In today’s world, families are built in many ways — through assisted reproduction, surrogacy, co-parenting agreements, and more. Advances in reproductive technology and evolving definitions of “family” have given individuals and couples new paths to parenthood. But these new paths also raise a critical question:
Who is a legal parent under California law?
The answer isn’t always intuitive. The legal distinction between sperm donors, surrogates, and co-parents carries enormous implications for custody, support, and parental rights. Without clear agreements and proper legal steps, people who intended to be parents can find themselves without rights — and donors or surrogates can find themselves unexpectedly entangled in parental disputes.
This guide explains the legal framework in California for establishing parentage in nontraditional family arrangements, and the key differences among sperm donors, surrogates, and co-parents.
What Is “Legal Parentage” and Why Does It Matter?
Before we dive into the specific roles, we must define the ultimate goal: legal parentage.
Legal parentage is the formal, court-recognized relationship between a parent and a child. This status is the foundation of all parental rights and responsibilities. It grants you the right to:
- Make legal, medical, and educational decisions for your child.
- Have custody and visitation.
- Be listed on the child’s birth certificate.
- Allow your child to inherit from you and receive benefits (like Social Security) through you.
It also imposes the legal responsibility to:
- Provide financial support (child support).
- Provide health insurance and care.
In California, parentage is not based only on biology. The Uniform Parentage Act (UPA) recognizes that parentage can be established through various means, including birth, marriage, adoption, signing a Voluntary Declaration of Parentage, or by a court judgment. In the world of assisted reproduction, the most powerful concept is intent.
Understanding these roles is about understanding who intends to be a parent—and who intends not to be.
Sperm Donors: The Intent and Consent Standard
A sperm donor is generally not a legal parent in California, provided the donation meets certain legal and procedural requirements.
California Family Code §7613
Under §7613, a man who provides sperm for assisted reproduction through a licensed physician or sperm bank is not a legal father, unless he and the intended parent(s) have a written agreement stating otherwise before conception.
This rule protects both sides:
- Donors are shielded from future child support or custody claims.
- Intended parents (single or partnered) are protected from unwanted interference by the donor.
When a Donor May Be Considered a Parent
Despite the statute, exceptions exist. Courts may recognize parental rights if:
- The child was conceived through at-home insemination (not via a licensed physician), and
- The donor developed a parental relationship with the child or intended to parent jointly.
In California, the law creates a bright-line distinction based on how the donation is made.
The “Clinic Donor” (Anonymous or Known)
This is the most legally secure path. California Family Code § 7613(b) is the “gold standard” for donor law. It states that if a man provides semen to a licensed physician or a sperm bank for use in assisted insemination of a woman other than his spouse, he is legally treated as if he were not the natural father of the child.
- What it means: This statute legally severs the donor’s parental rights and responsibilities from the moment of donation. He has no right to custody or visitation. He also has no obligation to pay child support. The law effectively makes him a legal stranger to the child.
- Why it’s crucial: Using a licensed physician or clinic acts as a legal firewall. It provides clear, irrefutable evidence that this was a medical procedure based on a donor agreement, not a personal arrangement that could later be confused with a co-parenting relationship.
The “At-Home Donor” (Known Donors without a Clinic)
This is where families get into legal trouble. When a known donor provides sperm directly to the intended parent(s) for an “at-home” or “DIY” insemination without the involvement of a physician, the protections of § 7613(b) do not apply.
- The Danger: Without this legal shield, the donor can be seen as a “presumed parent” under other parts of the UPA. He could later petition the court for custody and visitation. Conversely, the parent(s) or the county could pursue him for child support.
- The Solution: A Written Donor Agreement: If you choose to use a known donor outside of a clinic, a comprehensive Sperm Donor Agreement is non-negotiable. This written contract must be executed before conception. It clearly outlines the intent of all parties:
- The donor relinquishes all parental rights and responsibilities.
- The intended parent(s) accept all parental rights and responsibilities.
- The parties agree the donor will not be named on the birth certificate and will not provide child support.
- It clarifies any understanding about future contact, photos, or communication, while firmly stating this contact does not create a parental relationship.
While an agreement is a powerful defense, it’s not as ironclad as using a physician. The safest legal route is always through a licensed clinic.
Key Takeaway: A donor gives genetic material but surrenders parental rights. This intent must be legally documented.
Case Example:
In Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, the court found a sperm donor to be the legal father because the insemination occurred privately without a doctor’s supervision, and the donor maintained a relationship with the child. This case remains a cautionary tale — intent and procedure matter.
Best Practices for Donors and Recipients
- Always use a licensed physician or fertility clinic for sperm donation.
- Execute a written sperm donor agreement before conception, clarifying that the donor has no parental rights or obligations.
- If the donor is intended to co-parent, formalize this intent through a co-parenting or parentage agreement before the procedure.
Surrogates: Distinguishing Gestational and Traditional Surrogacy
Surrogacy creates another layer of legal complexity. California recognizes two types of surrogacy, each with distinct legal implications.
Traditional Surrogacy
- The surrogate uses her own egg, making her the biological mother.
- The pregnancy is achieved through insemination with sperm from the intended father or donor.
- Because the surrogate is genetically related to the child, she is presumed to be the legal mother until court action establishes otherwise.
Traditional surrogacy carries higher legal risk — for both intended parents and the surrogate — because it involves terminating the surrogate’s parental rights after birth. For this reason, it is now less common in California.
Gestational Surrogacy
- The surrogate carries a pregnancy using an embryo created from the intended parent(s)’ or donors’ gametes.
