FOOTNOTES
  1. See Johnson v. Calvert, 851 P.2d 776, 790 (Cal. 1993) (mentioning recent advances in reproductive technology); CHARLENE CANAPE, ADOPTION, 10 (1986) (discussing scientific advances made in prior decade); SUSAN L. COOPER & ELLEN S. GLAZER, BEYOND INFERTILITY 272-73 (1994) (stressing importance to infertile women of new reproductive technologies). See generally Stanley v. Illinois, 405 U.S. 645, 651 (1972) (stating that rights to conceive and raise one's children are essential, basic civil rights and far more precious than property rights).
  2. Johnson, 851 P.2d at 790; CANAPE, supra note 1, at 10; COOPER, supra note 1, at 272-73.
  3. See Genesis 16:2 (Revised Standard) (telling story of early use of surrogacy). Sarah said to Abraham, "Behold now, the Lord has prevented me from bearing children; go in to my maid; it may be that I shall obtain children by her." Id. Abraham did as his wife suggested. Id.
  4. See Johnson, 851 P.2d at 789 n.1 (describing gestational surrogacy as situation in which woman agrees to impregnation with another woman's fertilized egg).
  5. Id. at 777-78. See COOPER, supra note 1, at 8-10 (noting stress and sorrow attendant with infertility); Sheryl Ubelacker, Brave New Womb: Methods for Helping Infertile Couples, CHATELAINE, Aug. 1993, at 30 (pointing out ethical quandaries that can arise with new reproductive technology); Surrogacy's Perils, THE CHRISTIAN SCIENCE MONITOR, June 8, 1993, at 18 (worrying about impact of reproductive science).

  6. COOPER, supra note 1, at 273; KAREN LIPTAK, ADOPTION CONTROVERSIES 112 (1993).

  7. See Sharon Begley, The Baby Myth, NEWSWEEK, Sept. 4, 1995, at 41 (describing in vitro fertilization technique).
  8. COOPER, supra note 1, at 201; LIPTAK, supra note 6, at 112; Jan B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443, 1489 (1992).
  9. COOPER, supra note 1, at 201; LIPTAK, supra note 6, at 112; Singer, supra note 8, at 1489.
  10. LIPTAK, supra note 6, at 112.

  11. 851 P.2d 776 (Cal. 1993).
  12. Id. at 777-78.
  13. Id. at 782.

  14. See infra notes 21-35 and accompanying text (discussing California parentage cases decided prior to Johnson).

  15. See infra notes 39-80 and accompanying text (discussing Johnson facts and holding).
  16. See infra notes 81-98 and accompanying text (discussing effects of Johnson holding).

  17. See infra notes 99-135 and accompanying text (proposing alternative means of analysis for gestational surrogacy cases).

  18. Johnson, 851 P.2d 776, 782 n.10 (Cal. 1993).
  19. Erika Hessenthaler, Gestational Surrogacy: Legal Implications of Reproductive Technology, 21 N.C. CENT. L.J. 169, 169 (1995).
  20. See CAL. FAM. CODE, supra note 1, at 273, 306 (discussing traditional surrogacy).

  21. John Lawrence Hill, Exploitation, 79 CORNELL L. REV. 631, 642 (1994). California was the first state to judicially uphold the validity of a gestational surrogacy contract. Katheryn D. Katz, Ghost Mothers: Human Egg Donation and the Legacy of the Past, 57 ALB. L. REV. 733, 741 (1994).
  22. 537 A.2d 1227 (N.J. 1988).
  23. Id. at 1235-38.

  24. Id. at 1235.

  25. Id. at 1237-38.

  26. Id. at 1256.

  27. Id. at 1255-56.

  28. Id. at 1248.

  29. Id. at 1235.

  30. 284 Cal. Rptr. 18 (Ct. App. 1991).

  31. Id. at 21.

  32. Id. at 23. Some confusion existed as to the relief the surrogate sought. Id. at 23 n.4. Her petition prayed for custody, but her declaration indicated that she sought visitation as the intended parents had promised in the contract. Id.

  33. Id. at 23.

  34. Id. The court used three factors. Id. at 30. These were: the child's age; the extent of bonding with the parents, or potential bonding; and the ability of the natural parent or parents to provide adequate and proper care and guidance. Id.

