851 P.2d 776 (1993)
In 1984 Crispina Calvert underwent a hysterectomy that left her ovaries capable of producing eggs.1 She and her husband Mark desired a child genetically related to both of them.2 In 1989 Anna Johnson, a licensed vocational nurse who had previously given birth to a daughter, learned of Crispina's situation from a coworker and offered to serve as a surrogate.3
On January 15, 1990, Mark, Crispina, and Anna signed a written contract providing that an embryo created from Mark's sperm and Crispina's egg would be implanted in Anna, who would carry the child to term and relinquish all parental rights to the Calverts upon birth.4 In exchange the Calverts agreed to pay Anna $10,000 in installments, with the final payment due six weeks after birth, and to purchase a $200,000 life insurance policy on Anna's life.5 The zygote was implanted on January 19, 1990, and an ultrasound confirmed Anna's pregnancy less than a month later.6
During the pregnancy relations between the parties deteriorated. Anna felt the Calverts were not providing sufficient attention or obtaining the required insurance policy in a timely manner.7 In July 1990 Anna demanded the balance of the payments or she would refuse to relinquish the child.8 The following month the Calverts filed suit in superior court seeking a declaration that they were the legal parents of the unborn child.9 Anna filed her own action to be declared the mother, the cases were consolidated, and the parties agreed to the appointment of a guardian ad litem for the child.10
The child was born on September 19, 1990.11 Blood samples taken from Anna and the child excluded Anna as the genetic mother.12 The parties stipulated that Mark and Crispina were the genetic parents.13 After a trial in October 1990 the superior court ruled that the Calverts were the child's genetic, biological, and natural parents, that Anna had no parental rights, that the surrogacy contract was enforceable, and that Anna was not entitled to visitation.14 Anna appealed. The Court of Appeal for the Fourth District, Division Three, affirmed the judgment.15 The Supreme Court of California granted review.16
Whether the woman whose egg was fertilized is the natural mother of the child under the California Uniform Parentage Act when the gestational role is performed by a different woman pursuant to a surrogacy agreement?17
Under the Uniform Parentage Act, a parent and child relationship may be established by proof of having given birth to the child or under the Act. When genetic consanguinity and giving birth do not coincide in one woman, the woman who intended to procreate the child that she intended to raise as her own is the natural mother.18
Yes. Crispina Calvert provided the egg that was fertilized with Mark Calvert's sperm and resulted in the birth of the child, while Anna Johnson performed only the gestational function under the January 15, 1990 contract and had no genetic relationship to the child.19 The trial court found that Anna had no genetic relationship to the child, a finding not challenged on appeal, and the parties stipulated that Mark and Crispina were the genetic parents.20 Because the two aspects of motherhood are separated, the intent of Crispina and Mark to bring about the birth of a child they would raise as their own establishes Crispina as the natural mother under the Act.21
Crispina Calvert is the natural mother of the child.22
Related opinions on this issue
Justice Kennard concurs in the judgment and in the opinion of the court.23 She writes separately to emphasize that the decision in this case is limited to the facts presented.24 The court does not decide whether a surrogacy contract would be enforceable in a case in which the surrogate is the genetic mother of the child.25
That issue is not before the court.26 She also emphasizes that the decision does not mean that a gestational surrogate has no rights.27 The surrogate may have rights to visitation or other contact with the child, depending on the circumstances.28
In this case, the trial court declined to award Anna any visitation rights.29 That decision is not before the court.30
Justice Arabian concurs in the judgment and in the opinion of the court.31 He writes separately to express his view that the decision in this case is consistent with the public policy of this state to encourage and support the institution of marriage and the family.32 The surrogacy contract in this case was entered into by a married couple who were unable to have a child without the assistance of a surrogate.33
The contract allowed them to have a child that is genetically related to both of them.34 The enforcement of the contract furthers the public policy of this state.35 He also agrees with the court that the decision in this case does not mean that gestational surrogates have no rights.36
The rights of a gestational surrogate must be determined on a case-by-case basis, taking into account all the circumstances of the particular case.37
Whether a surrogacy contract providing for payment to the gestational mother and relinquishment of her parental rights violates the public policy of California as embodied in Penal Code section 273 or the adoption statutes?38
Penal Code section 273 prohibits payment for consent to adoption of a child. Adoption statutes reflect policies against payment for relinquishment of parental rights. A gestational surrogacy contract that compensates the surrogate for services in carrying the child to term rather than for relinquishment of rights does not violate those policies when the surrogate is not the genetic mother.39
No. The January 15, 1990 contract provided that Anna Johnson would be paid $10,000 for carrying the child to term and relinquishing the child to the Calverts upon birth, with payments due even if she miscarried or the child was stillborn, and the payment was not contingent upon relinquishment of parental rights.40 Anna was not the genetic mother, and the contract involved voluntary relinquishment after she was represented by counsel, distinguishing it from adoption arrangements where the birth mother is also the genetic mother.41
The surrogacy contract does not violate public policy and is enforceable.42
Related opinions on this issue
Justice Arabian concurs in the judgment and in the opinion of the court. He writes separately to express his view that the decision in this case is consistent with the public policy of this state to encourage and support the institution of marriage and the family. The surrogacy contract in this case was entered into by a married couple who were unable to have a child without the assistance of a surrogate.
The contract allowed them to have a child that is genetically related to both of them. The enforcement of the contract furthers the public policy of this state.
Whether a determination that the genetic mother is the child's natural mother deprives the gestational mother of any constitutionally protected liberty interest in the companionship of the child?43
A woman who voluntarily agrees to gestate and deliver a child for a married couple that supplies the zygote and intends to raise the child as their own is situated differently from a natural mother. The determination that she is not the legal natural mother does not violate substantive due process, privacy, or procreative freedom when she has no parental rights under state law.44
No. Anna Johnson voluntarily entered into the surrogacy contract, was represented by counsel, and was paid for her services, and the determination that Crispina Calvert is the natural mother means Anna possesses no parental rights to the child under California law.45 Society has not traditionally protected the right of a woman who gestates a baby pursuant to an agreement with a couple who supply the zygote and intend to raise the child as their own. Any liberty interest Anna might assert would necessarily detract from the parental bond enjoyed by the natural parents.46
The determination does not deprive the gestational mother of a constitutionally protected liberty interest.47
Whether the parties' intentions as expressed in the surrogacy agreement may be considered in determining maternity under the Uniform Parentage Act when both women have presented acceptable proof of a mother-child relationship?48
When two women each have presented acceptable proof of maternity under the Uniform Parentage Act, the parties' intentions as manifested in the surrogacy agreement may be considered because the agreement is not inconsistent with public policy. The woman who intended to procreate the child is the natural mother.49
Yes. Both Anna Johnson, by giving birth, and Crispina Calvert, by genetic relationship, presented acceptable proof of a mother and child relationship under the Act, but the January 15, 1990 contract expressed the parties' intention that the child would be taken into the Calverts' home as their own child, and but for the Calverts' acted-on intention the child would not exist.50 The agreement is not on its face inconsistent with public policy, as it compensates for services rather than for relinquishment of rights in violation of Penal Code section 273.51
The parties' intentions as expressed in the surrogacy agreement may be considered in determining maternity.52
Related opinions on this issue
Justice Kennard concurs in the judgment and in the opinion of the court. She writes separately to emphasize that the decision in this case is limited to the facts presented. The court does not decide whether a surrogacy contract would be enforceable in a case in which the surrogate is the genetic mother of the child.
That issue is not before the court. She also emphasizes that the decision does not mean that a gestational surrogate has no rights. The surrogate may have rights to visitation or other contact with the child, depending on the circumstances of the particular arrangement.
In this case, the trial court declined to award Anna any visitation rights. That decision is not before the court.