- The surrogate has no genetic connection to the child.
- California law allows intended parents to be declared legal parents before birth through a pre-birth parentage order.
California Family Code §7960–§7962
California statutes strictly regulate gestational surrogacy:
- The surrogacy agreement must be signed and notarized before embryo transfer.
- Each party (intended parent(s) and surrogate) must have separate, independent legal counsel.
- The agreement must clearly state intent regarding parentage and custody.
If these requirements are met, the court will issue a judgment of parentage, ensuring the intended parents are listed on the birth certificate from the moment of birth — not the surrogate.
Why Legal Compliance Matters
Failure to follow the statutory requirements can lead to disputes over parentage, as seen in cases where informal or international surrogacy arrangements left intended parents without clear legal status.
Key Takeaway: A gestational surrogate intends to carry a pregnancy but never intends to be a parent. Her non-parentage is secured by a contract and a court judgment before the child’s birth.
Co-Parents: The Intent to Share Parentage
A co-parent is an adult who intends to be a full, legal parent to a child, regardless of their biological or gestational connection. This is the model used by most same-sex couples, many platonic partners, and other multi-parent families.
Unlike donors or surrogates who are legally “carved out” of parentage, the goal for co-parents is to be legally “carved in.” The legal challenge is securing the parentage of the non-biological or non-gestational parent.
California also permits recognition of three or more legal parents when necessary to protect a child’s best interests (Family Code §7612(c)) — a reflection of modern family dynamics.
In California, there are several pathways to secure this parentage.
1. Marriage and the Marital Presumption
This is the simplest path. If a couple is married (or in a registered domestic partnership) when a child is born through assisted reproduction, the non-biological/non-gestational spouse is presumed to be a legal parent.
- Example: A lesbian couple is married. One spouse carries the child using donor sperm. Her wife is, by law, the child’s other legal parent. Her name goes on the birth certificate at the hospital.
2. Voluntary Declaration of Parentage (VDOP)
This is a simple, powerful form that has the same legal weight as a court judgment. Originally for unmarried heterosexual couples, California law has expanded the VDOP to be a critical tool for same-sex couples.
An unmarried, non-biological parent (like the non-gestational mother in a lesbian couple) can sign a VDOP at the hospital to establish their full legal parentage.
3. Parentage Judgment (The “Stepparent” or “Second-Parent” Adoption)
This is the most secure, “bulletproof” method for establishing co-parentage. A Second-Parent Adoption (or a stepparent adoption if the couple is married) is a court process where the non-biological parent formally adopts the child.
- Why it’s the gold standard: While a marital presumption or VDOP is excellent in California, it may not be respected by other states or countries. An adoption decree is a final court judgment that must be recognized in all 50 states under the “Full Faith and Credit” clause of the U.S. Constitution. It severs the rights of any sperm donor and makes the co-parent a full legal parent, forever.
4. The Co-Parenting Agreement
While the methods above establish the existence of parentage, the Co-Parenting Agreement defines how that parentage will be exercised. This is a critical document for co-parents who are not in a romantic relationship. It’s the roadmap for raising the child, outlining:
- Custody and visitation schedules.
- Financial responsibilities (support, education, healthcare).
- Decision-making for religion, schooling, and medical care.
- Dispute resolution (what happens if you disagree).
Key Takeaway: A co-parent intends to be a legal and functional parent. This intent must be formalized through a legal process like marriage, a VDOP, or an adoption to be secure.
Comparing Legal Parentage Across Categories
| Category | Biological Connection | Legal Parent by Default? | How to Establish or Avoid Parentage |
| Sperm Donor | Yes (genetic) | No, if donation through physician & written agreement | Execute sperm donor contract; use medical professional |
| Traditional Surrogate | Yes | Yes, until rights are terminated | Post-birth adoption or court judgment transferring parentage |
| Gestational Surrogate | No | No, if compliant surrogacy agreement executed | Obtain pre-birth parentage judgment |
| Co-Parent | Maybe | Yes, if intent & consent shown | Written co-parenting agreement or parentage order |
Legal Risks of Informal or DIY Arrangements
Many modern families attempt informal donor or surrogacy arrangements without legal counsel, often to save money or maintain privacy. Unfortunately, these informal methods often lead to serious legal disputes later.
Common Pitfalls
- At-home insemination without a licensed physician (voiding donor protections).
- Surrogacy agreements signed after embryo transfer (invalid under §7962).
- Co-parenting without written consent or documentation of intent.
- Unclear financial arrangements that later resemble “commercial surrogacy,” which is strictly regulated.
California law protects intentional families — but only when procedures and paperwork are properly handled.
Conclusion
In the world of California modern family building, biology is not destiny. The single most important factor is intent.
- A Sperm Donor intends not to be a parent, an intent secured by a clinic or a legal agreement.
- A Surrogate intends not to be a parent, an intent secured by a GSA and a pre-birth judgment.
- A Co-Parent intends to be a parent, an intent secured by a parentage judgment, adoption, or declaration.
These legal distinctions are not flexible. Leaving your parental rights to an “understanding” is a gamble with the highest possible stakes.
Before you embark on your family-building journey, your first and most important call should be to a California family law attorney who specializes in parentage and assisted reproduction. By proactively establishing clear, legally-binding intent, you give your child the greatest gift of all: a secure, protected, and unquestioned legal family.
Whether you’re a sperm donor, a surrogate, or an intended co-parent, the difference between legal security and legal vulnerability often comes down to timing, paperwork, and professional guidance.
📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.
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*Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance on your case, contact a licensed California family law attorney.
