The Legal Rights of Modern Reproduction

Nowadays, building a family can look different than it did years ago. With advances in modern medicine, there are options for those who either cannot conceive or prefer not to do so the traditional way. With IVF, donor sperm and eggs, frozen embryos, and surrogacy, more people than ever, including LGBTQ+ couples, single parents by choice, or those facing infertility, are pursuing modern routes to parenthood.

However, these options come with their own set of legal rights. These processes can involve a lot of legal complexities. Understanding the legal landscape with the help of Andrew J. Botros, APC can help you navigate this process with greater peace of mind.

The Rise of Assisted Reproduction in California

In 2021, one out of every 42 babies was born through assisted reproductive technology (ART). This amounted to 97,128 babies being born that year through ART treatments. In San Diego, in vitro fertilization (IVF) costs can range from $5,000 to $15,000 per cycle.

Despite how common ART has become, the laws governing it remain patchwork and often incomplete.

Embryo Disputes

Embryo disputes can be some of the most emotionally charged situations when it comes to modern reproduction. This typically happens when a couple creates embryos through IVF, then separates or divorces before the embryos are used. One party may want to use the embryos to have a child, while the other may not.

Unfortunately, it is not uncommon for the courts to rule in favor of the parent who opposed proceeding with IVF, so they do not have to be forced into parenthood. Many clinics require couples to sign forms that often state what should be done with the embryos in various situations, such as death or divorce, but these may or may not be legally binding.

To ensure your plans are not changed in the future, create a legally reviewed embryo disposition agreement beyond the paperwork that you complete at the facility.

Surrogacy

California allows for both gestational (where the surrogate carries a child genetically unrelated to her) and traditional (where the surrogate uses her own egg) surrogacy arrangements. Courts routinely uphold pre-birth parentage orders, and intended parents can be listed on the birth certificate from day one. However, surrogacy still comes with legal risks.

If the contracts are not clearly written or don’t meet legal requirements, a parent’s legal rights may not be recognized. Families may also encounter challenges if the surrogate lives in another state. Additionally, disputes over termination, medical care, or embryo transfer decisions can arise, especially without a clearly drafted contract.

Donor Rights

One of the most confusing areas in reproductive law involves sperm and egg donors, especially when informal agreements are made. In California, anonymous sperm and egg donors typically have no parental rights or responsibilities.

However, known donors may be considered legal parents if no written contract exists, especially if they participate in raising the child. Even if a donor signs a document that waives their rights, if they participate in later raising the child, they may be entitled to legal rights.

If you are using a known donor, it is recommended that you have a formal written agreement reviewed by a lawyer so you do not risk custody and support issues later on.

What You Can Do to Protect Your Rights

San Diego is home to several prominent fertility clinics and surrogacy agencies, such as San Diego Fertility Center and Reproductive Partners Medical Group. However, even with local assistance, your contract needs to reflect California legal standards, not just clinic preferences. Implementing the following legal protections can help you avoid disputes down the road:

• Draft a legally binding embryo disposition agreement before IVF.
• Use a surrogacy contract that complies with California law.
• For known donors, create a clear, notarized agreement that lays out expectations.
• Obtain pre-birth parentage orders in surrogacy cases to avoid future litigation.
• Consult a family law attorney familiar with ART in San Diego County courts.

About Andrew J. Botros, APC

At Andrew J. Botros, APC, we understand that modern family building is both deeply personal and legally complex. Our experienced team, including attorneys Andrew J. Botros and Matthew S. Blado, offers trusted guidance in reproductive law, surrogacy contracts, and family formation disputes. With deep roots in San Diego and a strong record in complex family law matters, we help our clients protect what matters most.

FAQs

Q: Who Legally Owns Frozen Embryos or Eggs After a Divorce?

A: Ownership depends on the agreement signed with the fertility clinic or in court. However, California courts often side with the party who does not want the embryos used to avoid forced parenthood. Without a clear legal contract, disputes can be lengthy and emotionally draining. A legally binding embryo disposition agreement is crucial before beginning IVF.

Q: Can Both Parents Be on a Birth Certificate in a Surrogacy Agreement?

A: Yes, both parents can be on a birth certificate in a surrogacy agreement in California. Intended parents can obtain a pre-birth parentage order, which allows their names to be placed directly on the birth certificate regardless of genetic connection. This includes same-sex couples and single parents. Courts in San Diego are experienced with these cases, but having a properly executed surrogacy contract is key to ensuring legal recognition.

Q: What Happens if a Sperm or Egg Donor Later Wants Custody?

A: In California, anonymous donors typically have no legal rights or responsibilities. However, if the donor is known and no clear agreement exists, courts may consider them a legal parent, especially if they’re involved in the child’s life. Always formalize arrangements through a legally binding donor agreement to avoid future disputes or custody challenges.

Q: How Can I Protect My Parental Rights if I’m Not Biologically Related to the Child?

A: You can protect your rights through second-parent adoption, a parentage judgment, or a properly structured surrogacy or donor agreement. California prioritizes the intention to parent over biology, but courts still need legal documentation to confirm your status. This is especially important for LGBTQ+ families, single parents by choice, or co-parenting partners.

Contact Andrew J. Botros, APC Today

If you’re navigating the legal side of IVF, embryo freezing, surrogacy, or donor arrangements, the right legal planning can provide you with a secure and peaceful future. Contact Andrew J. Botros, APC for a consultation.

 

 

Feel Free to Contact Our Office with Any Questions

858-793-8884