CALIFORNIA HEALTHCARE LAW

Originally published April 12, 2017. Updated November 2026.

By Matt Kinley, LL.M. in Healthcare Studies

This is the first of two articles for physicians about legal issues in caring for gestational carriers (often called surrogates) and the intended parents who work with them. This article covers the surrogacy agreement itself: what California law requires, what happens in court, and where the law is still unsettled. The companion article, “Doctors and the Surrogate Mother,” covers the clinical relationship.

Physicians aren’t parties to these agreements and shouldn’t advise patients about them. Still, the agreement’s terms and timing affect when a practice can start treatment, who may receive information, how bills get paid, and whose names go on the birth certificate. A basic working knowledge of the statute helps practices avoid avoidable problems.

The core rule

California Family Code section 7962 governs “assisted reproduction agreements for gestational carriers.” When the statute’s requirements are met and a court enters a judgment, that judgment establishes that the intended parent or parents are the child’s legal parents, and that “the surrogate, and the surrogate’s spouse or partner, is not a parent of, and has no parental rights or duties with respect to, the child or children.” (Fam. Code, §7962, subd. (f)(2).)

California has recognized gestational surrogacy for decades. In Johnson v. Calvert (1993) 5 Cal.4th 84, the California Supreme Court held that when genetics and gestation point to different women, the woman who intended to bring about the child’s birth and raise the child is the natural mother. Later decisions applied intent-based parentage even when neither intended parent is genetically related to the child. (See In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410.)

In 2012 the Legislature codified this framework. AB 1217 (Stats. 2012, ch. 466) added section 7962, effective January 1, 2013. (A correction to our 2017 article: section 7962 sits in Part 7 of Division 12 of the Family Code, next to California’s version of the Uniform Parentage Act at §§7600–7730. AB 1217 didn’t enact the UPA. It added the gestational-carrier rules.) The statute has been amended since then, most significantly by AB 2349 (Stats. 2016, ch. 385). Its latest amendment came in 2019 (Stats. 2019, ch. 115, AB 1817).

Who counts as a “gestational carrier”

Section 7960 defines two distinct kinds of surrogate:

• Gestational carrier: “a woman who is not an intended parent and who agrees to gestate a genetically unrelated embryo pursuant to an assisted reproduction agreement.” (Fam. Code, §7960, subd. (f)(2).)
• Traditional surrogate: a woman who gestates an embryo created with her own egg and the sperm of the intended father or a donor the intended parents arranged. (Fam. Code, §7960, subd. (f)(1).)

Section 7962 applies only to gestational carriers. That distinction is discussed below and is the most important point in this article.

What the agreement must contain

Under section 7962, subdivision (a), a gestational-carrier agreement “shall contain, but shall not be limited to,” all of the following:

1. The date the agreement was executed.
2. The persons from whom the gametes originated. If donated gametes are used, the agreement doesn’t have to name the donor, but it must say whether donated eggs, sperm, embryos, or all of them were used. (This replaced the earlier “unless anonymously donated” wording described in our 2017 article.)
3. The identity of the intended parent or parents.
4. A disclosure of how the intended parents will cover the medical expenses of the gestational carrier and the newborn or newborns. If health coverage will be used, the disclosure must review the policy provisions on surrogate pregnancy, including any possible liability of the carrier, third-party liability liens or other insurance, and any notice requirements that could affect coverage or the carrier’s liability. The statute says this review isn’t legal advice. If coverage is uncertain, a statement saying so is enough.

How the agreement must be executed

• Separate, independent lawyers. Before signing, the carrier and the intended parents must each be represented by “separate independent licensed attorneys of their choosing.” (§7962, subd. (b).)
• Notarized signatures. All parties sign, and the signatures are notarized or witnessed by an equivalent method of affirmation required where the agreement is signed. (§7962, subd. (c).)
• Signed before medical treatment starts. The parties may not undergo an embryo transfer, or commence injectable medication in preparation for an embryo transfer, until the agreement is fully executed with independent counsel and notarized signatures. (§7962, subd. (d).)

Practice point for physicians: Subdivision (d) is the requirement most likely to involve your office directly. The bar covers starting injectable medications to prepare the carrier for transfer, not just the transfer. Many fertility and OB practices now ask for written confirmation from counsel (often a short “clearance” letter) that the agreement is fully executed before ordering the carrier’s injectable protocol. Treating before execution doesn’t automatically defeat parentage, because a court can still find the intended parents are parents on sufficient proof (§7962, subd. (f)(2)). But it rebuts the presumption that the agreement is valid (§7962, subd. (i)) and invites a dispute that nobody, including the treating physician, wants.

The court process

Pre-birth filing and venue. An action to establish the intended parents’ parentage may be filed before birth. It may be filed in the county where the child is expected to be born, where the intended parents live, where the carrier lives, where the agreement was signed, or where the medical procedures are to be performed. (§7962, subd. (e).) A California court has jurisdiction if any party lived in California (now or when the agreement was signed), the IVF or embryo transfer took place in California, or the child is born in California. (§7620, subd. (b), added by AB 2349.)

What gets filed. A copy of the agreement is lodged with the court. The parties attest under penalty of perjury that they complied with section 7962, and the independent attorneys’ declarations are attached. Filing those declarations doesn’t waive attorney-client privilege. (§7962, subds. (e), (f)(1).)

Effect. A notarized agreement signed by all parties, with the attorney declarations attached and lodged with the court, rebuts the statutory presumptions that would otherwise make the carrier, or the carrier’s spouse or partner, a parent. (§7962, subd. (f)(1).) On petition, the court “shall issue a judgment or order” establishing the intended parents’ parentage and declaring that the carrier and the carrier’s spouse or partner are not parents. Under the current wording, the judgment “shall be issued forthwith and without further hearing or evidence,” unless the court or a party has “a good faith, reasonable belief” that the agreement or the attorney declarations weren’t executed as section 7962 requires. Any party may ask for a hearing. The judgment may be entered before or after birth, subject to Family Code section 7633. (§7962, subd. (f)(2).)

(Our 2017 article quoted earlier statutory language saying the judgment would “terminate” the surrogate’s parental rights. The current text instead declares that the surrogate and her spouse or partner aren’t parents. The practical result is similar, but the current wording reflects the idea that a properly executed gestational agreement means the carrier was never a legal parent in the first place.)

Presumptive validity. An agreement executed in compliance with section 7962 “is presumptively valid and shall not be rescinded or revoked without a court order.” Any failure to comply rebuts that presumption. (§7962, subd. (i).)

Confidentiality. The court file (petition, agreement, orders, and related papers) is generally not open to inspection except by the parties, their attorneys, and the State Department of Social Services, absent a judge’s written authorization in exceptional circumstances. On request, the clerk must redact information identifying the gestational carrier. (§7962, subds. (g), (h).)

Related protections added in 2018. California’s 2018 parentage modernization (AB 2684, Stats. 2018, ch. 876) added two protections. First, genetic testing generally can’t be used to challenge the parentage of a parent under section 7962, except to resolve whether the carrier is in fact a genetic parent (Fam. Code, §7551, subd. (b)(1)(B)). Second, a voluntary declaration of parentage, the form hospitals offer at birth, is void if the child already has a section 7962 parent other than the people signing it (Fam. Code, §7573.5, subd. (a)(4)). Both provisions remain in the current code, as amended in 2023 by AB 1650 (Stats. 2023, ch. 851). For hospitals and delivering physicians, this means a surrogacy birth should be documented through the court’s parentage judgment, not a bedside voluntary declaration.

The statute survived constitutional challenge

Shortly before our original article, the Court of Appeal rejected a gestational carrier’s constitutional challenges to section 7962 in a case involving triplets and a dispute over selective reduction. (C.M. v. M.C. (2017) 7 Cal.App.5th 1188.) The carrier’s parallel federal suit was later dismissed on issue-preclusion grounds. (Cook v. Harding (9th Cir. 2018) 879 F.3d 1035.) The companion article discusses the facts of that case from a physician’s perspective.

Who may be a carrier or intended parent, and who pays

Beyond the definition of a gestational carrier (no genetic relationship to the embryo, and not an intended parent), section 7962 sets no statutory qualifications for carriers or intended parents, such as age, income, or marital status. “Intended parent” means an individual, married or unmarried, who manifests the intent to be legally bound as a parent (§7960, subd. (c)). In practice, carrier screening standards come from professional guidance and clinic and agency policies, not the statute. For example, the American Society for Reproductive Medicine’s committee opinion, Recommendations for practices using gestational carriers (Fertil. Steril. 2022;118(1):65–74), covers medical, psychological, and infectious-disease screening.

