Embarking on a surrogacy journey is an exciting process, but it comes with important legal considerations. At Surrogate Parenting Services (SPS), we know how crucial it is for both intended parents (IPs) and surrogates—also known as gestational carriers (GCs)—to understand the legal side of surrogacy. 

To give you some clarity, we’ve consulted three knowledgeable attorneys specializing in Assisted Reproductive Technology (ART) law—Russell M. Werts, an associate attorney at the Law Offices of Werts and Werts, and Sahar Douraghy, Esq. and Kristen Przeklasa, Esq. at OC Child and Family Formation Law Group, LLP.

Let’s break down some essential questions about the legal process in surrogacy:

What should IPs/GCs look for when selecting an attorney to represent them for a surrogacy journey?

From a gestational carrier perspective:

It is important to look for an attorney who is experienced in ART Law, not just a general practitioner. The Gestational Carrier should find an experienced ART Law attorney who they feel comfortable with and can communicate easily with. Someone who takes the time to explain the surrogacy process from a legal perspective.

From an intended parent perspective:

Experience! It’s important that IPs work with an experienced fertility attorney. Surrogacy law is a very specific area of law in California. A general family law attorney or civil attorney may not know the requirements and may not be able to guide IPs through the legal stages effectively. The process can be very smooth if working with an attorney who practices in this area of law routinely. Have a consultation with the attorney. Make sure you’re comfortable with him/her. IPs should ask about costs and what timeline you can anticipate throughout the process. Your surrogacy attorney should be able to advise and guide you about what to expect each step of the way.

What can IPs/GCs expect from their attorney during their journey?

From a gestational carrier perspective:

They can expect their attorney to fully explain the process, thoroughly reviewing the Surrogate Agreement and thoroughly explain the parentage document (Pre-Birth Order) phase. The attorney will answer any questions the Gestational Carrier has regarding the legal process and laws related and make any necessary changes to the Surrogate Agreement the Gestational Carrier may request. The attorney will also be available to answer questions as their journey proceeds and throughout the entire Surrogacy journey.

From an intended parent perspective: 

IPs should expect to have two main sets of contact with their attorney. First legal begins after a Surrogate is medically cleared. Attorneys work with the IPs to prepare the contract between the IPs and the Surrogate. Attorneys start by going through the Agency’s benefits package and incorporating any specific requests the IPs may have. IPs should then have an appointment with their attorney to review the entire contract. The attorney will go through the contract page by page with the IPs and make sure they have an understanding of what each paragraph means and requires. Once approved, the contract then is sent to Surrogate’s attorney for a similar review.

The second legal stage begins when a Surrogate is confirmed pregnant. Usually around 14 weeks of pregnancy the attorneys will begin the Pre-Birth Order or Judgment process. The IPs’ Attorney prepares a set of documents that confirm the IPs are the parents of the unborn child the Surrogate is carrying. These documents are reviewed by IPs and their attorney and then by Surrogate and her attorney. Once everyone agrees and signs, the documents are submitted to the Court for filing well in advance of the birth of the child. Attorneys should also be available to discuss any issues that comes up throughout the entire surrogacy journey, whether that be a question regarding compensation or actions of either party. IPs should feel free to reach out to their attorneys during the entire surrogacy journey.

How long on average does the contract phase take (from signing retainers to legal clearance)?

From a gestational carrier perspective:

This really varies depending on how quickly the Intended Parents’ attorney can draft and review the Surrogate Agreement with the Intended Parents. Once the Intended Parents have reviewed and approved the Surrogate Agreement, it will depend on when the Gestational Carrier can set up a time to review the Surrogate Agreement with her attorney and execute the Agreement properly (with a notary acknowledgment). On average it is about 2-4 weeks.

From an intended parent perspective: 

It depends! (A lawyer’s favorite answer!) In general, anticipate about a month. Once your Surrogate is medically cleared, the IPs’ attorney can begin drafting the contract if they have all the information from IPs and the agency. Our office tries to prepare a draft of the contract for the IPs within a week, but each attorney’s office is different. An appointment is made for the attorney and IPs to review the contract. Once approved by the IPs, the contract is sent to Surrogate’s attorney for a review with the Surrogate. If any revisions are requested by the Surrogate, attorneys may go back and forth before a final draft of the contract is done. The entire process can take as little as a couple weeks and as long as several months.

