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Embryo donation, sometimes called embryo adoption, is a process where individuals or couples who have undergone in vitro fertilization (IVF) and possess surplus frozen embryos choose to donate their embryos to others. In some cases, a partner may wish to donate his or her joint interest in embryos they created with their other partner, so the other partner has the sole parenting rights and determines the disposition of the embryos. Embryo donation follows certain rules laid out in a legal document called an "embryo donation agreement." This agreement outlines the rights and responsibilities of both the people donating embryos and those receiving them. It serves as a guide, clearly defining the terms and conditions for the transfer of frozen embryos, ensuring that the parties’ parental relationship to the embryos and their intentions moving forward is clear. Here are some important points covered in the embryo donation agreement: The Parties’ identities: The agreement includes the names of both parties, the donor(s) and the recipient(s), unless they opt for anonymous donation. An anonymous donation will omit names to respect privacy preferences.   Costs:  While donors are not paid for the donation of embryos as the embryos are already created, the donors may have some costs that they request payment from recipients, such as their screening, attorney fees, and storage fees. The costs section will also make it clear the recipients are responsible for future medical expenses relating to the storage, shipment, and IVF cycle.   Disposition of Remaining Embryos : This part of the contract discusses what happens to any leftover embryos after the recipients have finished their family-building process. Unlike egg donation agreements, where the donors usually have no right to claim the gametes back, embryo donations offer options including donating them back to the donors, whether they may be donated for research, to others, or disposed of based on the donors' wishes.    Parentage and Legal Rights:  The embryo donation agreement establishes that once the agreement is signed, the recipients will be the legal owners of the embryos and legal parents of any resulting child born from the embryos. This transfer of parental rights from the donors to the recipients is irrevocable, meaning that the donors shall not make any claim to the child and the recipients shall not assert that the donors have any responsibility.    Medical and Psychological Screening:  The agreement may include provisions for screening the health and psychological well-being of both donors and recipients. This helps assess their suitability for the embryo donation process and ensure the parties understand the possible psychological risks.   Future Contact and Information Sharing:  Most embryo agreements discuss the possibility of future contact between donors, recipients, and any resulting child and genetic siblings. This section will outline the extent to which information of the parties may be shared by others, and the expectations for ongoing communication. Some donations opt to remain anonymous but have the choice for future communication through a donor portal.   In conclusion, these are the key components of the embryo donation agreement to ensure a smooth and ethically sound embryo donation process. A well-drafted contract will provide transparency and expectations for all parties before starting the process. With the help of separate legal representation, the embryo agreement can be enforceable, protecting the interests of everyone involved.   If you're planning to engage in an embryo donation or need assistance in an embryo donation in California, New York, Illinois, Washington, Arizona, or Oklahoma, the attorneys at Tsong Law Group are licensed to practice in these states. We can assist with reviewing or drafting your embryo donation agreement, explaining relevant laws, and offering legal advice. For more information, contact us now.

