Starting a family and raising children is a lifelong desire for many of us. Unfortunately, some individuals are not able to make these wishes come true on their own for different reasons, and that’s where artificial insemination could apply. When it concerns building a family, same-sex couples, single people, as well as heterosexual couples usually have to think about a range of different, non-traditional reproductive techniques. Fortunately, current medical advances have afforded significant alternatives to these intended parents, who would've previously had limited options.
However, before you begin, you need to understand the legal obligations and ramifications that come with surrogacy and artificial conception procedures. If you have any questions or require legal counsel, we invite you to contact the Los Angeles Divorce Lawyer today. We serve the Los Angeles region.
Artificial Conception Methods
Artificial conception is a broad term that encompasses a few of the most popular methods of conceiving a child when partners or individuals struggle with infertility issues or any other medical issues that end up making natural conception difficult.
Artificial insemination is often performed by a doctor, but in some cases, individuals can attempt it by themselves. Typically, this process entails a potential parent receiving sperm from a sperm donor or from their partner that has been implanted deliberately in the uterus, to enhance the likelihood of becoming pregnant. Artificial insemination is among the least expensive ways to conceive artificially
In vitro fertilization is a much more complicated and costly procedure. Here an egg is extracted from a donor or the other parent and fertilized outside the uterus with sperm from a donor or parent. Embryos are nurtured in a laboratory before being placed in the womb at an early developmental stage
What is Surrogacy?
Surrogacy is among one the types of assisted reproductive technique that has become increasingly popular. In a surrogacy contract, a surrogate commits to get pregnant and have a child/children for an individual or for partners who are in need. These are the intended parents. In most cases, a surrogacy agreement is signed by both the surrogate as well as the intended parents. In this document, the parties specify the conditions of the contract, which usually include the kind as well as the amount of payment, parental rights after birth as well as medical costs.
Surrogacy is categorized into two categories:
Traditional surrogacy — entails artificial insemination of the surrogate using either the donor or intended father's sperm, leading to a baby who is biologically related to both the surrogate and the donor or intended father.
A gestational surrogacy — involves the surrogate being impregnated using the In vitro procedure, where the intended parents' sperm and egg (which could also be obtained from donors) are joined, and the resultant embryo is put into a surrogate. In gestational surrogacy, the baby might or might not be biologically related to one or maybe both intended parents but isn't biologically related to the surrogate.
Surrogacy Laws Vary By State
States across the country have different surrogacy laws. One of the most common misconceptions among intended parents is the belief that they'll easily start their surrogacy process in their home state whenever they're set to start. This could apply to some people, particularly those who live in California. Sadly, gestational surrogacy arrangements are forbidden in some states, and the process can be more expensive to prepare for.
Concerning the way a particular state's laws address surrogacy contractual agreements, intended parents reviewing surrogacy regulations will become acquainted with jargon characterizing a state as being either "surrogacy or not surrogacy friendly." Some jurisdictions allow contracts to take effect, some allow contracts, but with certain restrictions (such as if the surrogate mother is to be paid); and certain states do not recognize — or they blatantly outlaw — surrogacy.
It is crucial for intended parents considering surrogacy to understand the third-party reproduction rules in their jurisdiction. It could be necessary for intended parents to cooperate with a surrogate mother who lives in another state if their state does not permit surrogacy. Since surrogacy could be illegal in their native country, most intended parents coming from countries outside the United States choose to engage with surrogates in states like California. As a result, they go to jurisdictions where using a surrogate is legal and acceptable.
California's Surrogacy Laws
California is regarded as one of the most surrogacy-friendly regions for the reasons mentioned below:
Intended parents in California can acquire their constitutional parental rights before their child or children are born without needing to go through the adoption process. Many other jurisdictions across the country have laws requiring the completion of adoption processes
In California, establishing legal parentage rights does not necessitate marriage between the intended parents
In California, intended LGBT parents can formally secure their parentage rights before their child is born
Despite being a surrogacy-friendly state, California does have the following requirements:
It is necessary that each of the parties involved, intending parents as well as a gestational surrogate, retain their defense counsel; this restricts the sharing of legal counsel between the parties
The surrogacy agreement needs to be certified, and it needs to be done before any medications are used to start assisted reproductive services like embryo transfer
Surrogacy Contracts in California
Among the key components of an effective surrogacy process is the surrogacy contract. These are founded on the participation of all stakeholders in communicating their demands, conditions, and rights. These agreements also need to be legally binding and approved by both parties.
