California’s pre-birth surrogacy orders

London barrister Andrew Powell recently spent time at a Los Angeles firm specialising in surrogacy and fertility law to see how effectively California’s regulated environment works. Writing in BioNews, he says that the certainty which comes with regulation and a clear definition of the rights of the commissioning couple and the surrogate mother prevents exploitation. “In all of the cases I saw the parties had freely and with the benefit of legal advice, entered into surrogacy arrangements.”

However, he did notice one peculiarity of California’s system which flies beneath most people’s radar: pre-birth orders. With this arrangement the surrogate mother surrenders all parental rights to the child while it is still in her womb and assigns them to the couple. She becomes just a walking, talking uterus. This arrangement “served to reinforce the concept that it was a commercial transaction and the unborn child didn't 'belong' to the surrogate,” writes Powell.

This is how a California lawyer describes the benefits of pre-birth orders:

“A pre-birth order declares to the world that the intended parents are the child’s legal parents, despite the fact that neither one of them is giving birth to the child. It also requires that the hospital where the child will be born to put the intended parents on the child’s birth certificate. A pre-birth order is important for a number of reasons: They give the intended parents sole access to the child; gives them the right to make medical decisions for the child; resolves issues relating to insurance coverage; allows parents to take their child home from the hospital; and provides piece of mind for the intended parents.”

This article is published by Michael Cook and under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.

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