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Artificial Insemination and the
Law
Traditional Surrogacy
It is important that Intended Parents understand
that no California court has specifically upheld an artificial
insemination (traditional surrogate) contract. As a result,
there is no assurance that the custody of the child will
be awarded to the Intended Parents, should a Surrogate repudiate
the surrogate contract and assert maternal rights and seek
custody of the child. The law regarding the enforceability
of artificial insemination agreements is currently unclear
and unsettled. However, the recent California Court of Appeal
decision in Buzzanca v. Buzzanca has arguably extended the
same protections afforded in gestational surrogate arrangements
to traditional surrogacy. Namely, the courts will honor
the intent of the parties, as set forth in the California
Supreme Court opinion of Johnson v. Calvert.
Historically, with respect to finalizing
parental rights, a Judgment of Paternity was obtained to
declare the Intended Father the biological and legal father
of the child, before the birth of the child. After the birth
of the child, the names of the Intended Father and the Surrogate
Mother appeared on the birth certificate. The Intended Mother
was then compelled to complete a Stepparent Adoption in
the county where the Intended Parents reside. A social worker
from the local Department of Children’s Services would
be assigned to review the file and approve the Stepparent
Adoption. During this process, the Surrogate Mother signed
a final consent agreement to formally terminate her parental
relationship to the child. At the final Stepparent Adoption
hearing, the Family Law Judge would sign an Adoption Decree
and the birth certificate would be amended to reflect the
Intended Mother’s name as the natural and legal mother.
The Adoption decree terminated all of the Surrogate Mother’s
parental rights. Further, the first birth certificate would
be sealed and a new one ordered with the names of the Intended
Father and the Intended Mother.
However, since the ruling in Buzzanca,
our firm has been successful in finalizing our clients rights
through a pre-birth Judgment of Maternity and Paternity.
The resulting birth certificate is issued initially in the
names of the Intended Parents. The advantages of this approach
are numerous. First, the parental rights of the Surrogate
(and her husband if she is married) are terminated prior
to the birth of the child. Second, the Intended Mother will
not have to undertake a step-parent adoption. Finally, this
approach permits the Department of Health to issue the birth
certificate, in the first instance, in the names of the
Intended Parents, thus obviating the need for an amended
birth certificate. Perhaps the most significant aspect of
Buzzanca, is the elimination of the disparate treatment
and protections which previously existed between Intended
Parents who utilized gestational surrogacy and those that
chose traditional surrogacy.
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