The statute doesn’t require the intended parents to pay every cost. It requires that the agreement disclose how the carrier’s and newborn’s medical expenses will be covered (§7962, subd. (a)(4)).

The insurance landscape has changed: SB 729

The medical-expense disclosure in subdivision (a)(4) looks different in 2026 than it did in 2017. SB 729 (Menjivar, Stats. 2024) amended Health and Safety Code section 1374.55 (health care service plans) and Insurance Code section 10119.6 (health insurance policies) to require fully insured large-group health plans and policies to cover the diagnosis and treatment of infertility and fertility services. That includes up to three completed oocyte retrievals with unlimited embryo transfers under ASRM guidelines. Small-group plans and policies must offer the coverage. The original July 1, 2025 start date was pushed back (for health plans, by AB 116 (2025)), so the requirements now apply to plans and policies issued, amended, or renewed on or after January 1, 2026 (CalPERS contracts on July 1, 2027).

Points that matter for surrogacy:

• A plan may not exclude or deny fertility services “based on a covered individual’s participation in fertility services provided by or to a third party,” expressly including a gestational carrier or surrogate. (Health & Saf. Code, §1374.55, subd. (c)(2); Ins. Code, §10119.6, subd. (c)(2).)
• The Department of Managed Health Care’s All Plan Letter 25-021 (December 30, 2025, revised February 23, 2026 and October 5, 2026) gives DMHC-regulated, full-service commercial plans more detail. When an enrollee uses a surrogate, the enrollee’s plan must cover “medically necessary health testing of the surrogate” for each retrieval or embryo-creation attempt and each attempt to achieve a pregnancy, and it may not condition coverage for screening and evaluating a potential surrogate on the signing of an assisted reproduction agreement. The October 2026 revision, which takes effect for contracts issued, amended, or renewed on or after July 1, 2027, adds that services provided to an enrollee, donor, or surrogate under the APL must be covered by the enrollee’s plan regardless of the donor’s or surrogate’s own coverage.
• The same APL draws a line at the embryo transfer: the enrollee’s plan “shall not be responsible for health care costs of the surrogate after the embryo transfer procedure, including maternity services, except as required under the terms of the surrogate’s health plan contract.” In other words, SB 729 helps with the intended parents’ fertility treatment, but the carrier’s pregnancy and delivery care generally depend on her own coverage or another arrangement.
• SB 729 generally doesn’t reach self-funded (ERISA) employer plans. The DMHC letter applies to DMHC-regulated plans. For patients with Department of Insurance–regulated policies, check the insurer’s own policy terms and any Department of Insurance guidance rather than assuming the DMHC letter controls.

Practice point: OB and maternal-fetal medicine offices should verify, early and in writing, which plan or other source will pay for the carrier’s prenatal care, delivery, and any complications, and who pays for the newborn’s care. The agreement’s (a)(4) disclosure is a good starting point, but it isn’t a substitute for the practice’s own eligibility and benefits verification. Watch for surrogacy exclusions, third-party liability liens, and notice requirements in the carrier’s own policy.

FDA donor-eligibility rules can apply to the intended parents’ own gametes

Federal tissue rules exempt reproductive cells “donated by a sexually intimate partner of the recipient” from donor-eligibility screening and testing. (21 C.F.R. §1271.90(a)(2).) A gestational carrier isn’t the intended parents’ sexually intimate partner. So when the intended parents’ own eggs or sperm are used to create embryos for a carrier, the fertility program generally must handle donor-eligibility screening, testing, and labeling as if those gametes were donated. Gamete banks and fertility programs should also note the donor identity and medical-information rules for gametes collected on or after January 1, 2020 (Health & Saf. Code, §1644.1 et seq., added by AB 2684).

Traditional surrogacy: why adoption may still be needed

Section 7962’s streamlined process doesn’t apply to traditional surrogacy, where the woman who carries the pregnancy is also the genetic mother. California law on traditional surrogacy remains unsettled. The traditional surrogate may be treated as the child’s legal mother, and one or both intended parents may need to complete an adoption to secure their parentage.