How long on average does the PBO (Pre-Birth Order) process take in California?

From a gestational carrier perspective:

This is dependent on how quickly the courts can process the documents. Depending on the jurisdiction the documents will be filed in will depend on how quickly a judgment (Pre-Birth Order) can be entered. On average it can take anywhere between 2-4 months from the start of drafting the documents to obtaining the judgment (Pre-Birth Order).

From an intended parent perspective: 

It depends! As with the Surrogacy contract, IPs’ attorney will prepare a draft of the documents and set an appointment to review them with the IPs. The documents are then sent to the Surrogate’s attorney for Surrogate’s review and signing. Once everyone signs, documents can then be submitted to the Court for filing. Each county in California has different procedures for filing PBOs. Some Courts are very fast, filing documents within a few weeks. Other counties may take several months. Procedures change often but sometimes we can give you an estimate based on past experience with a particular county Court.

What makes California “surrogacy friendly”?

From a gestational carrier perspective: 

California has very specific case law decided by California courts and a specific statues enacted by California state legislature which makes California very surrogacy friendly. When reviewing the Surrogate Agreement with your attorney, your attorney will go over the specifics of the case laws and statute.

From an intended parent perspective:

California has specific laws regarding gestational surrogacy. These laws state that Surrogacy contracts are enforceable and allow for Pre-Birth orders (PBO) to be issued. This PBO tells the hospital to list the IPs names on the birth certificate immediately upon birth. From the moment the baby is born, the IPs are given all rights of any parent for the newborn. In certain states, PBOs cannot be issued and IPs must wait until after their baby is born to start the process. Other states do not have clear laws regarding surrogacy so enforcement is questionable. With so much uncertainty built into the IVF process, California law provides reassurance to IPs and Surrogates.

California is a friendly state to IPs of all makeups. California does not discriminate based on marital status, sexual orientation, or genetic connection between the IPs and the baby. Some states do not allow for Surrogacy if the IPs are not genetically related to the child, are same sex couples, or if the IPs are not married.

What are some red flags to be aware of when choosing an attorney?

From a gestational carrier perspective: 

Some red flags would be an attorney who does not work in the ART law industry, an attorney who does not return emails or phone calls quickly. Attorneys who are not familiar with ART law should be avoided.

From an intended parent perspective:

Your attorney should have expertise in fertility law and be able to discuss the process and concerns easily. Fees for surrogacy should be separated out into two parts, the contract phase and the PBO phase. Most fertility attorneys charge flat rates for each part with only additional charges if something unusual occurs or a court appearance is required. Always ask an attorney you are interviewing when they start the PBO phase. They should start the process early in the pregnancy. Babies come early and you do not want the added stress of not having the PBO done before your baby arrives.

Is there anything specific that IPs/GCs should ask for/make sure is in their contract that may not be “standard”?

From a gestational carrier perspective: 

If the Gestational Carrier is planning any out of state trips it is important to bring that before signing to ensure she has the correct expectations of her ability to go on such trips. The Gestational Carrier’s opinion on obtaining vaccinations and abortions are important to express in the agreement as well.

From an intended parent perspective:

It’s important that IPs and Surrogates have the same expectations when beginning the journey. If there is anything that is very important to the IPs, make sure to include it in the contract. For example, the issue of vaccines comes up frequently. IPs and Surrogates should agree on whether the Surrogate will be asked to have a vaccine and if so under what circumstances. Similarly, if the IPs would like the Surrogate to follow any special dietary restrictions, that should be known upfront and included in the agreement.

At SPS, we understand that navigating the legal process in surrogacy can seem daunting. However, with the right guidance and support, it can be a smooth and reassuring process! 

Remember, our team is here to support you every step of the way, ensuring that both intended parents and surrogates feel confident and informed throughout their surrogacy journey.

Learn More About Becoming a Surrogate with Surrogate Parenting Services 

Surrogate Parenting Services is proud to celebrate over 30 years of helping to bring dreams to life! Founded in 1990, Surrogate Parenting Services (SPS) is a full-service surrogacy agency that offers both parties an exceptionally supportive environment throughout the surrogacy relationship. We’re passionate about creating ideal matches between surrogates and intended parents, so the journey is fulfilling for both sides and the future child is brought into this world in the best possible circumstances.

Do you want to become a surrogate? Learn more about our Surrogacy Program online or by calling (949) 363-9525.