Thanks to the Child-Parent Security Act (CPSA) which became effective in 2021, New York became the 48th state in the United States to legalizecommercial surrogacy.If you choose to establish legal parental rights through assisted reproductive technology (ART) in the Empire State, here are the legal requirements for pursuing a surrogate located in New York: The parties need to have separate independent counsel of their own choosing throughout the surrogacy agreement drafting and negotiation. The spouse of the surrogate must be a party to the surrogacy agreement unless they are separated pursuant to a written agreement of separation or have lived apart at least three years; The parties must sign the surrogacy agreement before two witnesses and prior to commencement of medical procedures or medication; If the surrogate is compensated, the funds for base compensation and anticipated expenses must be placed into an escrow account prior to any medical procedure other than medical evaluations to determine a surrogate’s eligibility; The surrogacy agreement must disclose how the intended parents will cover medical expenses, and any health insurance plan must be reviewed and summarized; The parties must be identified, as well as the source of the gametes used; The surrogacy agency must be licensed and registered in New York and their contact information provided; The attorneys need to be identified and the surrogate must acknowledge that she received the Surrogate’s Bill of Rights from her attorney. Under New York Law, the Surrogate Bill of Rights providesthe surrogate has a right to: Make all health and welfare decisions about themselves and pregnancy including: - The right to make decisions to continue or end a pregnancy, - Choice of a healthcare practitioner, - Number of embryos transferred, and - The right to consent cesarean delivery; Have an independent New York licensed attorney paid for by intended parents; Comprehensive health insurance coverage that covers the entire surrogacy process, mental health coverage, and twelve months after the childbirth or end of pregnancy which the intended parents shall pay for a compensated surrogate’s out-of-pocket medical expenses during the same time frame; A life insurance policy of at least $750,000 extending twelve months after birth or termination of pregnancy; A right to terminate a surrogacy agreement before pregnancy. In addition, the intended parents must agree to execute a will prior to the embryo transfer designating a guardian for the resulting children. There are additional requirements which we have not discussed for purposes of brevity. Fulfilling all legal requirements makes each intended parent a parent of the child by law and neither the surrogate nor spouse will be a parent of the child. To obtain a prebirth order in New York, as of the date of this writing, at least one intended parent must be a US citizen or permanent resident and a resident of New York and the surrogate must be a New York resident. If you have read this far and have followed our other blog articles, you might notice that New York imposes additional requirements above and beyond those of other states we are licensed in, including California, Illinois and Washington state. That is true. New York prides itself on having a robust, surrogate-friendly law and is unique by offering a Surrogate’s Bill of Rights. If you are interested in a surrogate or egg donation within New York state, please contact Tsong Law Group and we will assist you.

One of the most important decisions intended parents and donors make in an egg donation is the level of openness and the degree of anonymity. Openness refers to future communication. Anonymity means whether the donation is identified or anonymous. This decision affects not only the egg donor and the intended parents, but also the future children resulting from a donation. Some research shows that it may be beneficial for the mental health of donor-conceived children to know more about their donors, and that concealing the donation may result in feelings of shame or mistrust when the donation is discovered. A recent survey also found donors and donor-conceived children prefer contact in the future. Furthermore, as technology increases with better facial recognition software and more prevalent DNA testing, anonymous donations are no longer guaranteed to be anonymous. Nonetheless, known donations can cause fear of uncertainty for intended parents and donor however, as parties may fear intrusive future contact, as popularized in fictional media. At Tsong Law Group, we discuss all options of openness and anonymity with our clients when we prepare an egg donation agreement and draft or review the agreement accordingly. In this article, we discuss the differences in the options you may choose as you move forward. It must be noted that the degree of openness or personal information shared ultimately depends on what both parties are willing to agree to. Anonymous or Closed Donor Arrangement An anonymous or closed donor arrangement is the traditional type of egg donation that was once the only option available to intended parents and compensated egg donors. In an anonymous or closed donation, the intended parents will choose an egg donor while knowing information such as education, age, blood type, and physical characteristics, and the egg donor will know nothing about the intended parents. When it comes to disclosure, both parties will be protected by confidentiality. Neither party will receive identifying nor contact information for each other, and the clinic, agency and attorneys will preserve the anonymity of the parties. The drawbacks for this type of arrangement include that future communication may be unavailable if the child has medical issues that have a genetic component where the donor might be able to assist or vice versa, if the child learns of the donation and wishes to contact the donor, if the donor has curiosity or a desire to know the child in the future, or if the intended parents discover inaccuracies in the donor profile. Note that recent laws in states such as California may allow the donor to communicate with a child that seeks them out when the child is 18. Semi-open Donor Arrangement Considering the drawbacks of an anonymous, closed donor arrangement, the semi-open donor arrangement mitigates some of these drawbacks while minimizing fear of intrusiveness by either party. In this type of donor arrangement, the arrangement remains anonymous. The parties will not receive full names, phone numbers, or other contact information of the other party. When it comes to future communication, there may be an intermediary for future contact such as the agency or attorneys, or a portal such as Donor Sibling Registry where both parties can register and communicate anonymously. Sometimes the parties may choose to exchange anonymous email addresses. Generally, these arrangements require the intended parents to notify the donor of a successful birth including date of birth, and successful pregnancy. The parties are not required to respond to any contact they receive from the other. Choosing this type of donor agreement allows intended parents to have potential future contact with the egg donor. This may also transition to open donation if the parties choose to identify themselves. The potential drawbacks to this arrangement are that there may be additional costs for joining a portal, or the agency or attorneys may not agree to the contact or may charge to facilitate it, and there is no guarantee there will be any response or that the message will even be checked by the other party. Open Donor Arrangement The third type of arrangement, the open donation, is less common in compensated egg donation but is becoming more common and acceptable. In fact, Colorado has passed legislation requiring donations to be open in the future. In this type of arrangement, the parties will be provided with each other’s identifying information including their full names, and phone and/or email addresses. When it comes to communication, it allows the parties to have direct communication potentially throughout the life of a child born via egg donation. However, this arrangement does not guarantee ongoing contact. The egg donation agreement should have a process for one party to request contact cease if contact is no longer required. The contract should also make clear that certain conduct, such as the donor being referred to as a parent or mother, will not be acceptable. If you are planning an egg donation, contact a fertility lawyer who is experienced in egg donation and versed in the different options for openness and anonymity. Attorney Ralph Tsong has been accepted into the Academy Adoption & Assisted Reproduction Attorneys (AAAA) and Academy of California Adoption-ART Lawyers (ACAL) and can handle your case with ease and efficiency. If you need assistance, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

1. Introduction  President Trump’s Executive Order 14160 – Protecting the Meaning and Value of American Citizenship , is expected to be reviewed by the U.S. Supreme Court . It proposes a significant reinterpretation of birthright citizenship under the Fourteenth Amendment. Set to be decided in the summer of 2026, if upheld by the U.S. Supreme Court, the Order would limit automatic citizenship at birth for certain children born in the United States based on the immigration status of their parents at the time of birth.   In anticipation of possible implementation, U.S. Citizenship and Immigration Services (USCIS) issued an Implementation Plan intended to explain how the Executive Order would be operationalized and how the government intends to apply it. While the Executive Order and the USCIS guidance address several traditional family and immigration scenarios, neither document expressly discusses gestational surrogacy.   Once both documents are analyzed, a critical issue comes to surface: neither the Executive Order nor the USCIS guidance clearly address surrogacy at all.  2. What does the Executive Order Actually Addresses?  The Executive Order limits automatic U.S. citizenship for certain children born in the United States based on the immigration status of their parents. In doing so, it refers to the “mother” and “father” of the child as “immediate biological progenitors” and focuses on their legal or immigration status at the time of the child’s birth.  The Executive Order makes a two-step inquiry: 1) the mother must not be “unlawfully present” in the U.S. or her presence must not be “lawful but temporary” and 2) the father must be a U.S. citizen or lawful permanent resident. Only if both steps are met then the child born in the U.S. can be considered a citizen.   The Executive Order seems to leave out of its consideration children born to surrogacy and the legal concepts of intended parents, legal parentage established by court order, donors, same-sex couples and single fathers as there’s no mention of these concepts.  3. What the USCIS Implementation Plan Says and Forgets to Say  The USCIS Implementation Plan mirrors the Executive Order in many ways. It references the two-step system previously mentioned by the Executive Order, but it also it describes the meaning of the terms: “Unlawfully Present” and “Presence that is lawful but temporary”. However, unlike the Executive Order’s two-step system, the USCIS Implementation Plan provides a list of categories that contains those who may be considered “lawful but temporary”, and another list of categories that are “lawful and not temporary”.    Like the Executive Order, the USCIS Implementation Plan uses the terms “mother” and “father” and ties citizenship outcomes to parental immigration status.  