A Look at Surrogacy Laws Around the World PART 3 – CALIFORNIA
By Melissa Salfi, Senior BC Family & Fertility Lawyer
Our series about the intricate world of surrogacy began with an exploration of how these laws significantly vary across different jurisdictions. In our second installment, we considered commercial surrogacy (also known as compensated surrogacy), examining the legal landscape in the Ukraine. Now, we turn our attention closer to home to explore commercial surrogacy in the United States, spotlighting California’s unique surrogacy laws and practices.
Surrogacy in the United States is regulated at the state level, leading to a diverse legal landscape. States are often broadly referred to as either 'surrogacy-friendly' or not, based on their legal stance towards different types of surrogacy arrangements. While some states exclusively permit altruistic surrogacy, others permit both altruistic and compensated surrogacy arrangements. Additionally, certain states impose restrictions, limiting surrogacy to specific groups, such as married heterosexual couples using their own sperm and eggs (commonly referred to as “gametes”).
California is a notable example in the complex world of surrogacy laws. Recognized as one of the most surrogacy-friendly jurisdictions globally, it presents a compelling case study. This blog will closely examine the Golden State's approach to surrogacy, particularly its embrace and regulation of commercial surrogacy. We aim to shed light on why California’s laws are both widely acclaimed and subject to debate, providing insights into how they compare and contrast with broader U.S. surrogacy regulations.
Surrogacy Eligibility in California – An Inclusive Approach
California is a well-known leader in assisted reproductive technology (ART) and home to many state-of-the-art research institutions and fertility clinics that attract individuals from around the world. Often praised for its progressive approach to surrogacy, California boasts inclusive eligibility criteria and comprehensive legal protections for surrogates and intended parents.
To participate in a surrogacy arrangement in California, certain requirements must be met. Intended parents can be single individuals, couples, or same-sex couples. Unlike in some other jurisdictions, California does not discriminate based on the intended parent(s) sexual orientation, gender identity, or marital status. This inclusive approach has made California a popular destination for individuals and couples who want to build their family through surrogacy, including members of the LGBTQ2S+ community. Surrogates must also undergo physical and psychological screening by the fertility clinic to ensure they are suitable candidates for this challenging and life-changing process.
Gestational vs. Traditional Surrogacy
In California, both gestational surrogacy and traditional surrogacy arrangements are legally recognized.
In a gestational surrogacy arrangement, the surrogate does not have a genetic connection to the child she is carrying. Either the intended mother’s egg or a donor’s egg is fertilized with the intended father’s sperm or donor sperm in a laboratory setting via in vitro fertilization (IVF). Thereafter, the embryo is transferred to the surrogate’s uterus.
In a traditional surrogacy arrangement, the surrogate is genetically related to the child she is carrying for the intended parent(s) and donates her own eggs. While legal in California, traditional surrogacy arrangements carry more risks and raise more complex legal, moral, and psychological considerations due to the biological connection between the surrogate and the child.
California's surrogacy laws are often praised for offering comprehensive legal protections for all parties involved. Intended parents can obtain pre-birth orders, which recognize their legal parentage before the child is born. For gestational surrogacy arrangements, the intended parents' names can appear on the birth certificate immediately upon the child's birth. This gives intended parents the much-desired assurance that their parental rights will be recognized from the outset without having to face any uncertainty or complications post birth. It also streamlines the process and eliminates the need to apply to the court post birth for a declaration of parentage or adoption.
The Legalization of Commercial Surrogacy
Prior to 2013, only altruistic surrogacy arrangements were legal in California. Altruistic surrogacy refers to a type of surrogacy arrangement where a woman (i.e. the surrogate) willingly carries a pregnancy on behalf of another person or couple (i.e. the intended parent or parents) without receiving any financial compensation beyond the reimbursement of her expenses. In 2013, Assembly Bill 1217 was signed into law, effectively legalizing commercial surrogacy. Commercial or compensated surrogacy involves financially compensating the surrogate for acting as a surrogate (ie. the service she is providing), in addition to reimbursing her for any expenses related to the surrogacy. While the purpose is to recognize surrogacy as a significant undertaking that should be compensated, opponents to commercial surrogacy argue that there are serious ethical concerns with commercial surrogacy, including the risk of exploiting disadvantaged women, the commodification of women’s bodies and human life, and balancing the rights of children with those of the intended parents. There is also an argument that commercial surrogacy is only accessible to affluent individuals, which may result in a power imbalance between the surrogate and intended parent(s).
While California has an inclusive approach, for many it is unaffordable. Since surrogates in California are in very high demand, the prices are much higher than in most other jurisdictions. Generally, in Southern California, the total surrogacy expenses – encompassing surrogate compensation, agency fees, and legal fees – can average between $190,000 to $230,000 USD. In contrast, surrogacy costs in other countries like the Ukraine are considerably lower, often around $50,000 USD, reflecting a different economic context and market demand.
While critics continue to raise serious concerns, commercial surrogacy remains popular in the United States and is becoming more widespread as states continue to legalize it. Since 2020, 16 states and the District of Columbia passed legislation allowing compensated gestational surrogacy. For instance, in February 2021, the Child-Parent Security Act (CPSA) legalized compensated gestational surrogacy in the state of New York. Notably, this legalization took place after almost a decade long battle, which demonstrates the level of contention involved in these debates.
If you are interested in learning more about surrogacy, set up a free consultation with one of the fertility lawyers at Crossroads Law today. Our lawyers are here to help guide you through the process of growing your family.