Surrogacy in California: A Legal Guide

As surrogacy services are not permitted in Germany, many parents who wish to have children are looking abroad. California is a popular choice because, in contrast to European countries, the country is much more liberal in its legal regulations and, unlike South American countries, has a set of rules which ensures safety and, thus, a smooth process. In principle, of course, different regulations apply in the USA depending on the state. Even though federal laws in the USA apply to the individual states, the states are also independent in their regulations regarding surrogacy, resulting in legal differences between the individual states.

When it comes to surrogacy, California offers the major advantage that surrogacy agreements are recognised by the courts. This plays an important role because, according to German Family Law (Section 108 FamFG), foreign judgments shall be recognised without the requirement of a particular proceeding. Furthermore, under Californian law – and in contrast to many other countries – the surrogate mother is not entitled to keep the child after the birth and the intended parents can even strengthen their parental rights before the birth by filing a prenatal parentage order. A prenatal parentage order can already be filed during the pregnancy of the surrogate mother, and it guarantees that the child is legally assigned to the intended parents, and the surrogate mother will not even be listed as the birth mother. A genetic relationship between the intended parents and the child is not a prerequisite for the prenatal order. It is also possible if both the sperm and the egg come from donors. The entry of the intended parents in the birth certificate (without naming the surrogate mother) is an important legal safeguard for the intended parents, as it minimises potential uncertainties in connection with parenthood. With appropriate justification in the operative part, this can also be recognised by a German court in accordance with Section 108 FamFG. If the intended parents are recognised as parents by a court decision, they are spared the lengthy adoption procedure, in which the mother often has to adopt the child from the father because surrogacy in Germany is not recognised.

However, in the case of subsequent certification in Germany, it is to be expected that the surrogate mother will be entered again on the birth certificate, as sentenced in the German ruling  Beschluss des XII. Zivilsenats vom 20.3.2019 – XII ZB 530/17 – . However, this does not necessarily have to happen. In the past, there have also been judgments in which parenthood was established by a ruling in Mexico, where the surrogacy was carried out and recognised accordingly in Germany.

It is important to recognise that each case is assessed individually and that different factors lead to different results. If the legal parenthood of the intended parents is not established via foreign judgment, the intended parents need to resort to the abovementioned adoption procedure in Germany to be legally assigned as the parents of the child.

Californian Family Law does not only govern the eligibility of the intended parents but also of the surrogate mother. The state offers regulations that provide a liberal and safe framework for surrogacy.

Anyone wishing to have a child through surrogacy is subject to restrictive conditions, at least in Europe. It is legalised in Greece, for example, but here it is limited to exclusively altruistic surrogacy. Even this may only be used by heterosexual couples or single women. In Ukraine, commercial surrogacy is recognised as a service, but here, too, only heterosexual couples are allowed to use the service.

In contrast to that, California allows surrogacy for everybody. The state does not differentiate between the sexual orientation or family form of the intended parents. In principle, anyone can have a child through surrogacy. This means that Californian Family Law does not differentiate between single people, homosexual and heterosexual couples or non-binary couples. The fact that egg donation is also permitted in California means that surrogacy is also possible for women who do not have any usable eggs of their own.

In California, only women aged 21 and over who have already given birth to at least one child themselves are eligible as surrogate mothers. The surrogate mother must have US citizenship or at least a permanent residence permit. The ability to become a surrogate mother is tested through medical and psychological examinations.

Surrogacy is offered via agencies. Before the fertilised egg is implanted in the surrogate mother, contracts are concluded with the agency and the surrogate mother to provide legal protection. These contracts regulate the legal parenthood of the intended parents and include a cancellation of the surrogate mother’s maternity. If egg or sperm donations are used for surrogate motherhood, these details are also contractually regulated.

Schlun & Elseven supports their clients in finding the fitting agency, helps draft pre-parental agreements and takes care of other legal issues that might arise along the way.