However, the USCIS guidance fails to define who qualifies as a mother, leaving silent whether “mother” means the legal parent, genetic parent, or the person who gives birth. Thus, there is no answer how the policy applies in surrogacy arrangements, how same-sex male couples or single fathers are treated and whether the legal status of the egg donors or gestational carriers are relevant.  4. Why Surrogacy Creates a Legal Gap?  The USCIS Implementation Plan does little to expand upon the Executive Order, by giving no explanation or defining who can be a “mother” and/or “father”. The Executive Order assumes a traditional birth model in which the woman who gives birth is also the child’s legal and biological parent.   We know that in gestational surrogacy, the woman who gives birth, the gestational carrier, is not the legal mother of the child. The legal parents are the intended parents, whose parentage is usually established by court order before or shortly after birth. Also, the egg or sperm donor, if any, while genetically related has no legal parentage status that links her to the child. However, the USCIS Implementation Plan says nothing to address these concept.  Therefore, we are left with the following possibilities: 1) If “mother” means that the person who gives birth, the policy would look to the surrogate’s immigration status, however, the Implementation Plan never says this explicitly; 2) If “mother” means the legal parent, the policy would look to the intended mother, nevertheless, the plan never says this; and 3) If “mother” means the biological progenitor, the egg donor might be relevant, then again, the USCIS Implementation Plan does not address donors either.  Because none of these situations are clarified and no clear rule is provided, the USCIS Implementation Plan cannot be applied to surrogacy arrangements at all.   5. Application to Common Surrogacy Scenarios  a. International Heterosexual Intended Parents  In a typical scenario, an international heterosexual couple enters a gestational surrogacy arrangement in the United States. The intended mother may or may not be the egg provider, and the surrogate is a U.S. citizen.  Under the Executive Order, the analysis would turn on the status of the biological mother (the egg provider) at the time of birth. If that individual was not present in the United States, the Executive Order’s triggering conditions may not be met.  The USCIS Implementation Plan, however, does not explain how to apply its categories in this scenario. It does not state whether the surrogate’s status should be examined, whether the egg donor’s status is relevant, or whether the legal parents’ status matters.  Because the USCIS guidance does not address this situation, it provides no textual basis to conclude that the child would be excluded from citizenship.  b. Same-Sex Male Couples and Single Fathers  The gap in the USCIS guidance is even more apparent for same-sex male couples or single fathers using surrogacy.  In these cases: There is no female legal parent, the egg donor may be anonymous and have no legal relationship to the child and the surrogate has no parental rights or obligations.  The USCIS guidance presupposes the existence of a “mother” but does not explain how to proceed when no woman is both a parent and a genetic progenitor. The guidance does not address whether an egg donor should be considered the “mother,” whether the surrogate’s status is relevant, or whether the absence of a qualifying “mother” means the framework cannot be applied.  This silence creates a strong argument that such cases fall outside the scope of the USCIS Implementation Plan.  c. Does the Citizenship of a Donor Matter?  The Executive Order references “immediate biological progenitors,” suggesting that genetic relationships may be relevant at least at the Executive Order level. The USCIS Implementation Plan, however, makes no mention of donors and does not incorporate genetic parentage into its categories.  Because the USCIS guidance does not address donors at all, it neither authorizes nor prohibits considering a donor’s citizenship. This further underscores that the USCIS guidance does not contemplate surrogacy arrangements and leaves critical questions unanswered.  8. Conclusion  Executive Order 14160 and the USCIS Implementation Plan represent a significant shift in the interpretation of birthright citizenship. However, both documents were drafted without apparent consideration of gestational surrogacy, a legally established and widely used family-building method in the United States.  The USCIS Implementation Plan does not define “mother” and does not address how its categories apply when the person who gives birth is not a legal or genetic parent.  For international intended parents, whether heterosexual couples, same-sex male couples, or single fathers, this silence is critical. It supports the argument that the Executive Order and USCIS guidance do not reach surrogacy cases and therefore cannot be used as a basis to deny U.S. citizenship to children born through such arrangements.  Until USCIS provides explicit guidance addressing surrogacy, intended parents have a strong legal argument that their children remain entitled to U.S. citizenship at birth. Because of that, children born in the United States through surrogacy to international intended parents occupy a legal space that the current guidance does not clearly reach and therefore, the USCIS Implementation Plan should not be used to deny U.S. citizenship to their children.  For more information on how the Trump presidency could affect IVF and surrogacy , please visit our related blog post.  Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help international intended parents secure pre-birth orders, navigate citizenship documentation, and protect their parental rights from the outset. If you are an international intended parent planning surrogacy in the United States, contact our team to schedule a consultation and ensure your family’s legal protection.  This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship with the reader.

What the PWFA Is and Why It Matters for Surrogacy The Pregnant Workers Fairness Act (PWFA) is a new law that was signed by President Biden last December 29, 2022 and into effect on June 27, 2023. This law requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” How does this employment law affect surrogacy in the United States? This law will provide employment protection to working gestational surrogates during their pregnancies or after giving birth who live in the twenty states that do not have pregnancy discrimination laws. Why the ADA Didn’t Fully Cover Pregnancy and Postpartum Needs While the Americans with Disabilities Act (ADA) requires employers to accommodate disabled workers, there are gaps in the ADA when it comes to pregnant and postpartum workers. The ADA does not define pregnancy as a disability and pregnant women must show they have a separate disability under the ADA before they can request and receive accommodations from their employer. Who the PWFA Protects and Which Employers Are Covered The new PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees and employment agencies. Examples of Reasonable Accommodations Under the PWFA In passing the law, Congress provided some examples of reasonable accommodations : the ability to sit, or drink water; have closer parking and flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; leave or time off to recover from childbirth; and being excused from strenuous activities and/or activities that involve exposure to substances not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer. Guidance from the EEOC provides that covered employers cannot: Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer; Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation; Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation; or Interfere with any individual’s rights under the PWFA. Conclusion: The PWFA protects pregnant women and women who have given birth by requiring reasonable accommodations. Working surrogates can request accommodations so that they can continue to work while pregnant and avoid dangers to their pregnancy. This is a win-win for surrogates and the intended parents who hope that the surrogate is not subject to dangers at work while also paying for lost wages for when a surrogate is taken off work by their doctor. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Posthumous reproduction uses a deceased person’s gametes (egg or sperm) and assisted reproductive technology to produce a child. In this article, we are going to breakdown the two types of posthumous reproduction. The first type of posthumous reproduction occurs when the deceased party passes down the gametes to another to have a baby. Just like people will plan for what happens to their possessions after their death, individuals who have retrieved and stored sperm, eggs or embryos can list their wishes with what happens to their stored gametes after they pass away. This can be done through a will or a testamentary document, or through the IVF clinic’s consent forms that stipulate the disposition of gametes and embryos after the death of one or both individuals who contributed the gametes. There are also cases where a party left instructions that his or her gametes should not be used after death, but in some circumstances , it may be the only chance of the surviving partner to have a child that is biologically related to the deceased partner. In cases like this, the expressed wishes of the deceased prevails over the survivor's interest in having a biologically related child. The American Society for Reproductive Medicine (ASRM) recommends that medical providers do not allow posthumous use of gametes if there is evidence the deceased party did not want it. What about situations where there is no explicit or written evidence of the wishes of the deceased regarding posthumous reproduction? In cases like this, providers must determine the desires of the decedent and first determine whether there is a clear record of the wishes of the deceased before complying with requests of the living to use the deceased’s frozen gametes or harvest gametes postmortem. The ASRM discourages posthumous assisted reproduction without clear evidence that it would be supported by the decedent’s wishes. The second type happens when the gametes are retrieved from the deceased after their death. In contrast to the first type where the gametes are already retrieved, the second type requires retrieving the gametes after the person's death, as the gametes were not stored prior to death. In some cases, the courts have allowed parents to retrieve gametes from their deceased children even without a will or advanced directive. Once the parents retrieve the gametes, they are free to use them as their own without any consent from the deceased. Here are two examples. In February 2019, a 21-year-old Westpoint cadet named Peter Zhu died following a skiing accident in New York. His parents told a court that they wanted to keep the possibility of using the sperm to eventually have children that would be genetically related to Peter. In their petition, Peter’s parents argued they were trying to uphold their son’s wishes, “to help Peter realize this dream of bringing a child into the world.” They argued because of China’s one-child policy, Peter ended up the only male in his family’s generation, meaning only he could “carry on our family’s lineage.” The court granted his parents’ petition because Peter had made statements that he wanted to have three children, and this showed “presumed intent" to have children. Peter’s sperm was retrieved from his body and stored at a sperm bank. In another case, a Texas probate judge granted the request of Nikolas Evans’ mother to harvest his sperm in 2009. Nikolas Evans had talked about how much he wanted to have a child, but the 21-year-old died after he was attacked trying to catch a bus ride home. Marissa Evans, the mother of Nikolas, had to go to court to get permission to harvest his sperm, and the judge granted her wish, ordering the county medical examiner's office to keep her son's body chilled and retrieval of his sperm. Marissa’s decision to seek a court order to preserve her son’s sperm attracted news coverage which she used to seek out surrogates around the world. When IVF treatments did not result in a live birth, she felt that she had let her son down even in death. Nikolas’s case is an example that a parent’s intentions to keep a child’s memory alive through posthumous reproduction may not be successful. Conclusion: According to the ASRM, posthumous gamete retrieval or use for reproductive purposes is ethically justifiable if the deceased has authorized the procedure in writing. Embryo use is also justifiable with such documentation. Courts have ruled more expansively. It is very important for a parent or partner to seek counseling prior to deciding on posthumous reproduction. Have questions about egg donation? Talk to a egg donation lawyer now by clicking this. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Recently, the 68-year-old Spanish celebrity spurred a debate in Spain after her picture carrying her surrogate-born baby came to light. Ana Obregón revealed contracting with a gestational surrogate in Miami to have a baby, but later announced in a magazine interview that the baby was the daughter of her son who died of cancer in 2020. Surrogacy in Spain is not legal. Obregón said that the doctors had encouraged her son, Aless Lequio García, to preserve samples of sperm before he began treatment and that he expressed a desire just before dying to have a child. The samples, she said, were stored in New York. Initial reports about the baby grabbed the attention of the Spanish media and the country’s political parties, sparking criticism which most of which are inaccurate views of surrogacy which do not apply to the United States with its surrogacy friendly laws and agency policies which protect surrogates. Debunking Surrogacy Misconceptions Equality minister Irene Montero called the practice “a form of violence against women.” False. Surrogates choose to be surrogates after a long process of psychological and medical screening and counseling. Surrogates have their own lawyer to ensure the surrogate understands and can negotiate their surrogacy arrangement. Montero pointed out a “clear poverty bias” concerning women who agree to become surrogates due to financial needs, Reuters reported. False. Surrogates in the United States should not be on any form of state welfare and should be financially self-sufficient without surrogacy. Surrogates declare in the contracts that they are not under economic duress. Socialist treasury minister María Jesús Montero described surrogacy as the “exploitation of a woman’s body.” False. Surrogacy is not exploitation of a woman's body. Thousands of American women successfully assisted others have families and it is not self-exploitation. Surrogates keep their careers, make important healthcare decisions affecting their health, and maintain their home and family life during the process. Conclusion It is important to seek out reliable sources of information and to fact-check any claims or information about surrogacy before accepting them as true. While surrogacy in third-world countries may not be free from exploitation, it is a far cry from surrogacy in the United States. Approaching surrogacy with empathy and understanding is also important as it is a personal decision that can be emotionally challenging for all parties involved. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Right after a successful surrogacy journey, intended parents can look forward to bringing home their newborn child. The first days at home are important for bonding between parent and child and intended parents deserve to take time off from work. But the question is, how does one get the time? If you are an intended parent, you might be wondering if you can get paid parental leave for your child born through surrogacy. If you are living in California, the answer is yes, parents of a child born by surrogate have the ability to take paid time off. In this article, we will be discussing some important information you need to know about the Paid Family Leave (PFL) in California. In California, to be eligible for PFL, parents must welcome a new child into the family in the past 12 months, must have earned at least $300 from which State Disability Insurance (SDI) deductions were withheld in the last 12 months, must be currently employed, and must have not taken more than eight weeks of PFL in the past 12 months. A claim for paid family leave may not be submitted earlier than the first day the family leave begins and no later than 41 days after the family leave began. Intended parents submit a Certification for Paid Family Leave (PFL) Benefits (Form DE 2501C) and proof of relationship on family bonding claims (e.g., a copy of the child’s birth certificate or a court judgment). The easiest way to have your claim processed is to submit your completed forms electronically in SDI Online as