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Gestational Surrogacy in California

The US Surrogacy Law Map ™

Gestational Surrogacy in California

Gestational Surrogacy is permitted by statute, California Family Law Sections 7960 – 7962 (2013), with additional long-standing supporting case law: Johnson v. Calvert (1993), and Buzzanca v. Buzzanca (1998).

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Pre-birth Parentage Orders

Do courts grant pre-birth parentage orders? 

Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Married same-sex couple using an egg donor or sperm donor: Yes
  • Unmarried same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: Yes

Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Yes
  • Single parent: Yes

What are the bases for venue?

  • County of the child’s birthplace, county of the Intended Parent’s residence, county of the Gestational Surrogate’s residence, county where the surrogacy agreement was executed, or county where the medical procedures pursuant to the surrogacy agreement are performed.

Do results vary by venue? 

  • No, but there are procedural variations.

Are motions to waive venue accepted?

  • No

Is a hearing required to obtain a pre-birth order? 

  • It varies by county, but most counties do not require a hearing.

Is a pre-birth order possible in California based on a Gestational Carrier’s plan to deliver in California, if no party lives in California? 

  • Yes. Under CA Family Code, Section 7962(e), an action may be filed in (1) the county where the child is anticipated to be born, (2) the county where the intended parent or intended parents reside, (3) the county where the surrogate resides, (4) the county where the assisted reproduction agreement for gestational carriers is executed, or (5) the county where medical procedures pursuant to the agreement are to be performed.

Will California Vital Records honor a pre-birth order from another state? 

  • Yes

What is the typical time frame to obtain a birth certificate after delivery? 

  • Varies by county, but the typical time frame is 5-10 business days.

Same-Sex Couple

How are same-sex parents named on the final birth certificate? 

  • As of 1/1/16, parents can choose father, parent, or mother.

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? 

  • Yes

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? 

  • Yes

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in California (i.e., neither of the Intended Parents lives in California)?

  • Yes, but only if the Gestational Carrier lives in California.

Second Parent & Stepparent Adoptions for California Residents

Note: This situation typically arises if the child is born outside the state.  The parents then return to California to obtain a second parent adoption or stepparent adoption in California.

Will courts in California grant second parent adoptions or stepparent adoptions to heterosexual couples living in California?

  • Yes

Does the couple need to be married? 

  • Yes, the couple must either be married or registered domestic partners.

Will courts in California grant second parent adoptions or stepparent adoptions to same-sex couples living in California?

  • Yes

Does the couple need to be married? 

  • Yes, the couple must either be married or registered domestic partners.

Egg and Sperm Donation

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?

  • Yes. California Family Code 7613 specifies that a neither a sperm donor nor an egg donor is a parent when sperm or eggs are provided during as result of assisted conception.

If the statute only refers to sperm donors, is there case law interpreting this statute to provide the same protection in the egg donor context?

  • Yes, the court’s decision in Buzzanca v. Buzzanca (citation above) makes it clear that neither an egg donor nor a sperm donor are the legal parent.

Traditional Surrogacy in California

Traditional Surrogacy is permitted in California because no statute or published case law prohibits it. The Intended Parent may file a parentage order (pre- or post-birth), but it would be at the discretion of the court whether and when to grant it.

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State law information provided by the following attorneys practicing Reproductive Law in this state:

Other attorneys practicing Reproductive Law in this state:

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