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.