Download this free ASRM Patient Education Booklet. Third Party Reproduction: Sperm, Egg, and Embryo Donation and Surrogacy
Download this free ASRM Patient Education Booklet. Third Party Reproduction: Sperm, Egg, and Embryo Donation and Surrogacy
The European Court of Human Rights (ECHR) has ruled that children born to surrogate mothers abroad must be recognized as French citizens even though surrogacy is banned in France.
Two French couples who have children born to surrogates in the US over 10 years ago fought long and hard through the French legal system to get their children recognized as French citizens. Finally, their dreams came true when the Court ruled that denying such citizenship was “an infringement of the children’s right to respect for their private life” and “undermined the children’s identity within French society.”
Congratulations to the Menesson and Labassee families, as well as attorney Patrice Spinosi!
The UK government has issued a document providing its citizens with steps for returning home with their US-born babies born to a surrogate. Since paid surrogacy is illegal in the UK, many couples choose to come to the US for help. Recognizing this, the government has provided information on securing British citizenship for the child. Our UK clients have clear guidelines when they return home to live happily ever after.
Click here for the “Surrogacy Overseas” document.
When money isn’t an issue, global surrogacy also goes in the other direction.
Surrogacy is banned in China. So when Tony Jiang and his wife, who live in Shanghai, discovered they couldn’t have children on their own, they decided to look overseas, and ended up traveling to a surprising place for help.
“I already tried illegal underground surrogates in southern China, which turned out to be a total failure,” Jiang told America Tonight. “So that’s why afterwards I would try to explore international surrogacy industry. I checked with the surrogates from India, Ukraine, and Thailand. They had the solution in California.”
Three years and $275,000 later, Jiang and his wife now have three children: a daughter and a twin boy and girl, who were all born from the same surrogate. If they had been born in China, Jiang and his wife would be in violation of Chinese law. But the children were born in The Golden State; they’re all American citizens.
The government has already relaxed its one-child policy, permitting couples to have two children if at least one spouse is an only child, like both Jiang and his wife. But Chinese couples who have more than two children still face heavy penalties, so surrogacy is attracting the Chinese parents who can afford it to come to the U.S.
“It means that they’re getting their children with foreign passports,” said Jiang. “So they don’t bother registering that newborn as a Chinese citizen.”
Soon after his children were born, friends began asking Jiang for help. Before long, the young father was in the business of babies, setting up his own surrogacy agency, DiYi Consulting, which has helped nearly 100 couples since it began operating in 2012.
In addition to skirting China’s child restrictions, American surrogacy also opens a window for emigration. Upon turning 21, children born in the U.S. can apply for green cards for their parents.
Jiang pointed out another advantage in the American surrogate experience: gender selection.
Many Chinese seeking American surrogates request boys because male children are still culturally preferred. That’s possible in the U.S., where gender selection in technically straightforward through in vitro fertilization.
“It’s not commercially open or allowed in greater China region,” Jiang explained. “Especially for those couples already having a girl or a boy and they are doing further family building, gender selection will be very essential to them.”
Three of the nearly 100 Chinese couples Jiang’s agency has helped are gay, but he said infertility is what has motivated most of his clients to seek out surrogacy.
According to the Chinese Population Association, some 40 million Chinese citizens are infertile – about 12.5 percent of people of childbearing age. That number has quadrupled over the past 20 years.
But surrogacy in the U.S. is only available to those who can afford it. Jiang said a basic package, including one IVF cycle, costs between $120,000 and $170,000.
“I think 90 percent of my clients are private business owners,” Jiang said. “They have very high income. Also, maybe some middle class and above.”
Although there are no official statistics on the number of Chinese parents who come to the U.S. for surrogacy, agencies say it’s growing rapidly. All they have to do is point out the growing number of American surrogacy clinics and agencies that are hiring Mandarin speakers and developing websites in Chinese.
Going Global for a Family, Al Jazeera (May 12, 2014).
A judge struck down Arkansas’ ban on same-sex marriage, saying the state has “no rational reason” for preventing gay couples from marrying. The next day, Arkansas issued its first same-sex marriage license to Kristin Seaton and Jennifer Rambo.
First comes love ….
If your surrogate delivers in California, your arrangement will be subject to California’s statutory requirements. Feel free to contact us for any preliminary questions in beginning your surrogacy arrangement.
7960. For purposes of this part, the following terms have the
(a) “Assisted reproduction agreement” has the same meaning as
defined in subdivision (b) of Section 7606.
