As a surrogacy agency in Los Angeles and other large cities around the country, our firm is faced from time to time with complicated legal situations that have to be sorted out to start the surrogacy process on the right footing.

This completely fictional story blends an immigration case with a surrogacy situation where both intended parents die before the pregnancy of the surrogate mother reaches its term. The immigration status of the surrogate mother would make such a situation very complex. Any legit surrogacy agency would conduct a full background check on the surrogacy candidate before advising the intended parents to enter into a contractual relationship with the surrogacy candidate, so that the situation described in this fictional story would be extremely unlikely to occur.

But for the purpose of telling an entertaining story, we are interested in what could happen to the child conceived by the surrogate mother when the case goes to courts.

IMPORTANT DISCLAIMER: This is a fictional story. Any similitude with existing cases would be totally fortuitous. Moreover, Los Angeles Surrogacy is neither a law firm nor an attorney, and we do not give legal advice to anyone. This story is solely presented for entertainment purposes. It may not be used either as legal advice or as providing the basis for a legal strategy. Under all circumstances, readers must refer to a qualified attorney to obtain legal advice.

The story of Rosa G., an undocumented immigrant from a country in Latin America, began when she decided to become a surrogate mother in California for intended parents Joseph and Mary B. Unbeknownst to the couple and the surrogacy agency, Rosa had procured false Social Security papers to hide her true legal status. As her pregnancy progressed, Rosa found herself in a precarious situation when she was apprehended by immigration enforcement authorities.

Six months into her pregnancy, Rosa received a court date to adjudicate her legal status in the United States. However, due to pregnancy complications, her doctor advised her to remain on bed rest, making it impossible for her to attend the hearing. Consequently, the court rescheduled her hearing for three months after her expected delivery date.

Rosa successfully carried her pregnancy to term and gave birth to a healthy baby. However, tragedy struck when Joseph and Mary B., the intended parents, were killed in a car accident just days before the delivery. With no relatives stepping forward to claim custody of the baby, Rosa found herself in an even more complicated situation.

The immigration court now faced a unique conundrum. While Rosa’s legal status remained uncertain, her baby, born on U.S. soil, automatically became a U.S. citizen by virtue of the 14th Amendment. The best interests of the child would also be considered by a Family Law court and probably weigh on Rosa’s immigration case.

Rosa’s situation raises several questions for the courts:

1. How should the court handle Rosa’s immigration case, given her role as the biological mother of a U.S. citizen child? Would the court consider this factor when deciding whether to grant her legal status or deport her?

As the court prepares to hear Rosa’s case, both sides would present their legal arguments, citing precedents and exploring the implications of her status as “the biological mother of a U.S. citizen child.”

Legal Arguments in Favor of Rosa:

1. Cancellation of removal: Rosa’s attorney could argue for a “cancellation of removal” under Section 240A(b) of the Immigration and Nationality Act (INA). This provision allows undocumented immigrants who have been in the U.S. for at least ten years, possess good moral character, and can demonstrate that their removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S. citizen relative, to have their removal canceled and be granted legal status. In Rosa’s case, her U.S. citizen child could be considered a qualifying relative.
2. Best interest of the child: The court might also consider the best interest of the child, as established in family law cases such as Troxel v. Granville (2000). This principle emphasizes that the well-being of a child should be of paramount concern in legal proceedings. In Rosa’s case, separating her from her U.S. citizen child could be viewed as detrimental to the child’s emotional and psychological well-being, especially given the absence of other potential guardians.

Legal Arguments Against Rosa:

1. Fraudulent procurement of documents: The prosecution could argue that Rosa’s use of false documents to participate in the surrogacy process demonstrated a disregard for U.S. immigration laws. Under INA Section 212(a)(6)(C)(i), individuals who commit fraud or misrepresent facts to obtain immigration benefits can be deemed inadmissible and face removal proceedings.
2. Surrogacy contract: The prosecution could also argue that, despite the tragic circumstances, the original surrogacy contract specified that Rosa was not the intended parent of the child. Although the intended parents had passed away, the contract might still be considered legally binding, and the child’s custody could be transferred to the state or an adoptive family.

2. With the intended parents deceased and no relatives coming forward to claim custody, who would take care of the baby if Rosa were to be deported? Would the state assume responsibility for the child, or would the court consider alternative arrangements, such as adoption or foster care?

California State’s rules, regulations, and laws regarding child custody and care will play a crucial role in determining the outcome.

In California, when a child is left without a legal guardian or parent, the state has a responsibility to ensure the child’s welfare. The California Department of Social Services and the county child welfare agencies work together to find a suitable placement for the child.

In Rosa’s case, the court would first attempt to find any relatives or close friends who might be willing and able to take care of the baby. This process, known as “kinship care,” prioritizes placing the child with someone they have an existing relationship with or someone related by blood or marriage. However, with no relatives coming forward to claim custody, the court would need to consider alternative arrangements.

Foster care would be the next option the court could explore. In this scenario, the baby would be placed with a licensed foster family who would provide a temporary home while a more permanent solution was sought. Foster families in California are subject to background checks, training, and ongoing support to ensure the child’s well-being.

Another potential solution for the court would be adoption. If Rosa were deported and no relatives came forward, the court could terminate her parental rights, making the child legally eligible for adoption. Adoption would provide the baby with a permanent home and legal guardians. California has a rigorous adoption process, which includes background checks, home studies, and post-adoption monitoring to ensure the child’s safety and well-being.