an attachment. To submit electronically, create an SDI Online account at the EDD website. Select New Claim from the menu, and select Submit Electronic Paid Family Leave Care Attachment. Once EDD determines eligibility, intended parents can receive benefit payments for up to eight weeks in a year. The leave does not need to be taken all at once, and it can be taken with employer paid sick leave, but the total payment is not to exceed 100% of your wages. PFL payments are about 60 to 70 percent of the average weekly wages earned five to 18 months before their claim start date. Conclusion Thirteen states including California currently have laws on the books granting paid family leave for bonding with a new child, whether the child is born from a surrogate pregnancy, is a placement due to adoption, or is the result of a natural birth. Are you embarking on a surrogacy journey and have questions for a lawyer? Please contact us and schedule a consultation. Update: as of 1/1/2025, California increased the amounts paid from 60-70% for disability and paid family leave to 90% for employees earning less than $63,000 and 70% for higher earners. Read our article here . This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Why SDI Matters in Surrogacy Contracts Pregnancy and childbirth can require a surrogate to take time off work, and that is why gestational surrogacy contracts provide for lost wages for the gestational carrier, so that she doesn’t suffer personal losses for undergoing the journey. Typically, lost wages under a surrogacy contract will up to extend 4-8 weeks beyond a birth. This can be very expensive for the intended parents, but fortunately in California (among a few other states ) provides state disability insurance (SDI) for qualified employees. What California SDI Is The SDI program provides partial wage replacement benefits to eligible California workers who are unable to work due to a non-work-related illness, injury, or pregnancy. SDI contributions are paid by California workers through employee payroll deductions. SDI Benefits for California Surrogates If you are planning to be a surrogate and are employed in California, you should learn about SDI benefits. SDI will pay about 60 to 70 percent (depending on income) of your average daily wage in the highest quarter 5 to 18 months before the claim start date. Further, surrogates can receive SDI for four weeks before delivery without any complications, or earlier if there are complications, and up to six weeks after delivery or 8 weeks after a delivery with complications or a c-section. To qualify, a surrogate must have earned at least $300 in wages that are subject to SDI deductions (“CASDI” on your paystubs) during the 12-month period prior to their claim. Where to Apply You can apply for benefits online at the website www.edd.ca.gov . Step 1: Gather Required Information The first step is to gather the required information. You must provide: a Valid California Driver License (CDL) or identification card number; your full legal name, date of birth and social security number; your current employer’s business name, phone number, and mailing address (as stated on your W-2 or paystub); the last date you worked your normal or usual duties (or the date you began working less than full or modified duty). Step 2: Create Your Online Account The second step is register and create an account. To register for SDI Online, you must create a Benefit Programs Online (BPO) Account through this link: https://portal.edd.ca.gov/WebApp/Registration. When you log in to BPO, select SDI Online. Then, you will be directed to your SDI Online Registration Options. Step 3: File Your Claim Online The third step is to file your claim online. To do this, you must log in to your BPO account, select SDI Online, select New Claim, select Disability Insurance and follow the steps in each section, submit the completed Part A – Claimant’s Statement, and copy and save your receipt number. You must provide this number to your licensed health professional. Step 4: Medical Certification The last step is to get your treating health professional to complete the Medical Certification. After your claim has been received, your licensed health professional can find your claim in SDI Online using your form receipt number. They must submit the certification no later than 30 days after your disability begins or you may lose your benefits. Processing Time and Payments It is recommended that you talk to your health professional about their process for submitting a DI claim. Your claim will not be processed until the state receives both your part and the medical certification. Do not submit the same claim more than once as this will delay your claim. Once your licensed health professional submits your medical certification to the government, you have successfully filed your DI claim. The California Employment Development Department (EDD) will contact you with the status of your claim, usually within 14 days. Your employer will be notified that you have submitted a DI claim. However, medical information is confidential and will not be shared with your employer. EDD will issue payments in one of two ways. Either electronic payment via a debit card; or an EDD check 7 to 10 days for delivery by mail. Payments will be retroactive to the eligibility date. How SDI Interacts With Surrogacy Contract Lost Wages A properly drafted surrogacy agreement will require a surrogate to apply for disability payments once they are eligible, and not doing so will be a breach of the agreement. Intended Parents will pay the difference in lost wages that are not covered by the Disability Insurance, so there is no loss to the surrogate for applying for disability benefits. Any payments already made by Intended Parents that end up covered by SDI will be credited to the Intended Parents. SDI Does Not Provide Job Protection Note that SDI does not provide any job protection, only monetary benefits; however, a surrogate’s leave during pregnancy may be protected through other federal or state laws such as the Family and Medical Leave Act (FMLA), the California Pregnancy Discrimination Act or the California Family Rights Act (CFRA). Note that you may collect SDI if you are using your paid vacation time, but not if you have fully paid sick leave. Conclusion: SDI is a benefit to surrogates that helps with the financial burdens of losing work due to work restrictions during pregnancy or after child birth. It is a huge benefit to intended parents by reducing their surrogate’s lost wages by up to 70% what they otherwise would have had to pay out. Working surrogates who live in states like California which pay disability benefits during pregnancy and child birth are attractive candidates to intended parents because state disability insurance reduces the cost of their journey, and being eligible for SDI might allow for a higher base compensation. California surrogates are eligible for benefits when they receive a doctor’s order and have been off work for at least seven days. If you have questions more questions about SDI, contact a surrogacy lawyer now. Update: as of 1/1/2025, California increased the amounts paid from 60-70% for disability and paid family leave to 90% for employees earning less than $63,000 and 70% for higher earners. Read our article here . This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

What FMLA Covers for Surrogates and Intended Parents The Family and Medical Leave Act (FMLA) is a federal law that was enacted in 1993 and provides eligible employees with up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons. This includes the birth of a child, adoption or foster care placement, or care for an immediate family member with a serious health condition. The FMLA protects employers with 50 or more employees and to employees who have worked for the employer for at least 12 months and for at least 1,250 hours in the previous 12 months.  How Leave Rights Can Differ by State A surrogate’s or intended parents’ rights to family and medical leave may differ depending on which state they reside. Some states have their own family and medical leave laws that provide additional protections and benefits. Currently in 13 states, surrogates who are employed might be eligible for paid disability leave for pregnancy or child birth, while in others, intended parents who are employed might be eligible for baby bonding time.   We will discuss the states that attorneys at Tsong Law Group are licensed in:  In California, employees are eligible for up to 12 weeks of paid family leave to bond with a new child, including a child born through surrogacy. In addition, California law provides for up to 4 weeks paid disability leave for employees who need time off to recover from a pregnancy-related condition and 6 weeks paid disability leave for a normal delivery and 8 weeks for a cesarian section birth. California also has a pregnancy disability leave act which runs with the 12 weeks of federal FMLA leave but applies covers more employees, since to small employers of five people and extends the time to 16 weeks.  In New York, employees are eligible for up to 12 weeks of paid family leave for the birth, adoption or foster care placement of a child, or for the care of a close relative with a serious health condition. New York also provides for paid pregnant disability benefits for up to four weeks before due date and six weeks after giving birth (eight weeks if delivered by c-section). Employees must have worked 26 weeks for the employer in the past year, at least 20 hours a week.  In Washington, employees may apply for paid medical leave for pregnancy or delivery, and family leave to bond with a new child. Paid leave is up to 16 weeks of combined medical and family leave. Additionally, those who experienced pregnancy-related complications such as prescribed bedrest or a c-section, may take an additional two weeks of medical leave for a total of 18 weeks. The doctor must make sure to mark the pregnancy complication checkbox in their Certification of Serious Health Condition form. Employees must have worked over 820 hours in the past year.  Other states we are licensed in, Illinois, Arizona and Oklahoma, currently do not have state specific laws for protected or paid leave beyond federal law.  Below is a 2024 updated map of the United States showing states with Paid Family Leave Laws from the Bipartisan Policy Center.   Conclusion  FMLA is an unpaid benefit that can be taken by both the surrogate and her intended parents. If available in their state, paid disability leave can be taken by the surrogate, and paid family leave can be taken by the intended parents. If you or another party live in a state we are licensed in and we represent you in a surrogacy matter, you can ask us about your state’s disability leave law. It’s an important right and benefit that should be considered at the contract stage of a surrogacy journey.   If you have questions about this law, don't hesitate to contact a surrogacy lawyer now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.