Law Review column: Surrogacy contracts ruled constitutional in California |

Law Review column: Surrogacy contracts ruled constitutional in California

Jim Porter
Law Review

Surrogacy agreements, where a woman becomes a gestational carrier for would-be parents, are becoming more common. In our case today, the would-be father’s sperm and ova from an anonymous donor were used for in vitro fertilization resulting in triplets. Be careful what you wish for.

Surrogacy Arrangement

In 2015, Father and surrogacy mother, MC, signed a 75-page agreement. Father was identified as an “intended parent” and MC as “surrogate.” A lot of details in 75 pages.

During the pregnancy, the fear of all fears for a would-be surrogacy parent: MC developed reservations about the arrangement. In fact, MC opposed Father’s petition to be declared the sole parent of the three children.

MC made various challenges to the surrogacy contract and pushing harder, attacked the constitutionality and enforceability of surrogacy agreements in California.

Father prevailed. MC appealed to the Second Appellate District.

In Vitro Fertilization Surrogacy Agreement

The agreement recited that MC had four children, that she had previously been a surrogate mother, did not desire to have a parental relationship and acknowledged that any children would not be hers, and on and on.

MC initialed each page of the agreement. Her signature was notarized and her attorney acknowledged she had a clear understanding of the gestational servicing contract. Surrogacy agreements are not taken lightly.

Lawsuit Challenging Agreement

MC sued to challenge the in vitro fertilization surrogacy agreement claiming Father had allegedly sought to abort one of the fetuses, that he was 50 years old, deaf and employed as a postal worker in Georgia and “not capable of raising three children.”

Section 7962 of the Family Code spells out in a relatively clear checklist style the requirements of assisted reproduction agreements for gestational carriers, as the Court of Appeal called the contract.

As noted, the trial court ruled for Father finding the agreement was entered into voluntarily and all legal requirements under California law had been met.

Constitutional Challenges

The court also rejected MC’s constitutional challenges to surrogacy agreements and confirmed that such contracts are consistent with California public policy.

MC’s argument that she had a constitutionally protected liberty interest in a relationship with the three children that she could not waive before birth was found meritless.

The court expressly rejected MC’s argument that surrogacy contracts violate public policy because they “tend to exploit or dehumanize women.”

The court upheld the gestational contract. I like this opinion.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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