Medical science has fostered important but controversial developments in the field of reproductive technology.¹ Scientific advances have imp roved a process, called surrogacy, wherein one woman gives birth to another woman's child.² While surrogacy is far from new,³ a current form co mmonly called "gestational surrogacy"⁴ has created a new area replete with both joys and problems.⁵ In this most modern method of motherhood, a woman capable of producing eggs, but unable to incubate a child in her womb, cooperates with a woman willing to carry a fertilized embryo to term.⁶ Fertilization of a harvested egg occurs in a laboratory⁷ rather than in a human body.⁸ A doctor then implants the resulting fetus into the surrogate's uterus.⁹

Gestational surrogacy presents, for the first time, an opportunity for more than one woman to accurately claim a physical parental relationship to the same child.¹⁰ In Johns on v. Calvert,¹¹ the California Supreme Court faced this issue when it decided the legal maternity of a baby born to a gestational surrogate. ¹² The court, using contract analysis, determined that the surrogate was not the baby's legal mother because she had signed a contract relinquishing her parental rights.¹³

This Note challenges the California Supreme Court's analysis of surrogacy as a contract, rather than family law, issue. Part I of this Note describes the legal background surrounding surrogacy issues.¹⁴ Part II presents the California Supreme Court's treatment of the gestational surrogacy agreement in Johnson.¹⁵ Part III analyzes t he problems that result from the Johnson decision.¹⁶ Part IV argues that the "best interests of the child" test is the preferable test under which to decide gestational surrogacy issues.¹⁷ The California Supreme Court refused to apply this test in Johnson.¹⁸

I. Legal Background

No statute or reported case prior to Johnson addresses gestational surrogacy.¹⁹ Thus, the following cases discuss traditional surrogacy. Traditional surrogacy differs from gestational ^{< /SUP>surrogacy in that a traditional surrogate is genetically related to the fetus she carries.20 The New Jersey Supreme Court was the first court in the nation to void the enf orceability of the surrogacy contract,21 in In re Baby M.22 After a traditional surrogate refused to give up the infant to which she gave birth, the genetic father sued for specific performance of a surrogacy contract.23 The contract specified that the genetic father and his wife held custody and that the su rrogate would do everything necessary to terminate her parental rights.24 The trial court, after considering the best interests of the child, affirmed the validity of the contr act and ordered specific performance.25}

On appeal, the New Jersey Supreme Court agreed that the appropriate test for determining custody between a natural mother and a natural father was the best interests of the child.²⁶ The court first invalidated the surrogacy contract on the basis of public policy, then remanded the case to the trial court for determination of the child's best interests.²⁷ The court stated that the holding applied only to the payment of fees and the termination of the surrogate mother's rights.²⁸ While invalidating surrogacy contracts involving an exchange of money, the court took care to emphasize that a surrogate mother may legally volunteer to carry a child for a couple that intends to raise the resulting child.²⁹

In contrast, a California court faced with the same issue avoided a decision on the validity of surrogacy contracts. In In re Matthew B.,³⁰ the traditional s urrogate, despite having contracted away her parental rights prior to becoming pregnant, sought to withdraw her consent to the adoption approximately ten months after giving birth. ³¹ She asked the trial court to grant her either custody or visitation rights.³² The court refused and she appealed.³³ The app ellate court denied relief to the surrogate mother based on the best interests of the child.³⁴

Both of these cases decided issues related to traditional surrogacy.³⁵ Neither court considered the wife of the genetic father a part of the equation because she could claim n o physical relationship to the child.³⁶ The court in Johnson v. Calvert was the first to decide a case in which three people could claim a physical relationship to the child.³⁷ The California Supreme Court took the opportunity afforded by a breakthrough in reproductive technology to make new law.³⁸

II. Johnson v. Calvert

A. Facts and Procedural History

Recent scientific developments have challenged the concept of legal maternity.³⁹ These developments have brought a unique set of problems to the courts' attention.⁴⁰ In 1990, a trial judge faced an issue that no American court had previously addressed.⁴¹ The issue was the legal maternity of a child born by gestatio nal surrogacy.⁴² The case involved a married couple that contracted with a surrogate mother to conceive a child genetically related to the couple.⁴³

The couple, Mark and Crispina Calvert, were unable to have a child because Crispina had undergone a hysterectomy.⁴⁴ Because Crispina's ovaries could still produce eggs,⁴⁵ however, the couple tried gestational surrogacy.⁴⁶ The Calverts entered into a surrogacy agreement with Anna Johnson.⁴⁷ The parties signed a contract in which the Calverts agreed to pay Anna $10,000 and purchase an insurance policy on her life. In return, Anna agreed to relinquish her parental rights to the C alverts after the birth of the child. A doctor fertilized Crispina's egg with Mark's sperm and implanted the resulting zygote into Anna's uterus. Soon after a doctor confirmed that Anna was pregnant, relations b etween the parties began to deteriorate.⁴⁸

While still pregnant, Anna demanded immediate payment under the contract and threatened not to relinquish the child after birth.⁴⁹ The Calverts responded by filing a lawsuit seeking a judicial determination that Anna had no parental rights in the baby. In response, Anna filed her own lawsuit, and the court consolidated the two cases. The parties agreed to appoint a ^{< /SUP>guardian ad litem to represent the interests of the unborn child.50}

The trial court found for the Calverts.⁵¹ It found that the Calverts were the child's "natural parents"⁵² and held that Anna had no parental rights in the child.⁵³ Both the appellate court and the California Supreme Court affirmed the trial court's decision.⁵⁴

B. The Holding in Johnson

On appeal, the California Supreme Court decided two issues. The court first determined the identity of the natural mother by examining the parties' original intent.⁵⁵ The cour t then evaluated the validity of the surrogacy contract in light of public policy.⁵⁶

Under California Family Code section 7610, a woman may establish maternity by one of three methods:⁵⁷ proof of having given birth to the child;⁵⁸ proof of a genetic relationship with the child;⁵⁹ or proof of adoption.⁶⁰ Anna Johnson stipulated at the beginnin g of the trial that Mark and Crispina Calvert were the genetic parents.⁶¹ Crispina Calvert qualified as the child's legal mother by virtue of the genetic relationship.⁶² Anna Johnson also qualified as the child's legal mother because she gave birth to the child.⁶³ Thus both women had legitimate maternity claims under Family Code section 7610.⁶⁴

Without explanation,⁶⁵ the California Supreme Court decided that two women cannot have the rights of the natural mother.⁶⁶ Instead, the cour t decided to break the "tie"⁶⁷ in favor of the parent who, prior to conception, intended to raise the child and care for it during its minority.⁶⁸ On the basis of Crispina's intent, the California Supreme Court determined that Crispina was the child's natural mother.⁶⁹

The court next decided whether the parties' contract comported with public policy.⁷⁰ Anna argued that the contract violated public policy because California Penal Code section 273 prohib its payment for consent to adoption.⁷¹ The court held, however, that a gestational surrogacy contract is not subject to adoption statutes⁷² b ecause the parties contracted prior to conception.⁷³ The court also found that the Calverts did not intend to induce Anna to consent to an adoption. Rather, the Calverts compensated Anna for her services as a surrogate mother.⁷⁴ Thus, the court found that the agreement resembled an employment contract rather than a contract for consent to adoption and did not v iolate California law.⁷⁵

Anna further argued that surrogate motherhood was a form of involuntary servitude and thus against public policy.⁷⁶ The court rejected this argument because the surrogacy contract specif ically gave her the right to abort the fetus. The court reasoned that Anna's servitude was discretionary rather than involuntary.⁷⁷ Since the contract did not call for involuntary servitude, it was not against public policy.

In sum, the Johnson court decided that persons who enter into a gestational surrogacy agreement intending to care for the resulting child during its minority will be the child's legal parents.⁷⁸ As a result, California courts must now look to the parties' pre-conception intent to determine who is the natural mother. Since the intent to care for a child at the time of the contr act will always lie with the prospective parents,⁷⁹ the Johnson holding created a decision-making process that ignores other pertinent factors.^{8 0}

III. Repercussions of the Johnson Holding

The Johnson holding ignores some relevant considerations: the social circumstances surrounding the surrogacy contract; the biological contribution of the gestational surrogate; and the psychological bond ing between the gestator and the baby.⁸¹ Courts must consider this information to adequately assess a child's welfare.⁸² For examp le, Johnson prohibits a court from considering a change of circumstances, such as the intended parents' divorce before the child is born.⁸³ The divorce of the intended parents woul d be a change of circumstances that might indicate that the surrogate could provide a better home for the child.⁸⁴ Under Johnson, a court may not consider the surroundin g circumstances even when they indicate that the surrogate mother is the better parent.⁸⁵

The Johnson analysis also ignores the surrogate's biological contribution.⁸⁶ While a Fourth District appellate court commented that, under Johnson, "biology is destiny,"⁸⁷ Johnson may more accurately reflect the proposition that "genetic origin is destiny."⁸⁸ The surrogate mother, while genetically unrelated to the fetus, provides biological material to the fetus.⁸⁹ She supplies necessary hormones, antibodies, adrenaline, endorphins, oxygen and proteins to the fetus.90 The Johnson decision, however, ignores this contribution in deciding legal maternity.⁹¹

The California Supreme Court also neglected to consider the effect on the child of any psychological bonding between the surrogate and the fetus during pregnancy.⁹² The major ity's refusal to consider the quality of the relationship between the gestational mother and the fetus growing inside devalues the gestator. Justice Kennard recognized the gestational surrogate's cont ribution in her dissent, stating that a pregnant woman "is more than a mere container or breeding animal."⁹³

The Johnson court intended its holding to apply to all gestational surrogacy situations,⁹⁴ including cases in which the intended parents do not contribute genetic material.⁹⁵ The majority implied that a best interests test would not cover such situations.⁹⁶ In actuality, a best interests test could ^{< /SUP>cover such cases better than the pre-conception intent analysis because it would consider all factors in its analysis.97 The parents' social circumstances, the surrogate' s biological contribution and the psychological bonding between the surrogate and the child relate to the child's well-being before and after birth.98}

IV. Alternative Analysis: The Best Interests Test

The best way to resolve disputes involving gestational surrogates is for the court to find two natural mothers.⁹⁹ The court should then determine custody based on the best interests of the child.¹⁰⁰ The best interests test considers all factors likely to affect the child.¹⁰¹ These factors include the following: the child's temporal, mental and moral welfare;¹⁰² the prospective parents' marital status;¹⁰³ the prospective par ents' devotion to the child's best interests;¹⁰⁴ the prospective parents' financial condition;¹⁰⁵ the prospective parents' mor als or lack thereof;¹⁰⁶ and other factors which help the court to determine the best home for the child.¹⁰⁷ This section will discuss: wh y the best interests test is the best alternative;¹⁰⁸ why the Johnson majority rejected this test;¹⁰⁹ and why the majority was wro ng to do so.¹¹⁰ Finally, this section will apply the best interests test to the facts in Johnson.¹¹¹

A court basing its decision on the best interests of the child would rule in favor of the child.¹¹² Yet the Johnson analysis can result in a decision that is not in t he child's best interests.¹¹³ Instead of addressing what was best for the child, the Johnson court focused on the parents' contractual agreement prior to conception.¹¹⁴ Instead of being dispositive, however, the parties' intentions and pre-conception behavior should be considered as factors within the context of the best interests test.< A HREF="child.html#111-120" TARGET="Child">¹¹⁵

While the California Supreme Court rejected the best interests test because of a belief that the interests of a child parallel those of the child's parents,¹¹⁶ the court exp ressed fear that if intended parents declined to accept the child as their own,¹¹⁷ this might force a gestational surrogate into custody of a child she never wanted.¹¹⁸ The court could have addressed this situation under a best interests analysis.¹¹⁹ Forcing an unwilling parent to take custody is not in a child's best i nterests.¹²⁰ If the court must force some unwilling parent into custody, then an analysis of the best interests of the child would be ideal for determining which party would make the better parent.¹²¹

The Johnson court stated that its bright-line rule ensures the child certainty and stability.¹²² But while certainty and stability are virtues in the law, a bright-line rule wil l harm children whose intended parents are unfit.¹²³ Certainty and stability should not come at the expense of children.¹²⁴

If the court had applied a best interests test to the facts in Johnson, the court may still have ruled in favor of the Calverts.¹²⁵ They were married, while Anna was not.¹²⁶ Their financial condition was much more sound than Anna's.¹²⁷ The Calverts had the pre-conception intent to raise the child as their own.¹²⁸ Anna could point to few circumstances that would have supported an argument that the child's best interests lay in awarding her custody.¹²⁹

The best interests test would not ignore the pre-conception contract.¹³⁰ Consenting adults entered into the agreement voluntarily.¹³¹ Th e intent to care for the child during its minority, as expressed in the pre-conception contract, would be a factor in determining the best interests of the child.¹³² But the dispute revolved around a child, not a commodity.¹³³ Thus the contract alone should not be the determining factor.¹³⁴ The best interests approach is better than the contract approach because the adults' interests should not come before those of the child.¹³⁵

Conclusion

The California Supreme Court decided Johnson v. Calvert based on the contracting parties' intent rather than the child's best interests.¹³⁶ This decision was misguide d because a best interests test would allow courts to choose the best among all available options so that the affected child could grow up happy and well-adjusted.¹³⁷ Legal decisions regarding custody should consider the child rather than focusing on the desires of the parents. A test that considers the child's best interests promotes stability and security for the child.¹³⁸

Fall, 1996