What are the legal provisions for surrogacy in California, USA?
Ⅰ Core Legal Framework
1 . Basic provisions of the Family Code
Article 7960: Explicitly allowing surrogacy during pregnancy, stipulating that surrogacy agreements have legal effect, and entrusting parents can confirm the parent-child relationship through court orders before the child is born, without the need for adoption procedures.
AB-1217 Act (2013): Establishing a legal framework for surrogacy, allowing commercial surrogacy, and ensuring that entrusted parents (including single, same-sex, and married opposite sex partners) obtain children through surrogacy.
Subsequent Acts (2015): Acts AB-960, AB-1049, and AB-2349 further refine the key points of surrogacy agreements and strengthen the rules for determining parent-child relationships.
2. Scope and conditions of application
Family types: covering all types of families, including single individuals, same-sex partners, and opposite sex partners.
Proxy Mother's Residence: No restrictions, even if the proxy mother is not in California, the agreement remains valid.
Agreement requirements: It is necessary to clarify the rights and obligations of both parties, including medical expenses, compensation standards, and breach of contract responsibilities. The court shall review the legality of the agreement through a hearing procedure.
3. Identification of parent-child relationship
Prebirth Order: Entrusting parents to apply for a court order before the birth of their child, directly registering them as legal parents and ensuring that their child is immediately recognized by law after birth.
Genetic relationship: If parents are entrusted to provide reproductive cells (sperm or eggs), the parent-child relationship does not need to be confirmed through adoption procedures.
Ⅱ. Judicial Practice and Cases
1. Key case analysis
The Monson case (2000):
Case: French citizens obtained twins through surrogacy in California. The French court refused to recognize the parent-child relationship, and ultimately the European Court of Human Rights ruled that France violated human rights conventions.
Basis of judgment: The California court emphasized the economic freedom, reproductive choice, and protection of children's rights of surrogate mothers, and determined that the surrogacy agreement is valid.
German Federal Supreme Court case (2017):
Case: German same-sex partners obtained their children through surrogacy in California, and the German court ultimately recognized the California ruling, prioritizing the interests of the children.
Meaning: Breaking through the legal conflict of prohibiting surrogacy in China and reflecting the international judicial attention to children's rights.
Melissa Cook case (2016):
Case: The surrogate refused to have an abortion and sued for custody. The court upheld the validity of the surrogacy agreement and refused the surrogate's request.
Impact: Strengthen the legal binding force of surrogacy agreements and curb unilateral breach of contract by surrogate mothers.
2. Legal conflicts and coordination
Cross border surrogacy judgment recognition: The recognition issue of California court judgments in countries such as Germany and France highlights the controversy over the principle of "public order preservation", but the principle of prioritizing children's interests has gradually become a consensus.
Domestic interstate differences: California's open attitude contrasts with states such as New York and Louisiana that prohibit commercial surrogacy, reflecting the diversity of laws under the federal system in the United States.
Ⅲ . Legislative background and evolution
1. Historical development
Early legislation (1982): California first legislated to allow surrogacy, laying the legal foundation.
Full legalization (2013): AB-1217 was passed, officially legalizing commercial surrogacy and attracting international demand.
Technological adaptation: With the advancement of assisted reproductive technologies such as in vitro fertilization and embryo transfer, legislation is gradually improving to cover new forms of surrogacy.
2. Legislative motivation
Demand driven: Meet the fertility needs of infertile families (approximately 10% -15% of couples of childbearing age) and adapt to the demands of the LGBTQ+community to form families.
Economic and ethical balance: Seeking a balance between prohibiting the chaos of underground surrogacy and regulating the market, ensuring reasonable compensation for surrogate mothers through legal frameworks, and preventing excessive commercialization.
Ⅳ. Controversy and Social Impact
1. Support the viewpoint
Protection of reproductive rights: Empowering infertile families with the right to have children through technological means and promoting family diversity.
Economy and Regulation: Legalization promotes the standardization of the surrogacy industry chain and reduces underground market risks such as fraud and health hazards.
2. Opposing views
Ethical controversies: commodification of the uterus, health risks of surrogacy (such as complications during pregnancy), potential legal conflicts (such as cross-border recognition of judgments).
Social impact: may exacerbate the wealth gap, reduce low-income women to "reproductive tools", and address social issues caused by gender selection.
3. Industry Status
California Status: Becoming a global surrogacy center with a complete industry chain, but with regulatory loopholes in intermediary agencies and chaotic underground markets.
International comparison: Compared with countries such as France and Germany that prohibit surrogacy, reflecting cultural differences in the acceptance of reproductive technology.
Ⅴ. Conclusion and Suggestions
1. Legal system evaluation
Advantages: Taking the interests of children as the core, balancing the rights of surrogate mothers and the needs of entrusted parents, and flexibly adapting to technological development in judicial practice.
Challenge: Ethical disputes, cross-border legal conflicts, and regulatory loopholes still need to be resolved.
2. Future prospects
Legislative improvement: further refine the health protection of surrogate mothers, the qualification review of intermediary agencies, and the coordination mechanism for cross-border judgments.
International Cooperation: Promote the establishment of an international legal framework for surrogacy, balancing public order and protection of children's rights in various countries.
The surrogacy legal system in California has established an open but standardized framework through the Family Code and a series of laws. Its judicial practice and legislative evolution reflect the continuous game between society's acceptance of assisted reproductive technology and ethical disputes. In the future, we need to seek a better balance between protecting rights and preventing risks.
