What are the laws and regulations regarding surrogacy in California, USA?
1、 Legal Framework and Core Provisions
California (hereinafter referred to as "California") is one of the states with the most comprehensive surrogacy legal system in the United States, and its regulations are mainly reflected in the California Family Code, with core provisions including:
Legitimacy of surrogacy agreement
According to AB-1217, California explicitly recognizes the legality of gestational surrogacy, allowing married and unmarried heterosexual, homosexual partners, and single individuals to fulfill their reproductive needs through surrogacy. The surrogacy agreement must meet the following requirements:
Written form: The agreement must be drafted and notarized by a lawyer, and specify terms such as medical expenses, compensation for surrogate mothers, and transfer of custody.
Third party custody: Funds need to be managed through independent third-party institutions to ensure financial transparency.
Prebirth Order: Entrusting parents can apply to the court to confirm the parent-child relationship from the fourth month of pregnancy of the surrogate mother, and the child can obtain legal parental status after birth.
Prohibition of traditional surrogacy
California only allows surrogacy, meaning that the surrogate mother is not genetically related to the child. Traditional surrogacy (using the surrogate mother's own eggs) is not legally recognized in California due to ethical disputes.
Identification of parent-child relationship
Gene priority principle: If eggs/sperm from the commissioning party or donor are used, the gene provider is automatically recognized as a legal parent.
Childbirth theory: Surrogacy mothers only bear the obligation of childbirth and do not enjoy parental rights. The court has clarified through Article 7962 of the Family Code that when a surrogacy agreement is valid, the surrogate mother has no right to claim custody.
2.Legal Practice and Case Analysis
Typical Cases
Mr. CM v. Ms. Cook (2016): The court ruled based on Article 7962 of the Family Code that the surrogacy agreement is valid and entrusted the parents to obtain custody of the child. This case strengthens the enforceability of the surrogacy agreement.
Italian citizen overseas surrogacy case (2024): Despite Italy's ban on surrogacy, its citizens who give birth through legal surrogacy in California have their children's nationality recognized by the United States, highlighting the international effectiveness of California law.
Costs and processes
Total cost: Approximately 190000 to 230000 US dollars, including medical expenses (80000 to 100000 US dollars), surrogate mother compensation (30000 to 50000 US dollars), legal fees (20000 to 30000 US dollars), and intermediary service fees.
Process: Medical consultation → Matching surrogate mother → Signing agreement → Embryo transfer → Pre birth instruction application → Transfer of guardianship.
3. Comparison with other states
4. Ethical controversies and social impacts
Protection of Women's Rights
California requires surrogate mothers to undergo medical and psychological screening to ensure their autonomy in decision-making and prohibits forced surrogacy.
Surrogacy mothers can receive reasonable compensation (covering medical expenses and lost wages), but for-profit transactions are prohibited.
Protection of Children's Rights and Interests
Pre birth instructions ensure clear legal identity of children and avoid custody disputes.
It is prohibited to circumvent the family planning policy through surrogacy (such as Chinese clients being required to comply with Chinese laws).
Cross border surrogacy challenge
Citizens of Italy, France, and other countries who engage in surrogacy in California may face legal consequences in their own countries (such as a maximum sentence of 2 years in prison in Italy).
California institutions advise clients to consult international legal experts in advance to avoid conflicts of nationality and guardianship.
5. Future Trends and Suggestions
Legal improvement direction
Promote unified legislation at the federal level to resolve interstate legal conflicts.
Strengthen mental health support for surrogate mothers and establish a long-term tracking mechanism.
Practical suggestions
Client: Choose a licensed intermediary in California to ensure that the agreement complies with the Family Code and AB series laws.
Surrogacy mother: Review the agreement through a lawyer to clarify compensation terms and medical insurance.
Cross border clients: consult legal experts from both countries to plan nationality and custody issues in advance.
6. Conclusion
The California surrogacy legal system is centered around "genetic priority+agreement enforcement", balancing reproductive needs and ethical bottom lines. Its open attitude has attracted global customers, but it also faces challenges such as international legal coordination and balancing women's rights. In the future, California may need to play a greater role in federal legislation and cross-border collaboration to improve global surrogacy governance.
