California as a Forum for Surrogacy
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.
Creating New Life - What is Required?
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. A well-written contact will deal with the rights of the intended parents to accompany the surrogate 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.
Two or Possibly Three Mothers
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. In one case married parties arranged that a traditional surrogate carry a child. Neither party contributed sperm or 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). 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.