How Surrogate Child Custody is Determined in a Divorce

Monday, February 4th, 2019
Categories: Blog, Child Custody

Surrogacy is an arrangement where a woman agrees to carry a baby for another couple who is unable to have a baby on their own. Surrogacy is a complex process on its own, but if there is a subsequent divorce involved, determining child custody can be a contentious process. Depending on the type of surrogacy, the terms of the agreement, where are you in the process, and the parties involved, the outcome will vary. It’s crucial that you speak with a Century City divorce lawyer right away to get a clearer picture of your situation and what options are available to you.

Types of Surrogacy

There are two main types of surrogacy. The first is traditional, and this is the process where the surrogate uses her own egg, making her the biological mother of the child. The other type of surrogacy is gestational, and this is where the intended mother (or a separate egg donor) is the source of the egg, which means the surrogate is not biologically related to the child.

California Surrogacy Laws

California is considered a surrogate-friendly state, but there is no specific statute solely dedicated to it. Case law and the Uniform Parentage Act are what govern surrogacy agreements in California. While some states are quite restrictive, California allows for surrogacy agreements no matter what the sexual orientation or marital status is of the intended parents.

How Surrogacy Agreements Can Affect Child Custody

One of the most important aspects of determining child custody is what the terms of the surrogacy agreement state. Your Century City divorce lawyer can verify the terms of your agreement. Having a proper agreement before you start the process can answer all the scary questions before anything happens.

The intended parents can create a custody agreement and share custody, one parent can have full custody, or the child can be given up for adoption. If the child is already born and the couple subsequently splits, it will typically proceed like a standard child-custody matter in a divorce.

In the event the divorce happens after the screening and you’ve been matched but there is no pregnancy yet, the intended parents or the surrogate can delay or terminate the match.

Cases Involving Surrogacy Issues in California

There have been several notable cases in California that deal with surrogacy and divorce. In Buzzanca v. Buzzanca, the California Court of Appeals ruled that a couple who contracted with a surrogate were the child’s legal parents despite the fact that the baby was born after they divorced. The trial court decided the child had no lawful parents, while the appeals court decided otherwise since the child would’ve never been born if the couple had not agreed to have a fertilized egg implanted into the chosen surrogate.

Retaining Century City Divorce Attorney

If you have questions about surrogacy or need any other assistance with related divorce issues, contact the Law Offices of Evan Braunstein at 424-383-5315. Let one of our skilled Century City divorce attorneys assist you with all your family law matters.