Johnson v. Calvert , 5 Cal. 4th 84 ( 1993 )

Opinion

PANELLI, J.

In this case we address several of the legal questions raised by recent advances in reproductive technology. When, pursuant to a surrogacy agreement, a zygote¹ formed of the gametes² of a husband and wife is implanted in the uterus of another woman, who carries the resulting fetus to term and gives birth to a child not genetically related to her, who is the child’s “natural mother” under California law? Does a determination that the wife is the child’s natural mother work a deprivation of the gestating woman’s constitutional rights? And is such an agreement barred by any public policy of this state?

We conclude that the husband and wife are the child’s natural parents, and that this result does not offend the state or federal Constitution or public policy.

Facts³

Mark and Crispina Calvert are a married couple who desired to have a child. Crispina was forced to undergo a hysterectomy in 1984. Her ovaries remained capable of producing eggs, however, and the couple eventually considered surrogacy. In 1989 Anna Johnson heard about Crispina’s plight from a coworker and offered to serve as a surrogate for the Calverts.

On January 15, 1990, Mark, Crispina, and Anna signed a contract providing that an embryo created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child bom would be taken into Mark and Crispina’s home “as their child.” Anna agreed she would relinquish “all parental rights” to the child in favor of Mark and Crispina. In return, Mark and Crispina would pay Anna $10,000 in a series of installments, the last to be paid six weeks after the child’s birth. Mark and Crispina were also to pay for a $200,000 life insurance policy on Anna’s life.⁴

The zygote was implanted on January 19, 1990. Less than a month later, an ultrasound test confirmed Anna was pregnant.

Unfortunately, relations deteriorated between the two sides. Mark learned that Anna had not disclosed she had suffered several stillbirths and miscarriages. Anna felt Mark and Crispina did not do enough to obtain the required insurance policy. She also felt abandoned during an onset of premature labor in June.

In July 1990, Anna sent Mark and Crispina a letter demanding the balance of the payments due her or else she would refuse to give up the child. The following month, Mark and Crispina responded with a lawsuit, seeking a declaration they were the legal parents of the unborn child. Anna filed her own action to be declared the mother of the child, and the two cases were eventually consolidated. The parties agreed to an independent guardian ad litem for the purposes of the suit.

The child was born on September 19, 1990, and blood samples were obtained from both Anna and the child for analysis. The blood test results excluded Anna as the genetic mother. The parties agreed to a court order providing that the child would remain with Mark and Crispina on a temporary basis with visits by Anna.

At trial in October 1990, the parties stipulated that Mark and Crispina were the child’s genetic parents. After hearing evidence and arguments, the trial court ruled that Mark and Crispina were the child’s “genetic, biological and natural” father and mother, that Anna had no “parental” rights to the child, and that the surrogacy contract was legal and enforceable against Anna’s claims. The court also terminated the order allowing visitation. Anna appealed from the trial court’s judgment. The Court of Appeal for the Fourth District, Division Three, affirmed. We granted review.

Discussion

Determining Maternity Under the Uniform Parentage Act

The Uniform Parentage Act (the Act) was part of a package of legislation introduced in 1975 as Senate Bill No. 347. Tfte legislation’s purpose was to eliminate the legal distinction between legitimate and illegitimate children. The Act followed in the wake of certain United States Supreme Court decisions mandating equal treatment of legitimate and illegitimate children. (See, e.g., Levy v. Louisiana (1968) 391 U.S. 68 [20 L.Ed.2d 436, 88 S.Ct. 1509] [state could not deny illegitimate child right to bring tort action for wrongful death of parent if it gave legitimate child the same right]; Glona v. American Guarantee Co. (1968) 391 U.S. 73 [20 L.Ed.2d 441, 88 S.Ct. 1515] [state could not deny parent of illegitimate child right to bring tort action for wrongful death of child if it gave parent of legitimate child the same right].) A press release issued on October 2, 1975, described Senate Bill No. 347 this way: “The bill, as amended, would revise or repeal various laws which now provide for labeling children as legitimate or illegitimate and defining their legal rights and those of their parents accordingly. In place of these cruel and outmoded provisions, SB 347 would enact the Uniform Parentage Act which bases parent and child rights on the existence of a parent and child relationship rather than on the marital status of the parents.”