  35. Id. at 21; In re Baby M., 537 A.2d 1227, 1235 (N.J. 1988).

  36. See In re Baby M., 537 A.2d at 1256 (suggesting that only genetic parents had parental rights).

  37. See Hessenthaler, supra note 19, at 169 (stating Johnson is first legal interpretation of gestational surrogacy contract).

  38. See Eric A. Gordon, The Aftermath of Johnson v. Calvert: Surrogacy Law Reflects A More Liberal View of Reproductive Technology, 6 ST. THOMAS L. REV. 191, 191 (1993) (declaring that California Supreme Court was first to decide that surrogacy contracts do not violate U.S. Constitution, state law or public policy).

  39. Johnson v. Calvert, 851 P.2d 776, 790 (Cal. 1993); CANAPE, supra note 1, at 10; COOPER, supra note 1, at 272-73.
  40. See M. Floyd Hall, Surrogacy Issue Has History of Controversy, THE MORNING CALL (Allentown), Jan. 22, 1995, at A1 (reporting surrogate who allegedly contracted herpes from semen donor and subsequently gave birth to severely disabled child); Martin Kasindorf, And Baby Makes Four: Johnson v. Calvert Illustrates Just About Everything That Can Go Wrong in Surrogacy Births, LOS ANGELES TIMES, Jan. 20, 1991, Magazine Section, at 10 (reporting that surrogate sued for custody after discovering that intended parent was transsexual and that an intended father accepted only one child after surrogate delivered twins); Judy Mann, A Happy Surrogacy Story, THE WASHINGTON POST, Aug. 7, 1991, at D3 (discussing woman in South Carolina who gave birth to her own grandchildren because her daughter was unable to carry twins).

  41. See Minor's Brief on the Merits, at 15 n.3, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (stating that states that have adopted Uniform Parentage Act have not dealt with these issues); Anna J. v. Mark C., 286 Cal. Rptr. 369, 370 (Ct. App. 1991) (stating that this was "case of first impression").
  42. Johnson, 851 P.2d at 777-78.

  43. Id. at 778.

  44. Id. A hysterectomy is a partial or total removal of the uterus. COOPER, supra note 1, at 315.

  45. Johnson, 851 P.2d at 778.

  46. Id. But see supra notes 35-36 and accompanying text (discussing traditional surrogacy). In a case of traditional surrogacy, the wife of the sperm donor is biologically unrelated to the child. See COOPER, supra note 1, at 273, 306 (discussing traditional surrogacy). In Johnson , the adoptive parents were the genetic parents and the surrogate mother was not a genetic parent. Johnson, 851 P.2d at 778. Hence, she was a gestational surrogate. See COOPER, supra note 1, at 273 (discussing gestational surrogacy); LIPTAK, supra note 6, at 112 (describing gestational surrogacy).

  47. Johnson, 851 P.2d at 778.

  48. Id. Mark Calvert learned that Anna had given birth to still-borns and had suffered miscarriages. Id.; see Trial Reporter's Transcript Vol. I at 786-87, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing that Anna testified that she believed the information regarding her two miscarriages and two still-births would remain private); see also Appellant's Petition for Review by the California Supreme Court at 12, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (stating that Anna had disclosed this information in writing to surgeon which Calverts selected to perform in vitro fertilization). See generally COOPER, supra note 1, at 36-37 (opining that intended parents should bear burden of adequate investigation of surrogate).
    Anna felt that the Calverts had not done enough to acquire a life insurance policy. Johnson, 851 P.2d at 778. The Calverts did not purchase a policy in Anna Johnson's name. Id. Anna also felt that the Calverts behaved callously when she went into premature labor.
    Id. But see Trial Reporter's Transcript at 1136, 1206, 1219, 1229, 1292, 1299, 1214-15, 1221-24, 1226-27, 1283-86, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing Calverts' self-serving testimony that they had been sensitive to her needs). Crispina Calvert refused to let Anna move into her house and claimed that her father wanted the spare bedroom. Kasindorf, supra note 40, at 10.

