Surrogacy in California: A Legal Guide

Surrogacy in California works on the basis of a written gestational carrier agreement and a court judgment that makes the intended parents the child’s legal parents, often before the birth. These detailed statutory rules make California one of the most popular destinations for intended parents from Germany, where surrogacy is not permitted. In the United States, surrogacy is regulated by each state rather than at the federal level, so the rules differ considerably from one state to the next.

Where the agreement meets the statutory requirements, a California court issues a judgment establishing the intended parents as the child’s legal parents and confirming that the surrogate mother, and her spouse or partner, have no parental rights (Section 7962(f)(2) of the California Family Code). The surrogate mother therefore has no right to keep the child after the birth. The judgment can be issued while the pregnancy is still ongoing, which is why it is often called a pre-birth order. A pre-birth order does not require either intended parent to be genetically related to the child: it is available even where both the egg and the sperm come from donors.

This is where California and German law part ways.

A California judgment does not automatically make you the child’s legal parents in Germany. This matters if at least one of you is German, but also if you are not German and your family lives in Germany: registry offices, family courts, and the local foreigners authority (Ausländerbehörde) will all need to know who the child’s parents are under German law. Whether the California judgment carries over depends largely on the child’s genetic link to the intended parents.

Where at least one intended parent is genetically related to the child, a California parentage judgment can generally be recognized in Germany. Under Section 108(1) of the Act on Proceedings in Family Matters (FamFG), foreign court decisions are recognized without any special procedure, and the Federal Court of Justice (Bundesgerichtshof, BGH) has confirmed that this applies to surrogacy judgments where such a genetic link exists. The leading case concerned a California judgment naming two intended fathers as the child’s legal parents, one of whom was the genetic father (BGH, decision of December 10, 2014, XII ZB 463/13). For recognition to work, the California judgment must clearly name the intended parents as the child’s legal parents.

If neither intended parent is genetically related to the child, Germany generally refuses to recognize the California judgment, and the intended parents must adopt the child. This is the case, for example, where both the egg and the sperm came from donors. In its decision of May 13, 2026 (XII ZB 220/25), the BGH held that recognition in these cases generally violates fundamental principles of German law, known as public policy (Section 109(1) No. 4 FamFG). A pre-birth order obtained without any genetic link therefore protects you in California, but generally not in Germany.

Where no California judgment is recognized, German law decides who the child’s parents are. Under Section 1591 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the legal mother is always the woman who gave birth to the child, even if she is not genetically related to it. In a surrogacy, that is the surrogate mother, not the intended mother.

For the intended father, the position depends on whether the surrogate mother is married. If she is married at the time of the birth, her husband is automatically the child’s legal father under Section 1592 No. 1 BGB, regardless of biology, which complicates matters considerably. If she is not married, the intended father can acknowledge paternity under Section 1592 No. 2 BGB. The intended mother, or the second parent in a same-sex couple, can then usually only become a legal parent through stepchild adoption.

If the child is German, the birth can be recorded in the German birth register under Section 36 of the Civil Status Act (Personenstandsgesetz, PStG). Whether the child is German depends on who the child’s legal parents are under German law, not on the intended parents’ nationality alone. Without a California court judgment, expect the registry office to enter the surrogate mother as the child’s mother, even where the intended mother is the child’s genetic mother. The BGH confirmed this in a case where parenthood had only been registered abroad, not established by a court (BGH, decision of March 20, 2019, XII ZB 530/17). The same applies where a court judgment exists but recognition is refused for lack of a genetic link: Section 1591 BGB governs until an adoption has been completed, and adoption after surrogacy abroad is the route to legal parenthood.

In principle, anyone can become an intended parent in California. The law does not distinguish by marital status, sexual orientation, or gender identity, so married and unmarried couples, same-sex couples, and single people can all enter into a gestational carrier agreement. Because egg donation is also permitted, surrogacy is open to women who have no usable eggs of their own. This makes California considerably more open than most jurisdictions, including most of Europe, where access to surrogacy is often restricted or not available at all.

Whether German law will later recognize your parenthood is a separate question. If donor eggs are combined with donor sperm, so that neither intended parent is genetically related to the child, Germany will generally not recognize the California judgment.

California law itself sets no age, citizenship, or residence requirements for the surrogate mother. It mainly regulates the contractual and procedural requirements for the gestational carrier agreement. In practice, however, clinics and agencies set their own criteria, typically a minimum age of 21, at least one previous pregnancy of her own carried to term, and medical and psychological screening. Some agencies also require the surrogate mother to be a US citizen or permanent resident.