(b) “Fund management agreement” means the agreement between the
intended parents and the surrogacy facilitator relating to the fee or
other valuable consideration for services rendered or that will be
rendered by the surrogacy facilitator.
(c) “Intended parent” means an individual, married or unmarried,
who manifests the intent to be legally bound as the parent of a child
resulting from assisted reproduction.
(d) “Nonattorney surrogacy facilitator” means a surrogacy
practitioner who is not an attorney in good standing licensed to
practice law in this state.
(e) “Surrogacy facilitator” means a person or organization that
engages in either of the following activities:
(1) Advertising for the purpose of soliciting parties to an
assisted reproduction agreement or acting as an intermediary between
the parties to an assisted reproduction agreement.
(2) Charging a fee or other valuable consideration for services
rendered relating to an assisted reproduction agreement.
(f) “Surrogate” means a woman who bears and carries a child for
another through medically assisted reproduction and pursuant to a
written agreement, as set forth in Sections 7606 and 7962. Within the
definition of surrogate are two different and distinct types:
(1) “Traditional surrogate” means a woman who agrees to gestate an
embryo, in which the woman is the gamete donor and the embryo was
created using the sperm of the intended father or a donor arranged by
the intended parent or parents.
(2) “Gestational carrier” means a woman who is not an intended
parent and who agrees to gestate an embryo that is genetically
unrelated to her pursuant to an assisted reproduction agreement.
7961. (a) A nonattorney surrogacy facilitator shall direct the
client to deposit all client funds into either of the following:
(1) An independent, bonded escrow depository maintained by a
licensed, independent, bonded escrow company.
(2) A trust account maintained by an attorney.
(b) For purposes of this section, a nonattorney surrogacy
facilitator may not have a financial interest in any escrow company
holding client funds. A nonattorney surrogacy facilitator and any of
its directors or employees shall not be an agent of any escrow
company holding client funds.
(c) Client funds may only be disbursed by the attorney or escrow
agent as set forth in the assisted reproduction agreement and fund
(d) This section shall not apply to funds that are both of the
(1) Not provided for in the fund management agreement.
(2) Paid directly to a medical doctor for medical services or a
psychologist for psychological services.
7962. (a) An assisted reproduction agreement for gestational
carriers shall contain, but shall not be limited to, all of the
(1) The date on which the assisted reproduction agreement for
gestational carriers was executed.
(2) The persons from which the gametes originated, unless
(3) The identity of the intended parent or parents.
(b) Prior to executing the written assisted reproduction agreement
for gestational carriers, a surrogate and the intended parent or
intended parents shall be represented by separate independent
licensed attorneys of their choosing.
(c) The assisted reproduction agreement for gestational carriers
shall be executed by the parties and the signatures on the assisted
reproduction agreement for gestational carriers shall be notarized or
witnessed by an equivalent method of affirmation as required in the
jurisdiction where the assisted reproduction agreement for
gestational carriers is executed.
(d) The parties to an assisted reproduction agreement for
gestational carriers shall not undergo an embryo transfer procedure,
or commence injectable medication in preparation for an embryo
transfer for assisted reproduction purposes, until the assisted
reproduction agreement for gestational carriers has been fully
executed as required by subdivisions (b) and (c) of this section.
(e) An action to establish the parent-child relationship between
the intended parent or parents and the child as to a child conceived
pursuant to an assisted reproduction agreement for gestational
carriers may be filed before the child’s birth and may be filed in
the county where the child is anticipated to be born, the county
where the intended parent or intended parents reside, the county
where the surrogate resides, the county where the assisted
reproduction agreement for gestational carriers is executed, or the
county where medical procedures pursuant to the agreement are to be
performed. A copy of the assisted reproduction agreement for
gestational carriers shall be lodged in the court action filed for
the purpose of establishing the parent-child relationship. The
parties to the assisted reproduction agreement for gestational
carriers shall attest, under penalty of perjury, and to the best of
their knowledge and belief, as to the parties’ compliance with this
section in entering into the assisted reproduction agreement for
gestational carriers. Submitting those declarations shall not
constitute a waiver, under Section 912 of the Evidence Code, of the
lawyer-client privilege described in Article 3 (commencing with
Section 950) of Chapter 4 of Division 8 of the Evidence Code.