This contract can offer a means for handling the legal as well as emotional concerns that can surface following the birth of the child.
What Information Should be in Your Surrogacy Contract?
A surrogacy contract must cover the following issues:
What the Source of the Gametes Were
The surrogacy agreement must, by law, specify where the gametes, that is the egg and sperm, came from. Therefore, the agreement with the surrogate should state whether donors are being used. However, merely stating that the sperm or eggs came from an anonymous donor is sufficient; no other details about the source are necessary.
What Services are Provided In Exchange For the Surrogate's Services, and How Much is this Compensation?
The specific compensation conditions should be laid out in the surrogacy agreement to prevent ambiguity or misinformation about fees. Generally, a surrogate is compensated a "base fee" for carrying a child throughout the pregnancy. Then she is likewise compensated for any invasive procedures, having to carry triplets or twins, travel costs, maternity clothing, loss of wages, attorney fees, breastfeeding, and so forth.
Who Will Manage the Escrow?
California law prohibits surrogacy organizations from keeping the money. Funds for surrogacy should be retained by a legal practitioner (who will do so in a state-registered trust account that's overseen by State Bar regulations) or a registered, bonded escrow agency.
This is done to prevent the intended parents as well as the surrogate from losing their money throughout the surrogacy procedure. Many lawyers for intended parents won't hold escrow since they feel there is a potential conflict of interest, but others will.
The intended parents' lawyer must be on hand to fight for them if there is a dispute between the intended parents and the surrogate mother regarding the payment of expenses or fees, which could be intrinsically at odds with the impartial duty of someone handling the money in a trustee role.
What Character is Anticipated For Surrogates and Intended Parents?
In general, a surrogacy agreement will outline the expected behavior of both the intended parents as well as the surrogate, such as compliance with every medical instruction, travel and nutritional restrictions while pregnant, arrangements for communication regarding the pregnancy or participation in prenatal appointments, who will be let in the delivery room, among others. What is the plan for selective reduction and how many embryos will be transferred?
The Surrogate and Intended Parents Must Agree On What Should Be Done in the Eventuality of Multiple Pregnancies
The intending parents should be paired with a surrogate mother who's capable of carrying triplets if they're certain that they won't deliberately decrease a triplet pregnancy except if there's a major medical problem that affects one of the babies or extending the pregnancy could be risky for the surrogate mother. However, intended parents who aren't ready to have more than one baby will be the ideal fit for a surrogate mother who is not willing to carry multiple pregnancies.
To match expectations and prevent a mismatch between the surrogate and intended parents, the contract must specify the approach for how many embryos can be deposited per cycle and also concerning a potential fetal reduction.
How will the Surrogate's Medical Expenses Be Covered?
A surrogacy agreement should specify how the surrogate's medical health is being compensated for (that is, what insurance plan will fund the pregnancy as well as the delivery, as well as who is going to pay the premiums), in addition to how the child's initial medical expenses will be protected.
What is the Method For Guaranteeing That the Intended Parents are Regarded As the Child's Legal Parents and That the Surrogate Is not Held Accountable in Any Way?
A surrogacy agreement should always state unequivocally that the intended parents will serve as the child's legal parents and also that the surrogate (as well as her partner, if she currently has one) won't. It should also accurately outline the procedure to be followed to ensure that the parentage is determined promptly and follows state statutes.
The exact method for handling this will differ based on the jurisdictions where the intended parents and surrogate reside because each jurisdiction follows its procedures and laws for asserting parental rights.
Legal Ramifications Following a Divorce
If the couple divorces, artificial conception presents challenges with embryo disposal and parentage. The typical problems include:
Disposal and use of embryos
Custody disputes can occur following artificial conception, particularly if one of the partners is the child's biological parent. The agreement made before the child was conceived could be used by the court during such scenarios. Adoption proceedings that might have occurred can also aid in determining custody.