From a German perspective, one further point matters: whether the surrogate mother is married. If she is, and the California judgment is not recognized in Germany, German law treats her husband as the child’s legal father, which considerably complicates the intended father’s position.

Surrogacy in California is arranged through specialized agencies. Before the embryo transfer, the intended parents and the surrogate mother must sign a written gestational carrier agreement with notarized signatures, and each side must be represented by their own independent lawyer (Section 7962(b) and (c)). The agreement must state, among other things, who the intended parents are, whether donated eggs, sperm, or embryos are used, and how the intended parents will cover the medical expenses of the surrogate mother and the newborn (Section 7962(a)). The embryo transfer, and any injectable medication in preparation for it, may only begin once the agreement has been fully signed (Section 7962(d)).

Where the intended father is genetically related to the child, he should also acknowledge paternity at a German consulate in California before the birth, with the surrogate mother’s consent. This secures his legal position under German law and is usually what allows the child to receive a German passport. Under German law, it is only possible if the surrogate mother is not married.

1. Have the agreement reviewed from a German perspective before signing, including the genetic link and the surrogate mother’s marital status.
2. Sign the gestational carrier agreement, with independent California counsel on each side.
3. Have the genetically related intended father acknowledge paternity at a German consulate during the pregnancy.
4. Obtain the pre-birth judgment.
5. After the birth, obtain apostilles, certified translations, and the child’s travel documents.
6. Record the birth in Germany, or apply for adoption where recognition is not possible.

Most intended parents travel to California for the birth and then return home with their child. A few practical points are easy to overlook:

• Foreign documents. The California judgment and the birth certificate will usually need an apostille, an international certificate confirming that a document is authentic, issued by the California Secretary of State, as well as a certified German translation before German authorities accept them. Arrange both while you are still in California.
• Travel documents for your child. If the intended father’s paternity is established and he is German, the child can usually receive a German passport from the consulate. Otherwise, the child will need a visa to enter Germany and, later, a residence permit, usually through family reunification. A child born in California generally also acquires US citizenship at birth and may be able to travel on a US passport; confirm this with your US lawyer, particularly if neither intended parent is a US citizen.
• Health insurance for your child. Clarify early how your child will be insured from birth until recognition or adoption in Germany is complete.
• Lawyers in two countries. California law requires independent California counsel for the agreement, while the question of recognition in Germany needs a German lawyer. We coordinate with your California lawyer and, where needed, our partner firms in the United States.
• Working with us remotely. Every step that does not require an in-person appointment can be handled online, including while you are still in California.

In our experience at Schlun & Elseven Rechtsanwälte, intended parents often only recognize certain risks once the agreement has been signed or the pregnancy is well advanced. Common mistakes include:

• Assuming a California pre-birth order will automatically be recognized in Germany, without first clarifying the intended parents’ genetic link to the child.
• Not checking whether the surrogate mother is married, even though this decides who the legal father is under German law if recognition fails.
• Not contacting the responsible German registry office early, even though registry offices handle the recording of foreign births differently.
• Not involving a lawyer licensed in California for the gestational carrier agreement, even though California law requires independent legal representation for both sides.
• Leaving costs and liability unclear, particularly for medical complications during the pregnancy, even though California law requires the agreement to set out how medical expenses will be covered.

These mistakes can almost always be avoided if legal advice starts before the agreement is signed in California. Have your plans reviewed from a German law perspective before you sign.

At Schlun & Elseven Rechtsanwälte, our family law team supports intended parents through the entire process. This includes:

• reviewing the gestational carrier agreement for its consequences under German law, alongside your California lawyer,
• assessing whether the California judgment can be recognized in Germany,
• coordinating with the German consulate on acknowledging paternity and obtaining the child’s passport,
• representing you before the registry office when the birth is recorded in Germany, and
• where recognition is not possible, handling the stepchild adoption or adoption by both intended parents.

Where the child’s residence status is at stake, we work alongside our immigration lawyers. Your matter can start with a consultation by video call, in which we review your plans or the documents you already have and set out the next steps. We advise in English, treat every matter confidentially, and explain any expected further costs at the outset. Have your situation reviewed early, as the child’s genetic link to the intended parents can decide everything that follows.