(f) (1) A notarized assisted reproduction agreement for
gestational carriers signed by all the parties, with the attached
declarations of independent attorneys, and lodged with the superior
court in accordance with this section, shall rebut any presumptions
contained within Part 2 (commencing with Section 7540), subdivision
(b) of Section 7610, and Sections 7611 and 7613, as to the
gestational carrier surrogate, her spouse, or partner being a parent
of the child or children.
(2) Upon petition of any party to a properly executed assisted
reproduction agreement for gestational carriers, the court shall
issue a judgment or order establishing a parent-child relationship,
whether pursuant to Section 7630 or otherwise. The judgment or order
may be issued before or after the child’s or children’s birth subject
to the limitations of Section 7633. Subject to proof of compliance
with this section, the judgment or order shall establish the
parent-child relationship of the intended parent or intended parents
identified in the surrogacy agreement and shall establish that the
surrogate, her spouse, or partner is not a parent of, and has no
parental rights or duties with respect to, the child or children. The
judgment or order shall terminate any parental rights of the
surrogate and her spouse or partner without further hearing or
evidence, unless the court or a party to the assisted reproduction
agreement for gestational carriers has a good faith, reasonable
belief that the assisted reproduction agreement for gestational
carriers or attorney declarations were not executed in accordance
with this section. Upon motion by a party to the assisted
reproduction agreement for gestational carriers, the matter shall be
scheduled for hearing before a judgment or order is issued. Nothing
in this section shall be construed to prevent a court from finding
and declaring that the intended parent is or intended parents are the
parent or parents of the child where compliance with this section
has not been met; however, the court shall require sufficient proof
entitling the parties to the relief sought.
(g) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition filed in the office of the clerk of the court
pursuant to this part shall not be open to inspection by any person
other than the parties to the proceeding and their attorneys and the
State Department of Social Services, except upon the written
authority of a judge of the superior court. A judge of the superior
court shall not authorize anyone to inspect the petition,
relinquishment or consent, agreement, order, report to the court from
any investigating agency, or power of attorney or deposition, or any
portion of those documents, except in exceptional circumstances and
where necessary. The petitioner may be required to pay the expense of
preparing the copies of the documents to be inspected.
(h) Upon the written request of any party to the proceeding and
the order of any judge of the superior court, the clerk of the court
shall not provide any documents referred to in subdivision (g) for
inspection or copying to any other person, unless the name of the
gestational carrier or any information tending to identify the
gestational carrier is deleted from the documents or copies thereof.
(i) An assisted reproduction agreement for gestational carriers
executed in accordance with this section is presumptively valid and
shall not be rescinded or revoked without a court order. For purposes
of this part, any failure to comply with the requirements of this
section shall rebut the presumption of the validity of the assisted
reproduction agreement for gestational carriers.
The only way for the German parents to become parents of a US born child through surrogacy is through an adoption process, pursuant to German law. Even with a California birth certificate indicating they are the sole legal parents, Intended Parents cannot override the applicable German law (Art. 19 Abs. 1 S. 1 EGBGB) and can therefore not establish German citizenship of the child pursuant to §36 Abs. 1 S. 1 PStG. OLG Stuttgart.
German couples are strongly advised to seek local counsel prior to undergoing surrogacy in the U.S.
Louisiana expects to pass legislation that will allow surrogacy arrangements. HB187 would only legalize surrogacy for married heterosexual couples who need a surrogate to carry their biological child due to medical problems. And, monetary consideration would only include legal, travel, and medical expenses, as well as reimbursement for her lost wages in the case of bed rest, and would be subject to court oversight. Nevertheless, its a step forward for couples choosing to work with a surrogate in Louisiana.
Luckily, individuals have many more suitable choices by working with surrogates in friendlier states, such as California, where there are no such legal limitations.
New York State does not allow paid surrogacy. But, that hasn’t prevented 1,000s of people from pursuing surrogacy in other states and countries. Couples usually return to NY with their parental rights already finalized. However, for gay couples who pursue surrogacy in India, the non-biological father must undergo a step-parent adoption of the child back in NY. How did NY deal with this issue? In a recent court decision, the judge allowed a co-parent to adopt the child he and his partner brought about through a paid surrogacy arrangement even though it would have been illegal in NY. Hopefully, this will help lead the path to surrogacy-friendly legislation.
California is the friendliest state: A 1993 case, Johnson v. Calvert, ruled that paid surrogacy arrangements are legal and the intended parents of a child are the sole legal parents.
Read more here.