Many people dream of having families and raising children. However, due to various reasons, some people are not able to get children through natural birth or adoption. Luckily, with the advancement in medical technology, those looking to get children can opt for surrogacy and artificial conception. At the San Diego Family Law Attorney, we understand that there are many legal questions involved in surrogacy contracts, and we are here to help you understand these issues to avoid legal disputes.
Overview of Surrogacy Law in California
Prospective parents who are looking for an alternative to natural birth can have a surrogate mother carry an implanted embryo. The prospective parents and the surrogate mother should understand the surrogacy law in California before getting into an agreement. Luckily, California is among the states in the country with the friendliest laws regarding surrogacy.
Where the contracting parents meet state requirements, the California family code provides that specific agreements can be enforced by the court. Although it might feel good to know that your contract is valid, the process of preparing the contract is not an easy one. It is because of this reason that you might want to retain the services of an experienced family law attorney. An attorney will not only provide legal guidance; he or she will ensure the agreement provides protection exceeding the one provided by the law.
Understanding Surrogacy Parenthood
Surrogate parenthood is when a woman decides to carry a pregnancy for somebody else. The other person whom the surrogate is carrying the child for becomes the lawful parent after birth. Women who are unable to give birth often employ surrogate mothers to carry a child through artificial insemination. Same-sex couples also hire surrogate mothers and fertilize them instead of having to adopt or foster children.
Once the child is born, the surrogate ceases to be the legal parent of the child. However, the biological father of the child will retain parental rights, but the non-biological parents will adopt the child.
Surrogacy can happen in two ways. The first way is gestation surrogacy, where the surrogate is implanted by the sperm from the father and egg from the woman. The procedure is usually complicated, costly, and time-consuming, but it allows parents to have a child with their genes. In gestation surrogacies, there are many procedural provisions and compulsory requirements. Under the California Family Code, both parties of the surrogacy agreement must be represented by an independent licensed attorney. Without evidence that both parties are represented by licensed attorneys, the court will declare the contract invalid and unenforceable.
The other form of surrogacy is the conventional one. Tradition surrogacy is the process where the surrogate is artificially fertilized by the sperm from the father. When this happens, the surrogate becomes the biological mother of the child. Although these types of agreements are allowed in California, the Family Code lacks the statutory provisions in terms of the requirement and enforceability of traditional surrogacies. Also, note that because as per the traditional way the surrogate is the biological parent, she can claim parental rights. When courts are deciding on traditional surrogacy agreements, they put the interests of the child to be born first, which involves invalidation of the contract.
Understanding Artificial Conception
Modern medicine has advanced a lot in recent days, enabling potential parents who cannot naturally conceive children conceive children artificially. The process involves the straight insertion of sperms in a woman’s womb. The sperm used in this procedure comes from the woman’s male companion unless he is infertile or in a same-sex marriage where there is no male partner.
Some of the things that could affect the success of artificial insemination include:
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Woman’s age
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Poor egg or sperm quality
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Severe endometritis
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Blockage or severe infection on the fallopian tube
The legal implications of artificial insemination are that the law presumes that a child born as a result of the process using the husband’s sperm will be presumed to be the husband’s child. If a third-party donor is used, the child will be presumed to belong to the mother and the husband legitimately. In other cases, the child will be considered illegitimate. California laws are not clear on this issue, so you should consult with your family law attorney first.
Experts can also opt for in vitro fertilization or egg transplantation as a process of artificial conception. In these processes, the egg is fertilized outside the womb. The process has many legal implications, especially when the egg is donated by another woman. The woman who carries the pregnancy and the husband becomes the legitimate parents. Concerns of parental rights might, however, arise in cases involving same-sex marriage.
Apart from the legal implications, IVF can have numerous challenges, including:
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Liability over the egg
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Inheritance rights over the egg
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Safekeeping over the egg
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Parental issues if the egg fertilized is from a donor
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Parental issues when the egg that is fertilized is transplanted in another woman other than the donor.