  49. Johnson, 851 P.2d at 778.

  50. Id.

  51. Id.

  52. Anna J. v. Mark C., 286 Cal. Rptr. 369, 373 (Ct. App. 1991). While the California Family Code never explicitly defines the term "natural parent," the court used the term to denote any parent other than an adoptive parent. Johnson, 851 P.2d at 781 n.9. The term "adoptive parents" denotes a relationship that the courts confer on persons. CAL. FAM. CODE ß 8503 (West 1994). Where this Note uses the term "natural parent," it refers to the parent or parents which the courts, or the California Family Code, recognize as the natural parent or parents. See infra notes 66, 69, 79 and 88 and accompanying text (discussing California Supreme Court's finding of natural mother in Johnson v. Calvert).

  53. Anna J., 286 Cal. Rptr. at 373. See Appellant's Petition for Review by the Supreme Court of California at 8-9, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (stating that this was first case ever in which California court relieved birth mother of parental rights without determining detriment to child). But see In re Matthew B., 284 Cal. Rptr. 18, 23 (Ct. App. 1991) (deciding that traditional surrogate should not have custody of child).

  54. Johnson, 851 P.2d at 787.

  55. Id. at 778-83.

  56. Id. at 783-85.

  57. California Family Code section 7610 reads:
    The parent and child relationship may be established as follows:
    (a) Between a child and the natural mother, it may be established by proof of her having given birth to the child, or under this part.
    (b) Between a child and the natural father, it may be established under this part.
    (c) Between a child and an adoptive parent, it may be established by proof of adoption.
    CAL. FAM. CODE ß 7610 (West 1994).

  58. Id. ß 7610(a) (West 1994).

  59. See id. ß 7555 (West 1994) (permitting blood tests to determine maternity genetically).

  60. Id. ß 7610(c) (West 1994).

  61. Johnson v. Calvert, 851 P.2d 776, 778 (Cal. 1993).
  62. CAL. FAM. CODE ß 7555 (West 1994).
  63. Johnson, 851 P.2d at 778.
  64. Id. at 782.
  65. See id. at 781 (failing to cite any code section to support this view).
  66. Id. at 781 n.8. But see Katherine A. O'Hanlan, Lesbian Mothers: Coequal At Last, THE ADVOCATE , June 27, 1995 at 51 (stating that lesbian couples may legally claim dual motherhood through gestational surrogacy, by having one woman provide egg and other woman carry it to term). See generally Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984) (challenging law's narrow view of parenthood); Alto Charo, Mommies Dearest, To the Editors: University of Wisconsin School of Law, 1992 WIS. L. REV. 233, 235 (1992) (stating that two women may be biologically related to same child); Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L. REV. 423 (1983) (proposing that adoption should not cut off all rights of biological parents); Nancy Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78 GEO. L.J. 459 (1990) (arguing that law needs to recognize that two-mother families already exist). The New York State Bar considered a resolution recommending legal maternity for both the gestational surrogate and the egg donor and equal status in seeking custody. Gary Spencer, House of Delegates Puts Off Resolutions On AIDS Victims, NEW YORK LAW JOURNAL, Feb. 1, 1993, at 1.
  67. Johnson, 851 P.2d at 789.
  68. See id. at 782 n.10 (stating that intent-based approach would cover cases when gestational surrogate is genetically unrelated to child, regardless of genetic relationship of intended parents).
  69. Id. at 778. The surrogacy contract specifically stated that "[t]he Surrogate... does not desire to have a parental relationship with any child born pursuant to this Agreement." Clerk's Transcript at 12, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).

  70. Johnson, 851 P.2d at 784. See Katz, supra note 23, at 741 (noting that California is first state to judicially decide that surrogate contracts are not against public policy); Scott Graham, On the Straight And Narrow: The California Supreme Court Maintained a Steady, Conservative Course in Its 1993 Civil Rulings. Some Lawyers Would Like Them To Be a Little More Expansive, THE RECORDER, Dec. 30, 1993, at 1 (stating that California is first state to recognize gestational surrogacy contracts). At least five states have outlawed the use of surrogacy. See, e.g., FLA. STAT. ANN. ß 63.212(1)(i) (West Supp. 1996) (criminalizing as felony all surrogacy arrangements); MICH. STAT. ANN. ß 25.248(157) (Callaghan 1992) (criminalizing as felony all surrogacy contracts); N.Y. DOM. REL. ß 123(2) (West Supp. 1996) (providing civil penalties for surrogacy); UTAH CODE ANN. ß 76-7- 204(1) (Michie 1995) (criminalizing as misdemeanor all surrogacy acts); WASH. REV. CODE ANN. ß 26.26.250 (West Supp. 1996) (criminalizing as misdemeanor specified surrogacy acts and contracts). Numerous states have decided that such agreements are unenforceable. Rene Lynch, Proposed Legislation Inspired By O.C. Case Tough on Surrogates: Law: Bill Would Deny Them All Rights To Child In Regulating Commercial Surrogacy. It Goes Far Beyond Thursday's Ruling, LOS ANGELES TIMES, May 21, 1993, at A26. Three states, however, have legislatively recognized surrogacy contracts. See, e.g., ARK. CODE. ANN. ß 9-10- 201(c)(1) (Michie 1993) (stating that intended parent shall be legal parent); NEV. REV. STAT. ANN. ß 127.287(5) (Michie 1991) (allowing lawful payment of traditional surrogate); N.H. REV. STAT. ANN. ß 168-B:16 (1994) (listing requirements for lawful surrogacy). Surrogacy for pay is unlawful in Britain, France, Germany, Greece, Norway, Denmark, Switzerland and the Australian state of Victoria. Kasindorf, supra note 40, at 10.

