If either spouse was not a biological parent, should the non-biological parent still be financially liable for not only support but also the cost of assisted reproduction if the couple has parted company?
By Evie Jeang, Family Lawyer
Often times, couples pursue the path of bearing a child by way of a surrogate. This can be an extremely stressful time for both potential parents, taking both an emotional and financial strain on the couple. As a result, couples often contemplate whether they truly want to have a child, or whether it is meant to be. The legal question then becomes: In the event that either spouse was not biologically the parent, due to failure to use their sperm or eggs, should they still be financially liable for not only support, but the cost?
Courts have gone both ways on this issue, taking the egg donor agreement and gestational surrogacy contract with both the egg donor and the surrogate into account. Pursuant to AB 1217, the Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents, and governs proceedings to establish that relationship. As applied to surrogacy agreements, the appropriate term to determine parentage is, “intended parent(s)”. This is defined by Section 1, Part 7 (commencing with Section 7960) of Division 12 of the Family Code as: an individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction.
With this being said, where it appeared clear that both parties intended to raise this child at the time of entering into the agreement, the court determined that they should be liable. However, where it cannot be established by clear and convincing evidence that one of the parties intended to become the intended parent, they will be relieved of any of the rights and responsibilities associated with this.
Further, the recent amendment to Chapter 466 of AB 1217 provides that parties to a surrogacy agreement are required to be represented by independent counsel of their choosing prior to executing the agreement, that specific information must be included, that this agreement shall be notarized or otherwise witnessed, it prohibits undergoing embryo transfer or injection of medication until the agreement has been fully executed, and the bill permits parties to the assisted reproduction agreements to establish the parent-child relationship before the child is born. All of these considerations, among others, help to establish the validity of the agreement, and both intended parents should be a party thereto.
Satisfying these legal requirements can ensure that parties contemplating an assisted reproductive agreement are held liable to that agreement and the agreement is fully enforceable. Whether it be for heterosexual couples, same-sex couples, or considerations in relation to the rights individuals have to their partner’s person per property interest in bodily fluids stored in contemplation of pursuing assisted reproduction post-divorce or post-death. It is these considerations, among others, that make the assistance of an experienced attorney in the field of assisted reproductive rights so essential.
Evie Jeang is Managing Partner of Ideal Legal Group, Inc., Founder of Surrogacy Concierges, and practices international family law, immigration and assisted reproductive technology. She is licensed to practice in California and New York, and is fluent in Mandarin Chinese and Taiwanese. www.ideallegalgroup.com
The question of whether citizenship will transmit to children born outside of the U.S. remains an important issue for your clients to consider when choosing to make assisted reproductive technology arrangements abroad.