The pertinent portion of Senate Bill No. 347, which passed with negligible opposition, became part 7 of division 4 of the California Civil Code, sections 7000-7021.⁵

Civil Code sections 7001 and 7002 replace the distinction between legitimate and illegitimate children with the concept of the “parent and child relationship.” The “parent and child relationship" means “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” (Civ. Code, § 7001.) “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” (Civ. Code, § 7002.) The “parent and child relationship” is thus a legal relationship encompassing two kinds of parents, “natural” and “adoptive.”

Passage of the Act clearly was not motivated by the need to resolve surrogacy disputes, which were virtually unknown in 1975. Yet it facially applies to any parentage determination, including the rare case in which a child’s maternity is in issue. We are invited to disregard the Act and decide this case according to other criteria, including constitutional precepts and our sense of the demands of public policy. We feel constrained, however, to decline the invitation. Not uncommonly, courts must construe statutes in factual settings not contemplated by the enacting legislature. For example, in People v. Salemme (1992) 2 Cal.App.4th 775 [3 Cal.Rptr.2d 398], the court upheld a conviction of burglary when the felony the defendant entered the residence to commit was that of the fraudulent sale of securities. This scenario likely was not within the Legislature’s contemplation when it enacted Penal Code section 459. Nonetheless, the burglary statute, on its face, addressed the defendant’s conduct and was properly interpreted to apply to it. Similarly, the Act offers a mechanism to resolve this dispute, albeit one not specifically tooled for it. We therefore proceed to analyze the parties’ contentions within the Act’s framework.

These contentions are readily summarized. Anna, of course, predicates her claim of maternity on the fact that she gave birth to the child. The Calverts contend that Crispina’s genetic relationship to the child establishes that she is his mother. Counsel for the minor joins in that contention and argues, in addition, that several of the presumptions created by the Act dictate the same result. As will appear, we conclude that presentation of blood test evidence is one means of establishing maternity, as is proof of having given birth, but that the presumptions cited by minor’s counsel do not apply to this case.

We turn to those few provisions of the Act directly addressing the determination of maternity. “Any interested party,” presumably including a genetic mother, “may bring an action to determine the existence ... of a mother and child relationship.” (Civ. Code, § 7015.) Civil Code section 7003 provides, in relevant part, that between a child and the natural mother a parent and child relationship “may be established by proof of her having given birth to the child, or under [the Act].” (Civ. Code, § 7003, subd. (1), italics added.) Apart from Civil Code section 7003, the Act sets forth no specific means by which a natural mother can establish a parent and child relationship. However, it declares that, insofar as practicable, provisions applicable to the father and child relationship apply in an action to determine the existence or nonexistence of a mother and child relationship. (Civ. Code, § 7015.) Thus, it is appropriate to examine those provisions as well.

A man can establish a father and child relationship by the means set forth in Civil Code section 7004. (Civ. Code, §§ 7006, 7004.) Paternity is presumed under that section if the man meets the conditions set forth in section 621 of the Evidence Code. (Civ. Code, § 7004, subd. (a).) The latter statute applies, by its terms, when determining the questioned paternity of a child bom to a married woman, and contemplates reliance on evidence derived from blood testing. (Evid. Code, § 621, subds. (a), (b);⁶ see Evid. Code, §§ 890-897 [Uniform Act on Blood Tests to Determine Paternity].) Alternatively, Civil Code section 7004 creates a presumption of paternity based on the man’s conduct toward the child (e.g., receiving the child into his home and openly holding the child out as his natural child) or his marriage or attempted marriage to the child’s natural mother under specified conditions.⁷

In our view, the presumptions contained in Civil Code section 7004 do not apply here. They describe situations in which substantial evidence points to a particular man as the natural father of the child. (9B West’s U.Laws Ann. (1987) Unif. Parentage Act, com. foll. § 4, p. 299.) In this case, there is no question as to who is claiming the mother and child relationship, and the factual basis of each woman’s claim is obvious. Thus, there is no need to resort to an evidentiary presumption to ascertain the identity of the natural mother. Instead, we must make the purely legal determination as between the two claimants.

