Can a Surrogate Mother Seek Custody of Her Biological Child?

Especially since many couples are waiting until they are in their 30s to start trying for a baby, issues with conception have become more widespread. This is because the female body starts decreasing in fertility starting in the mid-30s, and this only gets worse as time goes on.

There are plenty of options if you find yourself in this situation, so there’s no reason to worry. One way to get around fertility issues but still have a child is to use a surrogate.

Conception by surrogacy can be done using the genes from the surrogate mother or the genes of both parents, meaning the fetus is not biologically related to the surrogate mother.

In traditional surrogacy, intrauterine insemination or in vitro fertilization are used, meaning the surrogate’s egg is necessary to create the embryo of the child she is going to carry. In gestational surrogacy, the intended parents create an embryo separately using their own egg and sperm or using donated egg or sperm. In gestational surrogacy, the embryo is biologically related to both intended parents and the surrogate’s DNA has no match to the baby that they birth.

Can a surrogate mother take custody of the child they give birth to?

California state laws are known by child custody attorneys as “surrogacy friendly.” To accommodate those seeking surrogacy agreements, parents can establish parental rights and custody before the surrogate gives birth. These parental rights can be established before the child is even adopted.

For a smooth surrogacy experience, our attorneys suggest the following:

  • Both parties should hire separate family court lawyers, even if they don’t plan on a legal battle
  • All gestational surrogacy agreements should be signed
  • Agreements must be executed before beginning the medications to prepare for embryo transfer

Always make sure to comply with the state’s surrogacy laws so that there aren’t any bumps further down the road. These regulations are the same regardless of whether you and your partner are married or if you are a same-sex couple.

If you are in the beginning stages of surrogacy, you should contact an attorney to make sure that you have no additional stress after the baby is born.

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