The leading case is still In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218. Robert and Cynthia Moschetta arranged for Elvira Jordan to be inseminated with Robert’s sperm and carry the child. Under the arrangement, Elvira would let Robert have sole custody and would consent to Cynthia adopting the child. The Moschettas separated during the pregnancy, and Elvira initially decided to keep the baby. When the couple reconciled, she let the baby go home with them. Months later they separated for good, and Cynthia argued she was the legal mother based on the agreement and the time the child had lived with her. The Court of Appeal held that Johnson v. Calvert didn’t control, because Elvira was both the genetic and the gestational mother. Enforcing a pre-birth agreement to give up a child would conflict with California’s parentage and adoption policies. Elvira was the legal mother and Robert the legal father.

Later developments cut both ways. Family Code section 7630, subdivision (f), allows a party to an “assisted reproduction agreement” to bring an action “at any time to establish a parent and child relationship consistent with the intent expressed in that assisted reproduction agreement.” And section 7613 treats many egg and sperm donors as non-parents. But a traditional surrogate isn’t “providing ova for use in assisted reproduction by a person other than” herself in the usual donor sense, since she is the one conceiving. Section 7962’s protections, including the prohibition on using genetic testing to challenge parentage, are limited to gestational carriers. For these reasons, intended parents in a traditional surrogacy should expect their family-law counsel to consider adoption (for example, a stepparent or independent adoption), with the surrogate’s consents given only after birth as adoption law requires. They shouldn’t assume a pre-birth parentage judgment will be available.

Practice point: Physicians and fertility programs should know which kind of arrangement they’re treating. A clinic performing insemination of a woman who will carry the child for others is in traditional-surrogacy territory. The gestational-carrier rules, and the predictability they provide, don’t apply.

Beyond the statutory minimum

As our 2017 article noted, a well-drafted agreement goes well beyond the four required items. Common provisions include:

• How the carrier will care for herself during pregnancy (prenatal visits, medications, travel, activities, substances).
• The number of embryos to be transferred, and how a multiple pregnancy will be handled.
• Prenatal genetic screening and testing, and what happens after an abnormal result.
• Selective reduction and termination. California’s Constitution now expressly protects an individual’s “reproductive freedom in their most intimate decisions,” including the fundamental right to choose to have an abortion (Cal. Const., art. I, §1.1, added by Prop. 1, effective December 21, 2022). Whatever the agreement says, the pregnant patient makes her own medical decisions. In our view, clauses that purport to require or forbid termination are, at a minimum, of doubtful enforceability as to the procedure itself, though they may carry financial consequences.
• Who may receive the carrier’s medical information and attend appointments (see the HIPAA authorization discussion in the companion article).
• Delivery hospital, birth plan, post-birth contact, and the carrier’s conduct after birth.
• Life, disability, and health insurance for the carrier, and payment of complication-related costs.
• Escrow or trust arrangements for compensation and expenses (Fam. Code, §7961, requires a nonattorney surrogacy or donor facilitator to direct client funds into an independent, bonded escrow depository or an attorney trust account).
• Sex selection, where applicable.

Takeaways for physician practices

1. Confirm execution before starting the carrier’s injectables or transfer (§7962, subd. (d)). Get it in writing from counsel.
2. Know whether the arrangement is gestational or traditional. Only gestational arrangements get section 7962’s streamlined process.
3. Expect a parentage judgment, often pre-birth, and coordinate with the delivery hospital on birth registration. Voluntary declarations of parentage aren’t the right tool when the child has a section 7962 parent.
4. Verify coverage independently. SB 729 changed the intended parents’ fertility coverage, but the carrier’s maternity care usually still depends on her own coverage or another arrangement.
5. Don’t give legal advice. Refer questions about the agreement to the parties’ independent attorneys.

This article is general information about California law as of November 2026. It is not legal advice, doesn’t create an attorney-client relationship, and may not reflect later changes in the law. Results depend on the specific facts. Physicians and patients with questions about a particular arrangement should consult their own counsel.

Matt Kinley, LL.M. in Healthcare Studies, Kinley Law Practice, 180 E. Ocean Blvd., Ste. 100-J, Long Beach, CA 90802 · (562) 522-3563 · matt@kinleylawpractice.com