed sperm nor an egg. Before the child was born, the ’father’ filed for divorce. He negated responsibility for the child saying that he was not the biological parent. The court held him to his original intention (Buzzanca).
California recognizes a contractual intent as a basis for parentage. This creates a favorable legal forum for parents who choose to use surrogates.
artificial insemnation and traditional surrogacy agreements
When prospective parents use a sperm donor and the egg of the surrogate, the child is genetically related to the surrogate --she is in fact the egg donor and surrogate. Before the Buzzanca case, the prospective parents ran some risk and typically needed to terminate the rights of the surrogate as part of a separate (nail biting) adoption proceeding under an earlier case (Moschetta).
The courts now uphold an intended parents rights and an adoption is no longer necessary.
gestational surrogacy and the agreements that follow
This process differs from artificial insemination in that both the sperm and the egg are donated. The egg may belong to one of the intended parents, and the sperm too. Since the egg is not that of the surrogate, little to no legal basis exists for the carrier of the fertlized egg to pursue a conflicting claim of parentage.
surrogates
Agencies generally choose surrogates who have a good health record and who will not pursue parentage claims against the intended parents. They screen the surrogates for criminal or drug offences as well as negative health history, including that of miscarriages.
parentage judgment
A parentage suit is necessary to establish parentage legally, terminate any 'rights' of the birth mother, and to allow the names of the intended parents to be listed on the birth certificate.
The Judgment should be in place at birth to ensure the correct issuance of a birth certificate.
The courts are happy to grant these judgments. Few people like going to court. One judge once said to the aurdience in his courtroom that the only people who really want to come to court are those adopting children. The rest of the litigants do not want to here. This is true. Family law deals creating order out of the finances and losses of a break up, but parentage judgments in these cases create a new happy order which a single parent or couple might not have otherwise.
international clients
Surrogacy is not legal in many European countries. For that reason many intended parents enter surrogacy agreements in California with Californian surrogates. You should note that a child born in this manner takes the nationality of the intended parents. If you would prefer, I have translated this page into French, German and Spanish. You should refer to the English for the correct legal terms however.
communication and advertisement
This site is a communication in terms of Rule of Professional Conduct 1-400. The information in this family law site is not meant to constitute legal advice, and nothing in this site constitutes a guarantee, warranty, or prediction regarding the outcome of any legal matter. Advertising in this site is limited to California. All photos and graphics are for artistic purposes only, and none of the images are those of staff or clients unless otherwise stated.
extract from the buzzanca ruling...
"The trial court then reached an extraordinary conclusion: Jaycee had no lawful parents. First, the woman who gave birth to Jaycee was not the mother; the court had astonishingly already accepted a stipulation that neither she nor her husband were the "biological" parents. Second, Luanne was not the mother. According to the trial court, she could not be the mother because she had neither contributed the egg nor given birth. And John could not be the father, because, not having contributed the sperm, he had no biological relationship with the child."...And futher...
'We disagree. Let us get right to the point: Jaycee never would have been born had not Luanne and John both agreed to have a fertilized egg implanted in a surrogate."
61 Cal.App.4th 1410; 72 Cal.Rptr.2d 280 In re the Marriage of John A. and Luanne H. Buzzanca, California Court of Appeal, Fourth District, Third Division, March 10, 1998.
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For men, declining sperm counts and increased testicular abnormalities are recognized as causes of infertility. |
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| According to the American Pregnancy Association, Infertility is a growing issue that many couples face. It effects 6.1 million American couples. (That is 10% of American couples of childbearing age). |
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| For women, the most common causes of infertility are tubal blockage, endometriosis waiting too late in life to have children. |
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am i a parent?
California is a modern haven for surrogacy because the law in this state supports a number of bases for parentage (maternity and paternity).
a child born during a marriage is presumed to be the child of that marriage; a parent determined to be genetically related to a child may be adjudged the parent under the Uniform Parentage Act; a child conceived by a party by artificial insemination and treated or held out as their own, may be legally adjudged as a child of that person (Elisa B) ; and further, parties who contract with a surrogate, will generally be held by the courts in this state to be the child's parents.
In this sense, the court upholds subjective contractual intent over genetics absent conflicting claims.
egg donation contracts
Three things are needed to give birth to a child. An egg, a sperm cell, and a carrier of the fertilized egg who births the child. Some intended parents have none of the three and will need donors while some single parents (or two parent families) might have their own sperm cells or eggs available either in a preserved state or naturally.
Depending on what is needed, different contracts are needed. Perhaps most significantly, at least an egg donation contract and/or surrogacy contract will be required.
surrogacy contracts
A well-written contact will deal with the rights of the intended parents to accompany the surrogage to medical appointments, the payment of health insurance for the surrogate, and the times and dates of delivery and surrender of the child to the intended parents. This is critical and establishes the key requisite for parentage.
case law
In cases where egg donors have sought custody of the child after birth - where children appear to have two or possibly three mothers - the donor, the surrogate and the intended parent, Courts in California have denied custody rights to the former and held that intent controls.
Applying FC 7610, the courts have come to the conclusion that a person who consents to a medical procedure which results in a pregnancy and eventual birth of a child, is the parent by virtue of that consent.
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