Legal Issues Regarding Surrogacy

By Gerald A. Maggio, Esq.

California Family Law Attorneys; California Divorce MediatorsThe role of a surrogate mother involves carrying and giving birth to a child that belongs to a couple who are unable to conceive in the natural manner. The importance of surrogacy lies in the fact that it is a natural process and includes the same procedures as that in pregnancy. Surrogacy has become an important method for giving birth to a child for mothers who are unable to become pregnant. But surrogacy is not as simple as it sounds. The process involves many ethical and legal issues that must be accepted by parents before they can go for surrogacy. One of the most important things concerning surrogacy is determining who the true parent of the child is. There have been cases where the surrogate mother became the primary caretaker and legal guardian of the child they were carrying. It can be a nightmare for hopeful parents especially mothers to see someone else become their child’s legal guardian.

Rights of a surrogate mother

Every couple who plan to opt for surrogacy should understand the legal rights a surrogate mother is entitled to after she gives birth to the child. In the eyes of the law, the person who gives birth to the child has the right to become the legal mother. Before surrogacy takes place, a legal contract is signed but parents should bear in mind that surrogacy arrangements can be changed anytime. The surrogate mother has the legal right to keep the child if she wishes to.

Parents who want to avoid complications and unwanted problems should first understand each and every aspect of the Surrogacy Arrangements Act of 1985. Next, they should consult with a good family lawyer who has experience dealing with legal issues in surrogacy and parenting.

Obtaining parental rights

Parents need to obtain parental rights before the child can be legally theirs. It might seem odd that biological parents need to apply for a parental order but that is how the law works. The order states that all rights and obligations must be passed down from the surrogate mother to the intended parents. There are certain conditions before a parental order can be made. One of the conditions requires at least one of the parents to be biologically related to the child. The application must be made within six months after the child is born.


Surrogate mothers enjoy many legal rights over the child and can very well become the legal mother. Couples who want their child to be born through a surrogate mother should therefore read and understand the laws regarding surrogacy.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation