This is a two part series for physicians on some of the issues that arise with the medical treatment of surrogate mothers. This first article deals with the surrogacy contract.
California Family Code Section 7962 provides:
“The surrogate, her spouse, or partner is not a parent of, and has no parental rights or duties with respect to, the child or children.”
Adding an additional layer to the twenty-first century notion of the family, several children are born not from their mother, but from a third party surrogate. In California, couples seeking children with some genetic connection may use these contracts to pay a surrogate mother to carry the baby through pregnancy.
What is required for a legal contract? The California Supreme Court, in the 1993 decision of Johnson v. Calvert, held that such arrangements are permissible and that the intended mother — and not the surrogate — should be deemed a child’s mother. As of January 1, 2013, California law (AB1217) added to the Family Code the Uniform Parentage Act, cited as Family Code section 7962, which codified California’s acceptance of such contracts.
Physicians, particularly obstetricians, dealing with surrogacy pregnancies have unique legal and practical issues to face when dealing with the relationships between the intended parents and the gestational mother. These relationships are governed by a contract which is defined by the Uniform Parentage Act. Presenting a valid surrogacy agreement to the court rebuts any presumptions that the surrogate and her spouse are the legal parents of the child or children.
For a surrogacy contract to be valid under the statute, the contract must have the following information:
1. The date the contract was executed;
2. The names of the persons from which the gametes [ova and sperm] originated, unless anonymously donated;
3. The name(s) of the intended parent(s); and
4. A disclosure of how the medical expenses of the surrogate and the pregnancy will be handled, including a review of applicable health insurance coverage and what liabilities, if any, that may fall on the surrogate.
Additional requirements are that the agreement must be entered into before any embryo transfer begins; both the intended parent(s) and the surrogate must be represented by separate, independent counsel before executing the agreement; and the agreement must be signed and notarized.
The statute also establishes that, upon proof of a valid surrogacy agreement, the court will terminate the parental rights of the surrogate and her spouse “without further hearing or evidence, unless the court or a party to the assisted reproduction agreement for gestational carriers has a good faith, reasonable belief” that the agreement or accompanying attorney declarations were not executed in accordance with § 7962. Surrogacy contracts will be deemed “presumptively valid” and cannot be rescinded or revoked without a court order.
The statute places no conditions on who can serve as a surrogate (beyond requiring that she not be genetically related to the fetuses) or who may solicit the services of a gestational carrier. No minimum levels of income, intelligence, age, or ability are required for either the surrogate or the intended parent(s).) The statute does not require that the intended parents shoulder all costs associated with surrogacy, and only states that the financial accommodations necessary for the arrangement are to be detailed in the surrogacy contract.
Note that these principles do not apply to “traditional surrogacy.” In a traditional surrogacy, the woman carrying the child is also the genetic mother – as a general rule, she conceives through artificial insemination with the intended father’s sperm, but using her own egg. The law on traditional surrogacy in California remains very unclear, and it is possible that the “traditional surrogate” will be the legal mother and that one or both of the intended parents will end up having to adopt the child.
This is demonstrated in the case of In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218. In that case, Robert Moschetta and Cynthia Moschetta wanted to have a child. Cynthia was sterile. Elvira Jordan agreed to be inseminated with Robert’s sperm, and to carry the baby to term for them. Pursuant to the agreement, Elvira was to allow Robert sole custody, and was to consent to adoption of the child by Cynthia. However, when the Moschettas broke up during her pregnancy, Elvira decided to keep the baby, although when the couple reconciled she relented and allowed the baby to go home with them. Seven months later, the Moschetta’s broke up for good. Cynthia petitioned the court, arguing that Cynthia was the baby’s legal mother, not Elvira, based on the terms of the surrogacy contract and the fact that the baby had lived with Cynthia for most of its short life. In this case, the court held the Johnson v. Calvert did not apply, since Elvira was both the genetic and the gestational mother. Enforcing a prebirth contract to give up one’s baby would go against the public policies relating to parentage and adoption. Legally, Elvira was the mother and Robert was the father.
Finally, additional to as what is required, the agreement should deal with issues such as an agreement as to how the gestational mother will care for herself during the pregnancy, issues related to how the a pregnancy with multiple embryos will be dealt with, genetic testing and consequences as to deal with negative genetic tests, the sex of the child, and the surrogate mother’s conduct after birth.
By Matt Kinley, Esq., founder Kinley Law Practice.