Significantly for this case, Evidence Code section 892 provides that blood testing may be ordered in an action when paternity is a relevant fact. When maternity is disputed, genetic evidence derived from blood testing is likewise admissible. (Evid. Code, § 892; see Civ. Code, § 7015.) The Evidence Code further provides that if the court finds the conclusions of all the experts, as disclosed by the evidence based on the blood tests, are that the alleged father is not the father of the child, the question of paternity is resolved accordingly. (Evid. Code, § 895.) By parity of reasoning, blood testing may also be dispositive of the question of maternity. Further, there is a rebuttable presumption of paternity (hence, maternity as well) on the finding of a certain number of genetic markers. (Evid. Code, § 895.5.)

Disregarding the presumptions of paternity that have no application to this case, then, we are left with the undisputed evidence that Anna, not Crispina, gave birth to the child and that Crispina, not Anna, is genetically related to him. Both women thus have adduced evidence of a mother and child relationship as contemplated by the Act. (Civ. Code, §§ 7003, subd. (1), 7004, subd. (a), 7015; Evid. Code, §§ 621, 892.) Yet for any child California law recognizes only one natural mother, despite advances in reproductive technology rendering a different outcome biologically possible.⁸

We see no clear legislative preference in Civil Code section 7003 as between blood testing evidence and proof of having given birth.⁹ “May” indicates that proof of having given birth is a permitted method of establishing a mother and child relationship, although perhaps not the exclusive one. The disjunctive “or” indicates that blood test evidence, as prescribed in the Act, constitutes an alternative to proof of having given birth. It may be that the language of the Act merely reflects “the ancient dictum mater est quam [,gestatio] demonstrat (by gestation the mother is demonstrated). This phrase, by its use of the word ‘demonstrated,’ has always reflected an ambiguity in the meaning of the presumption. It is arguable that, while gestation may demonstrate maternal status, it is not the sine qua non of motherhood. Rather, it is possible that the common law viewed genetic consanguinity as the basis for maternal rights. Under this latter interpretation, gestation simply would be irrefutable evidence of the more fundamental genetic relationship.” (Hill, What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights (1991) 66 N.Y.U. L.Rev. 353, 370, fns. omitted.) This ambiguity, highlighted by the problems arising from the use of artificial reproductive techniques, is nowhere explicitly resolved in the Act.

Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties’ intentions as manifested in the surrogacy agreement. Mark and Crispina are a couple who desired to have a child of their own genes but are physically unable to do so without the help of reproductive technology. They affirmatively intended the birth of the child, and took the steps necessary to effect in vitro fertilization. But for their acted-on intention, the child would not exist. Anna agreed to facilitate the procreation of Mark’s and Crispina’s child. The parties’ aim was to bring Mark’s and Crispina’s child into the world, not for Mark and Crispina to donate a zygote to Anna. Crispina from the outset intended to be the child’s mother. Although the gestative function Anna performed was necessary to bring about the child’s birth, it is safe to say that Anna would not have been given the opportunity to gestate or deliver the child had she, prior to implantation of the zygote, manifested her own intent to be the child’s mother. No reason appears why Anna’s later change of heart should vitiate the determination that Crispina is the child’s natural mother.

We conclude that although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother under California law.¹⁰

Our conclusion finds support in the writings of several legal commentators. (See Hill, What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, supra, 66 N.Y.U. L.Rev. 353; Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality (1990) Wis. L.Rev. 297 [Shultz]; Note, Redefining Mother: A Legal Matrix for New Reproductive Technologies (1986) 96 Yale L.J. 187, 197-202 [Note].) Professor Hill, arguing that the genetic relationship per se should not be accorded priority in the determination of the parent-child relationship in the surrogacy context, notes that “while all of the players in the procreative arrangement are necessary in bringing a child into the world, the child would not have been bom but for the efforts of the intended parents. . ..[!].. . [T]he intended parents are the first cause, or the prime movers, of the procreative relationship.” (Hill, op. cit. supra, at p. 415, italics in original.)