3. Would the court take into account the emotional bond that may have developed between Rosa and the baby during the pregnancy? Given the circumstances, would it be in the best interest of the child to remain with Rosa, despite her immigration status?

The best interest of the child remained the central focus, prompting the court to examine if keeping the child with Rosa, despite her immigration status, would be the most beneficial course of action.

Legal Arguments in Favor of Rosa and the Child Remaining Together:

1. Emotional bond and attachment: Research has shown that the emotional bond between a mother and child, even during pregnancy, can have a significant impact on the child’s development and well-being. California courts have acknowledged the importance of attachment in child custody cases, as seen in In re Marriage of Brown and Yana (2006), where the court considered the emotional bond between parents and children when making custody decisions. Rosa’s attorney could argue that separating the child from Rosa would disrupt this crucial attachment and potentially harm the child’s emotional and psychological well-being.
2. Best interest of the child: California courts have consistently applied the “best interest of the child” standard in custody cases, as outlined in California Family Code § 3011. The factors considered in determining the child’s best interest include the child’s health, safety, welfare, and the nature and amount of contact with both parents. Rosa’s attorney could argue that keeping the child with Rosa is in the child’s best interest, given the strong emotional bond and the absence of other suitable guardians.

Legal Arguments Against Rosa and the Child Remaining Together:

1. Legal status and stability: The court may consider the impact of Rosa’s uncertain legal status on the child’s stability and well-being. In the case of In re Marriage of Burgess (1996), the California Supreme Court emphasized the importance of stability in a child’s living situation. The prosecution could argue that Rosa’s potential deportation would disrupt the child’s stability and that a more secure environment, such as adoption or foster care, would be in the child’s best interest.
2. Surrogacy contract: While the emotional bond between Rosa and the child is a relevant factor, the court may also consider the original surrogacy contract. In Johnson v. Calvert (1993), the California Supreme Court upheld the enforceability of a surrogacy contract and focused on the intended parents’ rights. The prosecution could argue that the surrogacy agreement specified that Rosa was not the intended parent, and the child’s best interest would be served by adhering to the contract’s original intent, even in light of the tragic circumstances.

In this particular case, while the original intent of the surrogacy contract may be informative, it might not provide a clear solution for the court. With Rosa having no relatives in the U.S. and John and Mary B.’s relatives not coming forward to accept custody of the child, the court would need to look beyond the surrogacy contract to determine the best course of action.

Given the unique circumstances and the lack of a clear custodian for the child, the court may focus on the best interest of the child principle as the guiding factor in deciding the child’s future. This principle is paramount in child custody cases, and the court would consider the child’s health, safety, welfare, and emotional well-being when making its decision.

In this scenario, the most likely outcome would involve a thorough evaluation of Rosa’s suitability as a guardian for the child, despite her immigration status. The court may also explore other options, such as foster care or adoption, to ensure the child’s well-being and stability. In the end, the court’s decision would hinge on the specific facts of the case, the emotional bond between Rosa and the child, and the potential long-term implications of each option for the child’s best interest.

The outcome of this case could be influenced by a variety of factors, including the discretion of the judge, the jurisdiction, and the arguments presented by both sides. As such, predicting the exact outcome is difficult, but the best interest of the child will remain the central focus of the court’s decision-making process.

4. Could Rosa’s act of procuring false documents to participate in the surrogacy process impact the court’s decision about her immigration case or the custody of the child?

Rosa’s act of procuring false documents to participate in the surrogacy process could definitely have significant implications for both her immigration case and the custody case. The court would have to weigh the implications of her actions against the best interest of the child.

Impact on Immigration Case:

Rosa’s use of false documents to secure participation in the surrogacy process could be seen as fraud or willful misrepresentation, as outlined in the Immigration and Nationality Act (INA) Section 212(a)(6)(C)(i). This provision states that an individual who has committed fraud or willfully misrepresented material facts to obtain immigration benefits is inadmissible. As a result, Rosa could face removal proceedings and potentially be barred from re-entering the United States.

However, it is essential to note that the court may consider the specific circumstances of Rosa’s case, such as her reasons for procuring the false documents and the potential impact on her U.S. citizen child. In Matter of H-R- (BIA 1996), the Board of Immigration Appeals held that an alien’s use of false documents to obtain entry to the United States may be forgiven in some cases if the false claim was made due to a “reasonable fear of persecution.”

Impact on Custody Case:

In the custody case, the court’s primary focus would be the best interest of the child. While Rosa’s actions in obtaining false documents could be seen as a demonstration of poor moral character, the court would also consider other factors, such as the emotional bond between Rosa and the child, the child’s safety and welfare, and the availability of suitable alternative guardians.

In In re Angelia P. (1981), the California Supreme Court held that a parent’s lifestyle, character, or moral lapses should not be the sole basis for determining custody unless it directly impacts the child’s welfare. Thus, the court may consider Rosa’s actions but would ultimately prioritize the child’s best interest when making a custody decision.

Conclusion of this story

This fictional tangled web of surrogacy and immigration law would leave the courts with difficult decisions to make..

This fictional story is extremely unlikely to occur, however.

Surrogacy agencies like Los Angeles Surrogacy pay extreme attention to the quality of the surrogacy candidate presented to intended parents. All candidates receive a full background check, and it is more than likely that the immigration situation of the main character of this story, Rosa G., would have been discovered in the course of the background check, way before the candidate would even have been presented to the intended parents.

This entertaining fiction highlights the complex intersection of these legal areas and underscores the need for comprehensive legislation to address the unique challenges faced by those involved in surrogacy arrangements, particularly in cases where immigration status adds a layer of complications.