The usage and disposal of embryos are problems that sometimes make divorce complicated. Embryos are considered the couple's joint property. If these parties can't agree on certain things, like:
If the embryo could be used by either side to have a child
If or not to discard the embryos
Which partner will be in charge of the children conceived from the embryos
If or not any of the parties change their minds regarding using or disposing of the embryos
The Role of the Contract in these Matters
Throughout many scenarios, the party that does not want to be a parent can be successful in getting the embryos discarded, — particularly when the other partner is capable of becoming a parent via other procedures other than the embryos. Before making a decision, the court may consider how much each party is interested in having children or not. In some circumstances, the health consent forms you filed at the moment of the process could be upheld by the court.
Frequently Asked Questions
The following are some of the most asked questions regarding artificial conception and surrogacy in California:
Are Heterosexual Married Couples the Only Ones Who Can Use Surrogates in California, or Is It Legal For Everybody?
Surrogacy is an equivalently legal and good alternative for single individuals, couples, both married and unmarried, as well as for gay and straight couples. The intended parent(s) must ensure they are supported by knowledgeable and competent legal practitioners who will pay attention to every detail throughout the procedures. All parties, including surrogate and intended parents, will be adequately safeguarded provided everything has been done properly.
My Partner and I are Considering Using a Surrogate to Have a Child. What Part Does an Attorney Play in Such a Procedure?
A lawyer plays two distinct roles throughout the surrogacy procedure:
The lawyer will prepare and bargain a binding agreement for both you as well as your surrogate
The lawyer will file a legal claim in court to prove that you're the parents of the child and the surrogate isn't
Additionally, a lawyer with expertise in artificial reproduction laws could help you determine the best insurance plan for your surrogate as well as the child and can aid you in resolving any problems that could arise between you throughout the pregnancy term.
Can One Attorney Represent My Surrogate and Me?
No, they can not. According to California laws (Assembly Bill 1217), for a surrogacy agreement to be enforceable, both the surrogate and the intended parents should each be represented by separate attorneys of their liking. The majority of agencies or fertility institutions will be capable of recommending skilled surrogacy lawyers for both you and the surrogate.
When Do We Become Legally Acknowledged As the Parents of a Child Carried By a Surrogate?
Provided you followed correct procedures and your baby was conceived in the state, you'll be capable of obtaining a judgment pronouncing you lawful parents before the birth of your child
It is ideal to allow yourself some time because it can take the court a month or even more to execute these actions. Pre-birth surrogacy rulings are typically granted by California courts on the papers, with no real court presence necessary, assuming the legal tasks are completed satisfactorily. The process is rather stress-free for the surrogate and intended parents because your attorneys will prepare all the paperwork for you.
To avert a legal dispute over prenatal medical decisions, it is vital to know that although many California courts commonly issue pre-birth judgments in surrogacy proceedings, the rulings do not take effect till the baby is delivered.
In light of this, your surrogate retains complete authority over her pregnancy care including medical decisions up until the time of birth, according to the provisions of the agreement between you and the surrogate.
What Happens If We Use a Surrogate From Another State?
If the child was conceived in California, the parentage of the child will be decided by California courts. Any baby conceived in the state of California, whether by sex or by artificial insemination, has the right to have its legal ancestry determined by California courts.
Consequently, you must ensure that their child is conceived in the state if you would wish California laws to apply even though you are utilizing out-of-state surrogacy. However, your baby's birth certificate should be provided by the area in which the child was born and certain states object to California courts ordering their vital information agencies what to state on the birth certificate.
As not all jurisdictions will provide birth certificates showing that a kid has 2 parents who are of similar sex, and this could be particularly challenging for homosexual couples who choose to have children via surrogacy. For such reasons, consulting a lawyer in the jurisdiction where your baby will be delivered is a wise idea, preferably before deciding to adopt a surrogate from out of state.
Find Legal Counsel for Artificial Conception and Surrogacy Near Me
Protecting the legal interests of the surrogates, donors, and intended parents is among one of the most neglected aspects of surrogacy. At the Los Angeles Divorce Lawyer, we can help and guide you through any legal issues that arise with artificial conception and surrogacy. Call our Los Angeles office today at 310-695-5212 to find out more.