Similarly, Professor Shultz observes that recent developments in the field of reproductive technology “dramatically extend affirmative intentionality. . . . Steps can be taken to bring into being a child who would not otherwise have existed.” (Shultz, op. cit. supra, p. 309.) “Within the context of artificial reproductive techniques,” Professor Shultz argues, “intentions that are voluntarily chosen, deliberate, express and bargained-for ought presumptively to determine legal parenthood.” (Id., at p. 323, fn. omitted.)

Another commentator has cogently suggested, in connection with reproductive technology, that “[t]he mental concept of the child is a controlling factor of its creation, and the originators of that concept merit full credit as conceivers. The mental concept must be recognized as independently valuable; it creates expectations in the initiating parents of a child, and it creates expectations in society for adequate performance on the part of the initiators as parents of the child.” (Note, op. cit. supra, 96 Yale L.J. at p. 196.)

Moreover, as Professor Shultz recognizes, the interests of children, particularly at the outset of their lives, are “[un]likely to run contrary to those of adults who choose to bring them into being.” (Shultz, op. cit. supra, at p. 397.) Thus, “[h]onoring the plans and expectations of adults who will be responsible for a child’s welfare is likely to correlate significantly with positive outcomes for parents and children alike.” (Ibid.) Under Anna’s interpretation of the Act, by contrast, a woman who agreed to géstate a fetus genetically related to the intending parents would, contrary to her expectations, be held to be the child’s natural mother, with all the responsibilities that ruling would entail, if the intending mother declined to accept the child after its birth. In what we must hope will be the extremely rare situation in which neither the gestator nor the woman who provided the ovum for fertilization is willing to assume custody of the child after birth, a rule recognizing the intending parents as the child’s legal, natural parents should best promote certainty and stability for the child.

In deciding the issue of maternity under the Act we have felt free to take into account the parties’ intentions, as expressed in the surrogacy contract, because in our view the agreement is not, on its face, inconsistent with public policy.

Preliminarily, Mark and Crispina urge us to interpret the Legislature’s 1992 passage of a bill that would have regulated surrogacy as an expression of this state’s public policy despite the fact that Governor Wilson’s veto prevented the bill from becoming law. Senate Bill No. 937 contained a finding that surrogate contracts are not against sound public and social policy. (Sen. Bill No. 937 (1991-1992 Reg. Sess.).) Had Senate Bill No. 937 become law, there would be no room for argument to the contrary. The veto, however, raises a question whether the legislative declaration truly expresses California’s public policy.

In the Governor’s veto message we find, not unequivocal agreement with the Legislature’s public policy assessment, but rather reservations about the practice of surrogate parenting. “Surrogacy is a relatively recent phenomenon. The full moral and psychological dimensions of this practice are not yet clear. In fact, they are just beginning to emerge. Only two published court opinions in California have treated this nettlesome subject. . . . Comprehensive regulation of this difficult moral issue is premature . ... [ID To the extent surrogacy continues to be practical, it can be governed by the legal framework already established in the family law area.” (Governor’s veto message to Sen. on Sen. Bill No. 937 (Sept. 26, 1992) Sen. Daily File (1991-1992 Reg. Sess.) p. 68.) Given this less than ringing endorsement of surrogate parenting, we conclude that the passage of Senate Bill No. 937, in and of itself, does not establish that surrogacy contracts are consistent with public policy. (Of course, neither do we draw the opposite conclusion from the fact of the Governor’s veto.)

Anna urges that surrogacy contracts violate several social policies. Relying on her contention that she is the child’s legal, natural mother, she cites the public policy embodied in Penal Code section 273, prohibiting the payment for consent to adoption of a child.¹¹ She argues further that the policies underlying the adoption laws of this state are violated by the surrogacy contract because it in effect constitutes a prebirth waiver of her parental rights.

We disagree. Gestational surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related medical procedures before the child was conceived; at the time when Anna entered into the contract, therefore, she was not vulnerable to financial inducements to part with her own expected offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up “parental” rights to the child. Payments were due both during the pregnancy and after the child’s birth. We are, accordingly, unpersuaded that the contract used in this case violates the public policies embodied in Penal Code section 273 and the adoption statutes. For the same reasons, we conclude these contracts do not implicate the policies underlying the statutes governing termination of parental rights. (See Welf. & Inst. Code, § 202.)

It has been suggested that gestational surrogacy may run afoul of prohibitions on involuntary servitude. (See U.S. Const., Amend. XIII; Cal. Const., art. I, § 6; Pen. Code, § 181.) Involuntary servitude has been recognized in cases of criminal punishment for refusal to work. (Pollock v. Williams (1944) 322 U.S. 4, 18 [88 L.Ed. 1095, 1104, 64 S.Ct. 792, 799]; see, generally, 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 411-414, pp. 591-596.) We see no potential for that evil in the contract at issue here, and extrinsic evidence of coercion or duress is utterly lacking. We note that although at one point the contract purports to give Mark and Crispina the sole right to determine whether to abort the pregnancy, at another point it acknowledges: “All parties understand that a pregnant woman has the absolute right to abort or not abort any fetus she is carrying. Any promise to the contrary is unenforceable.” We therefore need not determine the validity of a surrogacy contract purporting to deprive the gestator of her freedom to terminate the pregnancy.

Finally, Anna and some commentators have expressed concern that surrogacy contracts tend to exploit or dehumanize women, especially women of lower economic status. Anna’s objections center around the psychological harm she asserts may result from the gestator’s relinquishing the child to whom she has given birth. Some have also cautioned that the practice of surrogacy may encourage society to view children as commodities, subject to trade at their parents’ will.

We are all too aware that the proper forum for resolution of this issue is the Legislature, where empirical data, largely lacking from this record, can be studied and rules of general applicability developed. However, in light of our responsibility to decide this case, we have considered as best we can its possible consequences.

We are unpersuaded that gestational surrogacy arrangements are so likely to cause the untoward results Anna cites as to demand their invalidation on public policy grounds. Although common sense suggests that women of lesser means serve as surrogate mothers more often than do wealthy women, there has been no proof that surrogacy contracts exploit poor women to any greater degree than economic necessity in general exploits them by inducing them to accept lower-paid or otherwise undesirable employment. We are likewise unpersuaded by the claim that surrogacy will foster the attitude that children are mere commodities; no evidence is offered to support it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants.¹²

The argument that a woman cannot knowingly and intelligently agree to géstate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law. To resurrect this view is both to foreclose a personal and economic choice on the part of the surrogate mother, and to deny intending parents what may be their only means of procreating a child of their own genes. Certainly in the present case it cannot seriously be argued that Anna, a licensed vocational nurse who had done well in school and who had previously borne a child, lacked the intellectual wherewithal or life experience necessary to make an informed decision to enter into the surrogacy contract.

Constitutionality of the Determination That Anna Johnson Is Not the Natural Mother

Anna argues at length that her right to the continued companionship of the child is protected under the federal Constitution.

First, we note the constitutional rights that are not implicated here.

There is no issue of procedural due process: although Anna broadly contends that the procedures prescribed for adoptions should be followed in the situation of a gestational surrogate’s relinquishment to the genetic parents of the child she has carried and delivered, she cites no specific deficiency in the notice or hearing this matter received.

Furthermore, neither Anna nor amicus curiae ACLU articulates a claim under the equal protection clause, and we are unable to discern in these facts the necessary predicate to its operation. This is because a woman who voluntarily agrees to géstate and deliver for a married couple a child who is their genetic offspring is situated differently from the wife who provides the ovum for fertilization, intending to mother the resulting child.

