State Laws and Legislation

California Surrogacy Law

Summary: California is accepting of surrogacy agreements and would likely uphold agreements that include lesbian, gay, bisexual and transgender (LGBT) individuals. While the state has no statute directly addressing surrogacy, California’s courts have used the state’s Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases in the country regarding surrogacy rights (Johnson v. Calvert) was decided in California.

Explanation: In 1993, the California Supreme Court decided Johnson v. Calvert, in which they held that the intended parents in a gestational surrogacy agreement (in which the surrogate is not the biological contributor of the egg) should be recognized as the natural and legal parents. The court decided that the person who intended to procreate – in this case, the mother who provided her egg to the surrogate – should be considered the natural mother.

In the 1994 case of In re Marriage of Moschetta, a California Court of Appeals addressed the question of how to determine parentage when a child is conceived via traditional surrogacy (in which the surrogate mother is the biological contributor of the egg) and is born after the intended parents had separated. The Court held that the intended father and the surrogate mother were the legal parents of the child, leaving the intended mother without parental rights.

The 1998 case, In re Marriage of Buzzanca, is an example of how complex the facts in surrogacy cases can get. In Buzzanca, a gestational surrogate was impregnated using an anonymous egg and anonymous sperm. In other words, one could identify six individuals as having the potential to be a legal parent of the child: the egg donor, the sperm donor, the intended mother, the intended father, the gestational mother or the husband of the gestational mother. Ultimately, the Court found that when a married couple intends to procreate using a non-genetically related embryo implanted into a surrogate, the intended parents are the lawful parents of the child.

Finally, in 2005 the California Supreme Court decided three companion cases that concerned lesbian couples who had reproduced via surrogacy, Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G. The court held that under the Uniform Parentage Act, two women can be the legal parents of a child produced through surrogacy. This ruling presumably applies to all members of the LGBT community.

Citations: CAL. FAM. CODE § 7600 et seq. (2009); Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); K.M. v. E.G., 117 P.3d 673 (Cal. 2005); Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005); In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct. App. 1998); In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893 (Cal. Ct. App. 1994).

Updated: Tue, September 08, 2009 - 11:00:46