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Custody Issues with Surrogate Mothers

Posted on in Child Custody and Visitation

California custody attorney, California family law attorneyAccording to CDC, an estimated 6.7 million couples have difficulty conceiving a child due to a wide variety of factors. After years of failed attempts, many turn to alternative solutions to complete their family. One avenue increasing in popularity is surrogacy. Through this method, a woman carries the child of another individual or couple until birth, then gives the child to the parents. A maternal bond develops naturally during the nine month gestation period which can create complications after delivery. Occasionally, the original arrangement no longer suits the surrogate mother and a custody dispute ensues.

Forms of Surrogacy

There are several different forms of surrogacy that a couple can choose, usually depending on the issue hindering their ability to conceive naturally. Two of these options stand out among the rest. The two most popularly utilized are:

  • Traditional: The male from the relationship fertilizes the egg of the surrogate mother, making her the biological mother, but she gives the child to the couple after delivery.
  • Gestational: The sperm and the egg from the couple are inseminated into the surrogate mother, enabling both parents to be the biological parents and the surrogate mother will not have any biological tie.

California Surrogacy Laws

It is widely understood that California is a progressive state in which legislation believes that each family is free to decide what is best for their family. Following these ideas, California is a “surrogacy friendly” state, in which laws are very accommodating to those seeking surrogacy agreements. It is one of the few states that allow the intended parents to establish their paternal rights to their children before their birth without having to adopt them. Parentage is established regardless of marital status or sexual orientation. A few requirements to ensure a smooth experience include:

  • Both parties must have separate legal counsel,
  • Gestational surrogacy agreements must be notarized,
  • Agreements must be executed before beginning the medications to prepare for embryo transfer, and
  • All parties must attest to compliance of California surrogacy laws.

Surrogacy is Not Adoption

In an adoption case where a biological mother agrees to the adoption of her child to another couple, adoption proceedings must take place after the birth of the child. This enables the biological mother to change her mind even after the delivery of her child. Surrogacy laws in California do not enable a pregnant surrogate to reconsider the intended outcome. However, one course of action may be to explore California’s Third Parent Law, depending on the circumstances.

Custody Concerns

The struggle of attempting and failing to conceive a child is burdensome to many families, sometimes unfortunately resulting in irreconcilable differences due to the stress of the situation. Having a surrogate is a positive solution with a high success rate, enabling thousands of couples to realize their dream of parenthood. If you are considering surrogacy interested in discussing the legal parameters with a reputable and proven Los Gatos, CA child custody attorney, contact the Law Offices of Benita Ventresca at 408-395-8822 to schedule your complimentary first consultation. With over 35 years of experience in the San Jose and Santa Clara, CA area, our expertise will help you get the results you deserve the first time.



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Law Offices of Benita Ventresca

20 S. Santa Cruz Ave., Suite 212
Los Gatos, CA 95030

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