Anna relies mainly on theories of substantive due process, privacy, and procreative freedom, citing a number of decisions recognizing the fundamental liberty interest of natural parents in the custody and care of their children. (See, e.g., Santosky v. Kramer (1982) 455 U.S. 745, 768 [71 L.Ed.2d 599, 616, 102 S.Ct. 1388]; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649, 101 S.Ct. 2153]; Smith v. Organization of Foster Families (1977) 431 U.S. 816, 842 [53 L.Ed.2d 14, 33-34, 97 S.Ct. 2094]; Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208].) Most of the cases Anna cites deal with the rights of unwed fathers in the face of attempts to terminate their parental relationship to their children. (See, e.g., Stanley v. Illinois, supra, 405 U.S. at pp. 658-659 [31 L.Ed.2d at pp. 562-563]; Quilloin v. Walcott (1978) 434 U.S. 246, 247-248 [54 L.Ed.2d 511, 515-516, 98 S.Ct. 549]; Caban v. Mohammed (1979) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760]; Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985].) These cases do not support recognition of parental rights for a gestational surrogate. Although Anna quotes language stressing the primacy of a developed parent-child relationship in assessing unwed fathers’ rights (see Lehr v. Robertson, supra, 463 U.S. at pp. 260-262 [77 L.Ed.2d at pp. 625-627]), certain language in the cases reinforces the importance of genetic parents’ rights. (Lehr v. Robertson, supra, 463 U.S. at p. 262 [77 L.Ed.2d at p. 627] [“The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.”]; see also Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838 [4 Cal.Rptr.2d 615, 823 P.2d 1216] [“The biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship.”].)

Anna’s argument depends on a prior determination that she is indeed the child’s mother. Since Crispina is the child’s mother under California law because she, not Anna, provided the ovum for the in vitro fertilization procedure, intending to raise the child as her own, it follows that any constitutional interests Anna possesses in this situation are something less than those of a mother. As counsel for the minor points out, the issue in this case is not whether Anna’s asserted rights as a natural mother were unconstitutionally violated, but rather whether the determination that she is not the legal natural mother at all is constitutional.¹³

Anna relies principally on the decision of the United States Supreme Court in Michael H. v. Gerald D. (1989) 491 U.S. 110 [105 L.Ed.2d 91, 109 S.Ct. 2333], to support her claim to a constitutionally protected liberty interest in the companionship of the child, based on her status as “birth mother.” In that case, a plurality of the court held that a state may constitutionally deny a man parental rights with respect to a child he fathered during a liaison with the wife of another man, since it is the marital family that traditionally has been accorded a protected liberty interest, as reflected in the historic presumption of legitimacy of a child born into such a family. (491 U.S. at pp. 124-125 [105 L.Ed.2d at pp. 106-107] (plur. opn. by Scalia, J.).) The reasoning of the plurality in Michael H. does not assist Anna. Society has not traditionally protected the right of a woman who gestates and delivers a baby pursuant to an agreement with a couple who supply the zygote from which the baby develops and who intend to raise the child as their own; such arrangements are of too recent an origin to claim the protection of tradition. To the extent that tradition has a bearing on the present case, we believe it supports the claim of the couple who exercise their right to procreate in order to form a family of their own, albeit through novel medical procedures.

Moreover, if we were to conclude that Anna enjoys some sort of liberty interest in the companionship of the child, then the liberty interests of Mark and Crispina, the child’s natural parents, in their procreative choices and their relationship with the child would perforce be infringed. Any parental rights Anna might successfully assert could come only at Crispina’s expense. As we have seen, Anna has no parental rights to the child under California law, and she fails to persuade us that sufficiently strong policy reasons exist to accord her a protected liberty interest in the companionship of the child when such an interest would necessarily detract from or impair the parental bond enjoyed by Mark and Crispina.

