Typically, when a woman gives birth to a child, she is the legal mother. If she has a husband, he is the legal father. However, the situation changes when the woman is a surrogate for another couple.
Understanding parentage under California law is fundamental for intended parents and surrogates. Planning ahead to establish the legal parents of the child can prevent issues upon the birth of the child.
Step 1 Surrogacy agreement
A surrogacy agreement should outline the intentions and responsibilities of all parties. Individuals should complete this before the surrogacy journey begins. This agreement sets the stage for the legal recognition of parentage and ensures the rights of both the intended parents and the surrogate. It is important that the agreement complies with the requirements under California law, because if it does, the court will be able to use this as the basis for a ruling on legal parentage. Having an agreement is required under California law to establish parentage in a gestational surrogacy situation.
Step 2 File for a Pre-Birth Order Establishing Parent-Child Relationship
Once the surrogate is pregnant and completes her first trimester of the pregnancy the intended parents, surrogate, and their attorneys will start the process to establish the intended parent’s parental rights through a pre-birth order. The documents filed with the court establish that this is a surrogacy, California law was complied with in entering into the surrogacy agreement and that the intended parents are the legal parents of the child not the surrogate. The pre-birth order, once granted by the court, will show that the intended parents are the legal parents of the child and that their names will go directly on the child’s birth certificate.
Genetic testing
If there is any question about parentage, genetic testing may come into play. DNA testing can confirm the genetic relationship between the intended parents and the child. This scientific evidence serves as concrete proof of parentage and strengthens the legal foundation of the intended parents’ relationship with the child. Genetic testing may be required by the Intended Parents home country as well.
Open communication and mutual understanding among all parties are helpful in establishing parentage in California surrogacy arrangements. Clear and transparent communication fosters trust and cooperation, ensuring respect for the rights of both the intended parents and the surrogate throughout the surrogacy journey.