

Surrogacy & Child Custody Rights in California
Now, if a divorce takes place when the child hasn’t born or legal guardianship hasn’t been transferred to the biological parents, what happens to the child? Does the custody battle still take place or does the surrogate mother become the legal guardian?
Surrogate mothers
Surrogate mothers can become the legal guardian if they wish to during the parent’s divorce. Since California law requires them to sign legal documents, surrogate mothers are the legal parents till the child is born. In fact, till the time parental rights have been handled over to the biological parents, surrogate mothers can keep the child if they wish to. However, if the parental rights have been handed and the divorce takes place, then custody issues will be dealt in the usual way.
Biological parents
While it may seem that surrogate mothers have the upper hand during a divorce, it is not entirely true. Biological parents who want the child to stay with them should be aware of the legal rights in California. In California, intended parents can become legal guardians before the birth of the child. That includes same-sex couples as well. For biological parents who want the child to be with them should wait until the child is born. That way, at least the fear of the surrogate mother becoming the legal guardian won’t be there.
Conclusion
Surrogacy laws differs from state to state and California has its own set of surrogacy laws. It allows parents to establish parental rights before the child is born. However, in some cases a surrogate mother can also become the legal parent if she wants too. It is therefore important to consult a divorce lawyer first before signing any legal documents. An experienced lawyer can help decide who has the upper hand during a divorce – a surrogate or a biological parent.
Getting divorced in California can be complicated. Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.


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