The legal steps required to finalize parental rights in an artificial insemination surrogacy arrangement vary significantly from state to state. It is important to remember that from a contractual perspective, the surrogacy contract acknowledges that the surrogate is not the legal mother of any child born to her. In addition, the contract indicates that the surrogate (and her husband, if any) agree not to form, nor attempt to form, a parent-child relationship with any child born pursuant to the contract. Thus, the surrogate and her husband contractually agree that the Intended Parents are held out as the sole legal parents prior to the conception of the child.

Despite these explicit contract provisions, the surrogate mother’s biological and genetic connection to the child necessitates the placement of her name on the original birth certificate in many states. In such cases, a Judgment of Paternity is obtained, either pre- or post-birth, to declare the Intended Father the biological and legal father of the child. This document allows the hospital and local Department of Vital Statistics to place the name of the Intended Father on the original birth certificate along with the birth mother. Thereafter, the Intended Mother completes a Step-Parent Adoption in the county where the Intended Parents reside.

The Step-Parent Adoption process is generally straight-forward and completed within three to six months of the birth of your baby. First, a social worker from the local Department of Children’s Services is assigned to review the file and approve the Step-Parent Adoption. During this process, the Surrogate Mother signs a final consent decree to formally terminate her parental relationship to the child. At the final Step-Parent Adoption hearing, the Family Law Judge signs an Adoption Decree ordering the birth certificate amended to properly reflect the Intended Mother’s name as the natural and legal mother. The original birth certificate is sealed and a new one is issued with the names of both of the Intended Parents. This re-issued birth certificate appears as an original (i.e., it is not otherwise marked or stamped "amended"), and only the re-issued version is made available to the public. The entire birth certificate file as well as the Step-Parent Adoption file is deemed a closed, confidential file.

As state statutes and case law become more sophisticated with respect to surrogacy, it is hoped that more states will follow the guidelines of gestational surrogacy in the procurement of a Judgment of Maternity & Paternity prior to the birth of a child. In doing so, the provisions of the surrogacy contract are upheld in naming the Intended Parents the legal parents of the child to the exclusion of the surrogate and her husband. California courts, which have long been trailblazers with respect to surrogacy legal developments, have opened the door to these unique legal proceedings.

It is important to understand that no California court has specifically upheld an artificial insemination (traditional surrogate) contract. As a result, there is always some legal risk with respect to entering into a surrogacy arrangement. The law regarding the enforceability of artificial insemination agreements is currently unclear and unsettled. However, the California Court of Appeal decision in Buzzanca v. Buzzanca has been used to extend the same protections afforded in gestational surrogate arrangements to traditional surrogacy. Namely, the courts will honor the intent of the parties, as set forth in the California Supreme Court opinion of Johnson v. Johnson, to declare the Intended Parents the legal parents regardless of their genetic or biological connection to the child(ren) born pursuant to their surrogacy arrangement. The key to the holding in Buzzanca is that the Court acknowledged that the Intended Parents should be deemed the legal parents because they were personally responsible for setting the medical procedures in motion which created their child, analogizing the medical procedures to a natural conception.

Since the ruling in Buzzanca, many Intended Parents matched with AI surrogate mothers have been successful in finalizing their parental rights through a pre-birth Judgment of Maternity and paternity. The original birth certificate is issued with the names of the Intended Parents, with some pregnancy and other statistical information of the surrogate. The advantages of this approach are numerous. First, the parental rights of the surrogate (and her husband) are terminated prior to the birth of the child. Second, the Intended Mother avoids the time-consuming Step-Parent adoption procedures after the birth of the child. Finally, insurance issues and other financial documents are more easily processed because both parents placed on the birth certificate at the time of the birth without waiting for an amended birth certificate. Perhaps the most significant aspect of the Buzzanca case is the elimination of the disparate treatment and protections which previously existed between Intended Parents who utilized gestational surrogacy and those that chose traditional surrogacy. While this unique proceeding is currently only available in California courts, it is hoped that other states will continue to look to California’s leadership and follow the guidelines of uniformly processing pre-birth legal judgments.