Intended Parents – The Fertility Law Firm
Intended Parents 2017-12-01T09:56:12+00:00

Intended Parents

GESTATIONAL SURROGACY

What Intended Parents need to know.

Gestational Surrogacy occurs when a woman, referred to as “Gestational Carrier” gestates and gives birth to a child conceived via an embryo transfer using embryos that belong to a third party(s), who are referred to as the “Intended Parent(s)”. The embryos transferred have no genetic or legal tie with the Gestational Carrier. Embryos can be created through the egg and sperm of the Intended Parents, the genetic material of only one Intended Parent, a single Intended Parent combined with donated egg or sperm, or the embryos are created through egg and sperm donation alone. Regardless of whether the Intended Parents have all, some or no genetic relationship to the child a Gestational Carrier gives birth to, California law will recognize the Intended Parents as the sole legal parents of the resulting child.

California case law coupled with California Family Code Section 7962 establish a firm legal footing confirming the parentage rights of Intended Parents who have children through gestational surrogacy. So long as the Intended Parents and the Gestational Carrier follow all legal formalities required before the Gestational Carrier starting medication for the embryo transfer, a California court will declare the Intended Parents (whether they are same sex, married, unmarried or single) as the only legal parents of the resulting child, and only their names shall be placed on the child’s birth certificate, regardless of whether there is a genetic connection to the child.

The legal process of establishing legal parentage in gestational surrogacy matters is two-fold. Step one is the contract between the Intended Parents. This phase involves the Intended Parents and the Gestational Carrier retaining separate and independent legal counsel. The attorney for the Intended Parents then drafts the contract ensuring that the agreement surrogacy contract contains specific language, terms and disclosures required under California law. Once the Intended Parents have approved the contract, the draft is sent to the Gestational Carrier’s attorney to review with the Gestational Carrier. Once all parties to the contract agree on the terms, the contract is signed, which under California law must be properly witnessed.

Once the attorney for the Intended Parents receives the fully signed contract from the Intended Parents, and the Gestational Carrier, a letter from the attorney is sent to the IVF Physician, also referred to as a “legal clearance letter” or “clearance”, confirming receipt of the parties’ signature and that the contract and signatures meet the legal requirements under California law.

It is critical that the Intended Parents hire experienced legal counsel who understands the contract process to ensure compliance with California’s statutory requirements. Additionally, the legal guidance reflected in the terms of the contract should provide protections for the Intended Parents regarding liability, maintaining the parties confidentiality, defining medical expenses, surrogate compensation, and termination rights, just to name a few of the many key terms the contract should have.

Step two begins once the Gestational Carrier’s pregnancy is confirmed. This process, also referred to as a “Pre Birth Order”, “PBO”, or “Parentage Action” involves filing a number of legal documents, called “pleadings” in California State Court seeking a judgment be issued prior to the child’s birth, declaring the Intended Parents are the sole legal parents of the resulting child. The resulting judgment, signed by the Court, both confirms the legal rights of the Intended Parents as the child’s sole parents, and orders that the child’s birth certificate, completed by the Birth Clerk at the hospital where the child is born, list only the names of the Intended Parents as parents of the child. The birth certificates issued in California do not list whether the child was born by surrogacy and/or is the result of an egg, sperm or embryo donation.

It is crucial that the Intended Parents retain an attorney with substantial experience in this very specialized and rapidly changing field. The time saved, legal protections gained and the financial savings to Intended Parents who start with experienced legal counsel has long been proven.
For international Intended Parents, hiring legal counsel with experienced with the issues facing international parents and the ability to connect them with surrogate friendly experienced immigration attorneys in the Intended Parent’s country is an absolute must. The risks and monies spent if Intended Parents are faced with delays and denials regarding the rights of the child when returning home is avoidable, if not eliminated when seasoned legal counsel is hired at the start of the surrogacy journey. We have successfully represented numerous Intended Parents selecting the United States for surrogacy coming from all over the world, including Asia, Australia, Africa, Europe, the Middle East, New Zealand, and Central and South America. The Fertility Law Firm has the experience and translation resources guide Intended Parents of any nationality.

Advising, educating and safeguarding Intended Parents with and through a high level of sophisticated, experienced legal expertise and respected resources is what the Fertility Law Firm is known for. Our guiding belief is that when Intended Parents are well informed and counseled on each step of the gestational surrogacy process, the pathway to parenthood is positive, and joyous.

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