  71. Johnson, 851 P.2d at 783-84; see CAL. PEN. CODE ß 273(a) (West Supp. 1996) (criminalizing payment for consent to adoption).
  72. Johnson, 851 P.2d at 784. The court applied contract law rather than family law. Id. California adoption law requires that the mother consent after the birth of the child. CAL. FAM. CODE ß 8801.3(b)(2) (West Supp. 1996). California law also allows the mother to rescind consent at a later time. Id.
    ß 8814.5(a) (West Supp. 1996).
  73. Johnson, 851 P.2d at 784.
  74. Id. But the facts indicate that the consideration - $10,000 and a life insurance policy - was for Anna Johnson's agreement to "relinquish åall parental right' to the child in favor of Mark and Crispina." Anna J. v. Mark C., 286 Cal. Rptr. 369, 372 (Ct. App. 1991) (quoting from surrogacy contract).
  75. Johnson, 851 P.2d at 784.
  76. Id.
  77. Id. See also id. at 778 (stating that Anna Johnson approached Calverts and offered to be their surrogate).
  78. Id. at 782.
  79. Id. at 797 (Kennard, J., dissenting); COOPER, supra note 1, at 313. Surrogacy contracts specifically provide that the woman who gives birth will terminate all parental interests in the child. LIPTAK, supra note 6, at 120.
  80. Johnson, 851 P.2d at 797 (Kennard, J., dissenting). Hypothetical situations indicating that the child's best interests lie with the surrogate mother (assuming the surrogate is stable, mature, capable and willing) include: (1) the court's discovery that one or another intended parent has been convicted of child abuse, endangerment or neglect; (2) the intended parents undergo a major life change during gestation of the child; (3) the conviction and incarceration of the intended parents; (4) the fact that one or both of the intended parents are unstable or substance abusers. Id. at 799 (Kennard, J., dissenting). Undoubtedly other unpleasant examples exist, but the issue is that the court did not consider the interests of the child, despite the appointment of a guardian ad litem. See id. at 782 n.10 (stating that consideration of child's best interests is inappropriate in parentage case).

  81. Id. at 797 (Kennard, J., dissenting).
  82. See id. at 799 n.4 (Kennard, J., dissenting) (stating that majority refused to consider child's best interests).
  83. See id. at 782 n.10 (stating that Johnson is parentage case, not custody case, and bright-line rule is necessary to protect child's interests).
  84. Id. at 799 (Kennard, J., dissenting).
  85. Id.; see generally COOPER, supra note 1, at 8-10 (pointing out incredible stress attendant with infertility). The book also notes, however, that at the time of publication, only eleven out of over 5000 surrogacy births resulted in litigation. Id. at 265.
  86. Johnson, 851 P.2d at 797 (Kennard, J., dissenting).
  87. In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 903 (Ct. App. 1994) (distinguishing Johnson but noting that, under current case law, courts may only grant custody to those surrogates that contribute egg). But see Caban v. Mohammed, 441 U.S. 380, 397 (1979) (stating that parental rights do not derive from biological relationship, but from more enduring relationship).
  88. Johnson, 851 P.2d at 797 (Kennard, J., dissenting). Providing biological material to the fetus is insufficient to obtain the legal designation of natural mother. See id. at 795 (Kennard, J., dissenting) (stating that California Family Code does not provide mechanism by which to decide between two women who can both offer biological proof of motherhood); see also Trial Reporter's Transcript Vol. II at 344, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing that guardian ad litem testified that Anna Johnson breast-fed baby); Trial Reporter's Transcript Vol. I at 579, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing that Dr. Michelle Harrison testified that gestational mother's biological contribution is always greater than genetic parents' contribution); Trial Reporter's Transcript Vol. V at 914, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing that Calverts' expert, Dr. Justin Call, testified that "intrauterine environment does influence the genetic predisposition of the infant").
  89. See R. Brian Oxman, Maternal-Fetal Relationships and Nongenetic Surrogates, 33 JURIMETRICS, 387, 424 (1993) (stating that act of gestation creates biological mother/child relationship even when gestator is genetically unrelated to fetus); see also Anna J. v. Mark C., 286 Cal. Rptr. 369, 378 (Ct. App. 1991) (stating that gestating woman protects and nourishes child during pregnancy and can permanently affect fetus by what she ingests); Trial Reporter's Transcript Vol. III at 629, Johnson v. Calvert, 851 P. 2d 776 (Cal. 1993) (indicating that gestational mother predominantly determines size and shape of human brain, more so than genetic contributor); American College of Obstetricians and Gynecologists Committee on Ethics, Ethical Issues in Surrogate Motherhood, Committee Opinion No. 88 (1990) (stating Committee's opinion that genetic link between genetic parents and resulting infant, while important, is less weighty than link between surrogate mother and fetus); George J. Annas & Sherman Elias, In Vitro Fertilization and Embryo Transfer: Medicolegal Aspects of a New Technique to Create a Family, 17 FAM. L. Q. 199, 222 (1983) (opining that after nine months of gestation, birth mother has more interest in child than intended mother).
  90. See Trial Reporter's Transcript Vol. IV at 686, 725, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (showing that Dr. Klaus testified that baby was born with Anna Johnson's antibodies and hormones in its blood); Molly Gordy, Egg Donors Offer the Gift of Life: A Solution to Infertility, NEWSDAY, Apr. 20, 1992, at 21 (noting that gestational surrogate provides fetus "with oxygen and proteins, and nourishes its neurosystems with her own adrenalin and endorphins..." (quoting Dr. Daniel Navot of Mt. Sinai's Hospital for Reproduction)).

  91. Johnson, 851 P.2d at 797 (Kennard, J., dissenting). The Johnson decision represents a judicial preference for adoptive parents over the surrogate mother. COOPER, supra note 1, at 271; see also Eric A. Gordon, supra note 38, at 192 (1993) (stating that courts have recently tended to favor genetic mother over birth mother).

  92. See Trial Reporter's Transcript Vol. II at 343, 345, 1418-19, Johnson v. Calvert, 851 P. 2d 776 (Cal. 1993) (showing that guardian ad litem testified that Anna Johnson had psychologically bonded with baby); see also Karen A. Bussell, Constitutional Perspectives: Note: Adventures in Babysitting: Gestational Surrogate Tort Liability, 41 DUKE L.J. 661, 667 (1991) (noting that at moment of birth, gestator has had physical and emotional connection to child for nine months, unlike mere donor of genetic material); Margaret J. Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1932 n.285 (1987) (stating that carrying child in uterus, regardless of genetic link, is stronger factor in interrelationships with child than abstract genetic relationship). But see Alice Hofheimer, Gestational Surrogacy: Unsettling State Parentage Law and Surrogate Policy, 19 N.Y.U. REV. L. & SOC. CHANGE 571, 593 (1992) (arguing that fetus does not psychologically bond with gestator).