Reasons Why you Need a Surrogacy Lawyer
Prospective parents who cannot conceive or carry a child rely on surrogacy as a solution to having children. In vitro fertilization is one of the reproductive technologies that has made it possible to create and implant an embryo for pregnancy. The surrogate mother agrees through a contract to carry or conceive a child for another person or couple. You will need a surrogacy attorney because of the complexity of laws that govern the process. Some of the reasons you will need an attorney include:
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Your Child
The surrogacy attorney’s main objective is to assist couples who can’t conceive to get a child or children. With one of these legal practitioners by your side, you increase the possibility of having a child.
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Preparing the Contract
As mentioned earlier, the two parties involved in this process must draft a contract. The agreement then goes to court for validation. The court will then evaluate the contract in terms of validity and enforceability before approving or declining it. With a surrogacy attorney, you are sure that they will prepare an enforceable and valid agreement, one that contains issues and contingencies that could arise before, during, and after pregnancy.
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Dispute Resolution
Often, the surrogate mother and the couple or individual who wants a child might have some disagreements, especially at the time of pregnancy. With an attorney, disagreements or conflicts can be quickly resolved.
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Relationship Management
When entering into a surrogacy agreement, it’s essential to define the boundaries or the kind of relationship you will have with the surrogate. Some couples or persons will prefer to have the surrogate live with them or close enough so that they can maintain contact during pregnancy. When deciding on the degree of contact or kind of relationship you want to have with the surrogate, a surrogacy attorney will come in handy.
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Money
Surrogate mothers usually agree to carry a child to term for a particular fee. Once you have spotted the right candidate, it’s advisable to let your attorney negotiate the money. Surrogacy attorneys are used to such negotiations and often know the customary charges. Also, because they are not desperate to enter into an agreement, they will not feel the pressure to agree to a sum of money that isn’t reasonable.
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Screening
When looking for a surrogate, you want someone with a clean bill of health both physically and psychologically. An attorney who has been in this industry for long has already established a network with medical professionals, which means he or she has the right people to conduct the medical and psychological examination on the surrogate to determine if she is suitable or not.
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Contacts
Most of the couples or individuals who want to go the surrogacy way don’t know how to accelerate the process of locating a surrogate or where to find one. An experienced attorney, on the other hand, has the contacts and network to ease the process of finding a surrogate.
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Experience
The other reason why you should work with a surrogacy attorney is that they do this every day. They can easily give a timeline for the process, the cost, and the challenges that you are likely to encounter before the process commences, thus avoiding surprises.
Surrogacy and artificial conceptions laws keep changing. It is, for this reason, you will need an attorney by your side, especially during the drafting of the contract.
Surrogacy Contract
Remember, as said earlier, not all surrogacy contracts are valid and enforceable by the court. It means that you have to invest your time and resources in getting an attorney you can work closely with during the drafting of an agreement to ensure the final copy reflects your wishes and provides protection above the law. The couples and the surrogate must have independent licensed attorneys to prevent future conflicts and ensure the interests of all parties are protected. When thinking about the terms to include in a surrogacy contract, you should ensure it contains the following things:
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Date of the contract
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Names of the prospective parents and the surrogate
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A statement indicating all parties are 18 years or older
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A report that the mother is unable to conceive or carry a child
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An agreement by the surrogate to submit a medical and psychological test
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Information about the medical coverage of the surrogate and a contract to keep the current coverage in effect
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A contract between the prospective parents and the surrogate, that artificial conception, and implantation of the fertilized embryo will be made in the surrogate’s uterus
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An arrangement on the maximum number of times the surrogate should attempt to achieve pregnancy
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A pact that the surrogate will not engage in sexual intercourse during the period of trying to get pregnant
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An arrangement that the surrogate will not try to terminate the pregnancy unless her life is on the line
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An agreement with the surrogate mother that she will not engage in smoking, drinking, or using controlled substances during pregnancy
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A promise by the surrogate to regularly go for prenatal medical care whether the prospective parents are present or not
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An agreement that the surrogate mother will take any medical tests if requested by the prospective parents.
