Time to Birth a Surrogacy Law : State Legislature can no longer avoid this issue

Science has offered a new world to infertile couples, allowing a surrogate to give birth to a baby on their behalf. The process has brought hope and joy to many people, but in California the lack of regulation in the process needs to be corrected.

More than three years ago, the Legislature passed a law to regulate surrogacy. Gov. Pete Wilson vetoed that legislation, contending there had been too few disputed cases to make the law necessary. He should rethink that.

Last week, an appellate court in Santa Ana that has handled several surrogacies referred what it called its “most extraordinary” case to family court for a decision on a child support claim. The judges ruled the case did not belong in probate court. But they also pointed out it would be difficult to determine legally who is the biological father in the case, in which the donors of both egg and sperm were anonymous.

A month before the child was born, the husband, who had signed a surrogacy contract, filed for divorce. The wife received custody of the baby and sued for child support from her former spouse. The husband contended that until paternity was established in probate court, he should not have to support the baby.

The case appears akin to an adoption, which is one of society’s few reliable tools for dealing with the welfare of children at risk. The Santa Ana appeals court has consistently done a good job of keeping the interests of children paramount and backing commitments with the force of law. But in this case it noted the difficult legal questions and asked for legislative help.

Parents obviously have responsibilities to their children. But the Legislature should establish rules covering surrogate parents, much as laws now determine who is a biological or adoptive parent. Who owes what to whom in surrogacy cases needs to be spelled out. Judges should not have to make the law.