  93. Johnson, 851 P.2d at 797-98 (Cal. 1993) (Kennard, J., dissenting).
  94. Id. at 782 n.10.
  95. See COOPER, supra note 1, at 197 (stating that persons other than intended parents may donate both egg and sperm).
  96. See Johnson, 851 P.2d at 782 n.10 (stating perceived problems with best interests test).
  97. See generally CAL. FAM. CODE ß 7612(b) (West 1994) (stating that when two presumptions conflict, courts must use policy and logic to determine parentage); see also Johnson, 851 P.2d at 798-99 (Kennard, J., dissenting) (analyzing majority's intent analysis).
  98. LIPTAK, supra note 6, at 121 (citing Katha Politt, The Strange Case of Baby M., THE NATION, May 23, 1987, at 66). See COOPER, supra note 1, at 226-28, 308 (discussing concerns of both ovum donor and recipient couple regarding bonding during gestation).
  99. See Johnson, 851 P.2d at 781 n.8 (noting suggestion of American Civil Liberties Union in amicus curiae brief); Letter Brief of Raymond J. Leonardini on behalf of the California Catholic Conference, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (advocating finding of three natural parents: Mark and Crispina Calvert and Anna Johnson). But see Michael H. v. Gerald D., 491 U.S. 110, 118 (1989) (finding that California law does not provide for dual fatherhood).
  100. See CAL. FAM. CODE ß 3021(f) (West 1994) (stating that code applies to custody actions brought under Uniform Parentage Act); id. ß 3022 (West 1994) (stating that court may place child in custody only after consideration of best interests of child). See generally, id. ß 3040(b) (West 1994) (stating that code establishes no preferences in granting joint legal custody, joint physical custody or sole custody so that court has wide discretion to order parenting plan that is in best interests of child); id. ß 3011 (West 1994) (stating that factors court may consider in determining best interests of child include: health, safety and welfare of child; history of abuse by either parent; and nature and amount of contact with both parents).

  101. See Adoption of Michelle Lee T., 117 Cal. Rptr. 856, 858 (Ct. App. 1975) (stating that purpose of best interests test is to ensure child will grow to be stable, well-adjusted adult). The First District Court of Appeals in California described the best interests test as an "elusive guideline that belies rigid definition." Id.
  102. See In re Kelly's Adoption, 118 P.2d 479, 482 (Cal. 1941) (discussing considerations of best interests test).
  103. See Peterson v. Peterson, 149 P.2d 206, 209 (Cal. 1944) (stating that court may properly consider marital status in custody cases).

  104. See In re Coughlin's Guardianship, 226 P.2d 46, 49 (Cal. 1951) (discussing custody guidelines); Ludlow v. Ludlow, 201 P.2d 579, 580 (Cal. 1949) (quoting Crater v. Crater, 67 P. 1049, 1050 (Cal. 1902) (stating that controlling factor is good of child)).

  105. See Saltonstall v. Saltonstall, 306 P.2d 492, 496 (Cal. 1957) (considering best interests of child); In re Coughlin's Guardianship, 226 P.2d at 49 (discussing custody guidelines); Hue v. Pickford, 216 P.2d 128, 131 (Cal. 1950) (quoting Foster v. Foster, 68 P.2d 719, 725 (Cal. 1937) (stating that trial court must consider all facts in deciding custody of child)).
  106. See Saltonstall, 306 P.2d at 496 (considering best interests of child); In re Coughlin's Guardianship, 226 P.2d at 49 (discussing custody guidelines); Ludlow, 201 P.2d at 580 (quoting Crater, 67 P. at 1050 (stating that controlling factor is good of child)).
  107. See Hue, 216 P.2d at 131 (quoting Foster, 68 P.2d at 725 (stating that trial court must consider all facts in deciding custody of child)).

  108. See infra notes 112-15 and accompanying text (arguing that best interests test would be best way to resolve gestational surrogacy disputes).

  109. See infra notes 116-22 and accompanying text (explaining why California Supreme Court rejected best interests test).
  110. See infra notes 119-24 and accompanying text (criticizing California Supreme Court majority for rejecting best interests test).

  111. See infra notes 125-29 and accompanying text (applying best interests test to Johnson facts).
  112. See Jermstad v. McNelis, 258 Cal. Rptr. 519, 534 (Ct. App. 1989) (stating that best interest of child lies in court awarding custody to best parent).
  113. See Johnson v. Calvert, 851 P.2d 776, 798 (Cal. 1993) (Kennard, J., dissenting) (stating that majority's intent analysis is inflexible rule unable to serve child's best interests in every case). The guardian ad litem may have believed that the child's best interests coincided with the Calverts' interests. See Minor's Brief on the Merits, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (attacking Anna's brief and otherwise mirroring Calverts' brief). But see Declaration of Harold La Flamme attached to Minor's Petition for Review by the California Supreme Court, Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (stating that both trial court and court of appeal adopted minor's position over Appellant's or Respondents' positions).
  114. Johnson, 851 P.2d at 782.
  115. See Jermstad v. McNelis, 258 Cal. Rptr. 519, 534 (Ct. App. 1989) (stating that child's best interests lie in court awarding custody to best parent); see also In re Baby M., 537 A.2d 1227, 1258 (N.J. 1988) (stating that court should base custody decision on all circumstances relevant to child's best interests).
  116. Johnson, 851 P.2d at 783; see Marge Schultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 397 (1990) (stating that interests of children are not likely to run counter to those of parents).
  117. COOPER, supra note 1, at 271 (stating that intended parents refuse custody more frequently than surrogate sues to keep child). The contract in Johnson specifically stated that the Calverts would accept the child regardless of health problems or abnormalities. Kasindorf, supra note 40, at 10.
  118. Johnson, 851 P.2d at 783.
  119. See Bussell, supra note 92, at 669 (noting possibility of intended parents suing surrogate on behalf of child under tort theory).
  120. See In re Coughlin's Guardianship, 226 P.2d 46, 49 (Cal. 1951) (stating that parental devotion to child's best interests is factor in deciding child's best interests); Ludlow v. Ludlow, 201 P.2d 579, 580 (Cal. 1949) (quoting Crater v. Crater, 67 P. 1049, 1050 (Cal. 1902) (stating that controlling factor is good of child)).

  121. Contra Johnson, 851 P.2d 776, 783 (Cal. 1993). An unwanted child would become a ward of the court. CAL. FAM. CODE ß 7822 (West 1994).
  122. Johnson, 851 P.2d at 783. Under the best interests test, this case would likely have the same result. See infra notes 125-29 and accompanying text (applying best interests test to Johnson facts). A single parent would not usually prevail under a best interests test when opposing a stable couple. Kasindorf, supra note 40, at 10. But see In re Marriage of Moschetta, 30 Cal. Rptr. 2d 893, 903 (Ct. App. 1994) (pointing out that woman wealthy enough to afford in vitro fertilization is reasonably assured of custody, while woman who can only use traditional surrogacy cannot be certain court will vest her with parental rights).
  123. See Carl E. Schneider, Bioethics in the Language of the Law, THE HASTINGS CENTER REPORT, July, 1994, at 16 (stating that creation of rule diminishes actual chance of justice in every case).
  124. See Johnson 851 P.2d at 800 (Kennard, J., dissenting) (stating that best interests test is imprecise because courts apply it on ad hoc basis).
  125. Id. at 798-99 (Kennard, J., dissenting). A middle-class couple will win over an impoverished, single, short-term renter like Anna Johnson. Kasindorf, supra note 40, at 10. But see Johnson, 851 P. 2d at 800 (advocating remand of case to decide best interests of child).
  126. Johnson, 851 P.2d at 778.
  127. Id.
  128. Id. at 778, 782.
  129. Cf. id. at 785 (stating that Anna based her arguments on substantive due process, privacy and procreative freedom).
  130. See id. at 788 (Arabian, J., concurring) (stating that surrogacy contracts are important documents). "We shouldn't let hormones breach the contract, or we're never going to have a woman in the White House." Kasindorf, supra note 40, at 10 (quoting Lori B. Andrews). But cf. Ruling Reaffirms Surrogate Mother's Rights in O.C. Case: Courts: Biological Father Fails To Gain Sole Custody of Girl. Justices Urge Legislative Oversight On Such Contracts, LOS ANGELES TIMES, Oct. 14, 1994, at A18 (stating that traditional surrogacy contracts are unenforceable in California).

  131. Johnson, 851 P.2d at 785.
  132. Id. at 800 (Kennard, J., dissenting).
  133. See id. at 796-97 (Kennard, J., dissenting) (stating that children are not personal property of their parents).
  134. Id. at 801(Kennard, J., dissenting).
  135. See id. at 800 (Kennard, J., dissenting) (stating that well-being of child should be paramount concern); In re Matthew B., 284 Cal. Rptr. 18, 21 (Ct. App. 1991) (making similar statement).
  136. Johnson, 851 P.2d at 782.
  137. See In re Matthew B., 284 Cal. Rptr. 18, 25 (Ct. App. 1991) (stating that best interests test is relative to available options).
  138. See supra notes 99-135 and accompanying text (discussing best interests test).

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