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An arrangement on a diet the surrogate should stick to at the time of pregnancy
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An arrangement about the activities the surrogate should refrain from
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A pact that the prospective parents may or may not be present at the time of conceiving
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An agreement that the surrogate mother or male partner will not claim physical or legal custody over the child born out of surrogacy.
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An agreement by both parties that the surrogate will lose parental rights over the child upon birth
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An arrangement that it will be in the child’s best interest to have the prospective parents raise him or her
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A pact that after birth, the prospective parents will assume the legal custody of the child
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A pact on financial terms of the contract
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An arrangement in case the contract fails
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Confidentiality arrangement
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Signatures
Couples struggling with infertility find a solution in surrogacy. However, it is vital to understand the contractual or legal obligations of the process before committing to it. Make sure you have a family law attorney by your side when drafting the contract to ensure you understand your obligations and those of the other party.
Choosing a Surrogate Mother
The decision on the surrogate to employ is not an easy task because of the emotional and legal implications. For this reason, it’s wise to take your time and interview each of the prospective candidates. Some of the factors you might want to consider during interrogation include:
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The physical health of the surrogate
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Genetics
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Support network
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The emotional well-being of the surrogate
Also, you might want to consider the amount of money the surrogate is demanding, medical, and legal costs before deciding. During the interview, you might want to get the contact information of the prospective surrogate, what they do for a living, level of education, marital status, and age. Additionally, you should inquire about why the person wants to be a surrogate.
You should also inquire about health problems the parents of the surrogate might have or whether or not the surrogate has suffered mental or sexually transmitted illnesses in the past. Do not forget to inquire if the prospective candidate gets healthy pregnancies or not. Have your family law attorney draft a questionnaire for all the candidates you interview. The responses you get from the questionnaires should help you pick the right candidate.
Child Custody and Visitation Rights for Married Fathers
Getting custody or visitation rights to a child that is not legally yours is an uphill task. Cases of fathers impregnating women they are not married to are common. Biological parents have parental rights over a child, which means they are entitled to child custody or visitation regardless of whether they were married or not. When deciding whether to allow visitation or custody, the court considers what is best for the child.
Unmarried fathers will need to draft a parenting agreement with the other parent of the child. The father of who was not married to the mother at the time the child was born must first establish paternity. This can be done during or after birth by both parents filing and signing an acknowledgment of paternity in court or with the relevant government agency. If there is a dispute on paternity, a DNA test can be conducted and the decision on whether you are the biological parent or the child or not made by the court based on the results. Once you have established paternity, you can begin the process of claiming custody or visitation.
The mother of the child and the biological father can begin to negotiate a parenting plan. In the agreement, they agree on these details:
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The parent who will have primary custody
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Details of visitation by the other parent
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Specifics on the parent who will make critical decisions like education, religion, or health care of the child
Particular aspects like drug or alcohol use and history child abuse might affect your visitation rights as an unmarried father of a child.
If both parties fail to agree on visitation, either of them can move to court. But if they come up with a parenting agreement, they will need to submit it to court for approval. The court then gives an order on visitation and custody, permitting either of the parents to enforce their parental rights.
Where there is no agreement between the parties involved, either party can petition the court to grant their request. The decision of the court in contested hearings depends on the best interests of the child. Usually, courts deduce that the best thing for the child is to have both parents involved in his or her upbringing. However, this presumption by the court can be overcome if the other parent proves that custody or visitation to the unmarried father might harm the child.
Note that although courts recognize custody and visitation rights of unmarried fathers, a father will rarely win a sole custody case for a child being raised by the biological mother. However, it is possible if the father proves that he is the primary caregiver or that the mother is unfit to raise the child.
Consult a San Diego Family Law Lawyer Near Me
If you have been struggling with infertility or are unable to give birth or carry a child naturally and you are thinking of surrogacy and artificial conception, reach out to San Diego Family Law Attorney at 619-610-7425. We will advise you on the legal issues involved, including drafting contracts so that you can avoid legal battles in the future.
