Sperm Donors, Surrogates, and Co-Parents: What you Need to Know About Parentage in California Law
The modern family is made in many ways. Advances in reproductive technology over the past 50 years have made parenthood possible for people who previously had limited or no options. But with these advancements come legal questions that have never had to be asked in the prior history of law and parentage.
When biology, intention, and technology intersection, the law must determine who is the legal parent. In California, understanding how the law distinguishes between sperm donors, surrogates, and co-parents is essential because the role you assume (or assign to someone else) can have lifelong consequences for custody, visitation, financial support, and parental rights.
What Is Legal Parentage?
Legal parentage is the established, court-recognized parental relationship between a parent and a child. This status is required in order to enjoy the parental rights and responsibilities granted to parents of a child. These include the right to custody and visitation, as well as the right to make important decisions for your child. These range from decisions on the religion the child will be raised in, medical care, and the child’s education. A legal parentage is also required for inheritance to automatically flow to the child.
These rights come with responsibilities. Those with legal parentage are required to provide for their child’s needs.
In California, biology is not the sole way to establish parentage. In fact, there are several circumstances where biology will NOT determine legal parentage. The Uniform Parentage Act (UPA) recognizes that parentage can be established through birth, marriage, adoption, signing a voluntary declaration of parentage form, or by court judgment. Intention, more so than biology itself, plays a big role in establishing legal parentage.
Donors: Intent and Consent Matter
In most cases, sperm or ova donors are not legal parents under California law. This is intentional and protective for all involved. California Family Code section 7613 provides that a person who provides sperm through a license physician or sperm bank is not considered a legal parent unless there is a written, valid agreement stating otherwise that was signed before conception.
Section 7613 provides:
(a)(1) If a woman conceives through assisted reproduction with semen or ova or both donated by a donor who is not the woman’s spouse, with the consent of another intended parent, that intended parent is treated in law as if that intended parent is the natural parent of a child thereby conceived. The other intended parent’s consent shall be in writing and signed by the other intended parent and the woman conceiving through assisted reproduction.
(a)(2) Failure to consent in writing, as required by paragraph (1), does not preclude the court from finding that the intended parent consented if the court finds by clear and convincing evidence that, prior to the conception of the child, the woman and the intended parent had an oral agreement that the woman and the intended parent would both be parents of the child.
If sperm is provided through at-home insemination rather than a licensed medical professional, the donor may be treated as a “presumed parent” under certain circumstances. This can open the door to custody or visitation claims by and against the donor and child support claims by and against the donor. This is why many people prefer an anonymous donation through a licensed clinic to avoid any future issues.
Surrogates: Understanding the Two Types
California recognizes two types of surrogacy, each with very different legal implications.
Traditional Surrogacy: In traditional surrogacy, the surrogate uses her own egg. Because she is the biological mother, she is initially presumes to be the legal mother until her rights are terminated through legal proceedings. This arrangement carries higher legal risk and is less common in California today.
Gestational Surrogacy: In gestational surrogacy, the surrogate carries an embryo created from the intended parents’ genetic material. The surrogate has no biological connection to the child.
Under California Family Code section 7960-7962:
- A written surrogacy agreement must be signed before embryo transfer
- Each party must have independent legal counsel
- The agreement must clearly establish intent regarding parentage
When done correctly, intended parents can be declared the legal parents before the child is born. Failure to comply with statutory requirements can result in emotional and expensive disputes over parentage.
Parents Intending to Share Parentage
A parent is someone who intends to be a full legal parent, regardless of biological connection. Unlike donors or surrogates whose presumed parental rights are intentionally limited, parents are individuals who either acquire parentage through law or secure it through court action.
- Marriage or Registered Domestic Partnerships: If a child is born during a marriage or partnership, both spouses are presumed to be the legal parents, even if only one is biologically related.
- Voluntary Declaration of Parentage (VDOP): An unmarried, non-biological parent may establish parentage by signing a VDOP at the hospital after the child is born, which carries legal weight as a court order.
- Court Judgment or Adoption: A court-issued parentage judgment or adoption order can establish legal parentage when other presumptions to do not apply.
Contact Cardwell Steigerwald Young LLP
Family law grows ever more unique and nuanced through the years, and modern families deserve competent legal counsel to help guide them through the various issues they face. Whether you have questions about establishing your own rights, you are struggling with a co-parent, or you have another family law matter that you need legal expertise to navigate, our experienced family law attorneys can help. Contact the San Francisco family law attorneys with Cardwell Steigerwald Young LLP today.
Sources:
selfhelp.courts.ca.gov/VDOP
California Family Code section 7613
California Family Code section 7960-7962
