Know the difference: traditional vs. gestational surrogacy
By: Ralph M. Tsong, Principal Attorney at Tsong Law Group
I have referred to surrogacy as one thing, but there are two types of surrogacy in California. “Traditional surrogacy” or “AI (artificial insemination) surrogacy” involves situations where the woman agrees to carry the child and also is the egg donor, and the sperm is provided by the intended father or by a donor. (Family Code section 7960.) “Gestational surrogacy” refers to surrogacy in which a woman who is not an intended parent agrees to gestate an embryo that is genetically unrelated to her.
While the California Supreme Court recognized in Johnson v. Calvert that a contract for gestational surrogacy was valid and that a gestational surrogate had no parental rights to the child after it is born, contracts for traditional surrogacy which assign parentage to an intended mother or father have been found unenforceable in California because it contradicts existing law on parentage. (See In re Marriage of Moschetta.) The surrogate carrier will be considered the natural mother of the child and she will have to consent to a stepparent adoption by the intended parent in order to relinquish her rights.
This is unfortunate because the traditional surrogacy route is much more financially accessible to couples having difficulty conceiving than IVF, retrieving the embryo, freezing, transporting, and implanting the embryo in the womb of the gestational surrogate. The court of appeals in Moschetta observed:
"Infertile couples who can afford the high-tech solution of in vitro fertilization and embryo implantation in another woman’s womb can be reasonably assured of being judged the legal parents of the child, even if the surrogate reneges on her agreement. Couples who cannot afford in-vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law. For them and the child, biology is destiny."
Although the California legislature has defined traditional surrogacy in the Family Code, it has yet to enact law weighing in on court rulings which do not recognize traditional surrogacy.
It can be noted that that there are a small number of states where a traditional surrogacy contract may be legally recognized. For example, Florida allows pre-adoption contracts in cases of artificial insemination without reference to traditional surrogacy. However, if you bring a child conceived through traditional surrogacy born in another state to California without an adoption order that can be recognized by California courts, you may run the risk of the traditional surrogate asserting or holding parental rights. As I wrote in the prior blog post “Same sex couples should consider stepparent adoption for children conceived by ART” a finalized stepparent adoption can eliminate any doubts as to parentage of a child conceived through artificial insemination where the natural mother is not an intended parent. If you have had a child conceived through traditional surrogacy, schedule an consultation with my office at Adoption California to determine if a stepparent adoption is your next step.