Amicus curiae ACLU urges that Anna’s right of privacy, embodied in the California Constitution (Cal. Const., art. I, § 1), requires recognition and protection of her status as “birth mother.” We cannot agree. Certainly it is true that our state Constitution has been construed to provide California citizens with privacy protections encompassing procreative decisionmaking —broader, indeed, than those recognized by the federal Constitution. (Compare Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 263 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] with Harris v. McRae (1980) 448 U.S. 297, 315-318 [65 L.Ed.2d 784, 803-806, 100, S.Ct. 2671] [reaching opposing results on the question of whether state and federal Constitutions, respectively, permit legislative denial of funding for abortions for indigent women].) However, amicus curiae fails to articulate persuasively how Anna’s claim falls within even the broad parameters of the state right of privacy. Amicus curiae appears to assume that the choice to géstate and deliver a baby for its genetic parents pursuant to a surrogacy agreement is the equivalent, in constitutional weight, of the decision whether to bear a child of one’s own. We disagree. A woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own.

Drawing an analogy to artificial insemination, Anna argues that Mark and Crispina were mere genetic donors who are entitled to no constitutional protection. That characterization of the facts is, however, inaccurate. Mark and Crispina never intended to “donate” genetic material to anyone. Rather, they intended to procreate a child genetically related to them by the only available means. Civil Code section 7005, governing artificial insemination, has no application here.¹⁴

Finally, Anna argues that the Act’s failure to address novel reproductive techniques such as in vitro fertilization indicates legislative disapproval of such practices. Given that the Act was drafted long before such techniques were developed, we cannot agree. Moreover, we may not arrogate to ourselves the power to disapprove them. It is not the role of the judiciary to inhibit the use of reproductive technology when the Legislature has not seen fit to do so; any such effort would raise serious questions in light of the fundamental nature of the rights of procreation and privacy. Rather, our task has been to resolve the dispute before us, interpreting the Act’s use of the term “natural mother” (Civ. Code, § 7003, subd. (1)) when the biological functions essential to bringing a child into the world have been allocated between two women.

Disposition

The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Mosk, J., Baxter, J., and George, J., concurred.

1 An organism produced by the union of two gametes. (McGraw-Hill Dict, of Scientific and Technical Terms (4th ed. 1989) p. 783.)

2 A cell that participates in fertilization and development of a new organism, also known as a germ cell or sex cell. (McGraw-Hill Dict. of Scientific and Technical Terms, supra, p. 2087.)

3 The statement of facts and the discussion of the legislative history of the Uniform Parentage Act, post, pages 88-89, are adapted from the opinion of the Court of Appeal.

4 At the time of the agreement, Anna already had a daughter, Erica, born in 1987.

5 Effective January 1, 1994, Civil Code sections 7000-7021 have been repealed and replaced with equivalent provisions in the Family Code. (Stats. 1992, ch. 162, § 4; see Fam. Code, §§ 7600-7650 [eff. Jan. 1, 1994].)

6 Evidence Code section 621 provides in relevant part as follows: “(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. [1] (b) Notwithstanding subdivision (a), if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7, are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly.” Effective January 1, 1994, Evidence Code sections 621 and 890 through 897 have been repealed and replaced with equivalent provisions of the Family Code. (Stats. 1992, ch. 162, §§ 8, 9; see Fam. Code, §§ 7500-7501, 7550-7557 [eff. Jan. 1, 1994].)

7 Civil Code section 7004 provides as follows: “(a) A man is presumed to be the natural father of a child if he meets the conditions as set forth in Section 621 of the Evidence Code or in any of the following paragraphs: [5] (1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court. [1] (2) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following are true: [1] (i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce, fl] (ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [5] (3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: M] (i) With his consent, he is named as the child’s father on the child’s birth certificate. [5] (ii) He is obligated to support the child under a written voluntary promise or by court order. [1] (4) He receives the child into his home and openly holds out the child as his natural child. [J] (5) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child’s father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. [1] This paragraph shall remain in effect only until January 1, 1997, and on that date shall become inoperative. H] . . . ffl (c) Except as provided in Section 621 and 621.1 of the Evidence Code, a presumption under this section is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise under this section which conflict with each other, the presumption which, on the facts, is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.”

8 We decline to accept the contention of amicus curiae the American Civil Liberties Union (ACLU) that we should find the child has two mothers. Even though rising divorce rates have made multiple parent arrangements common in our society, we see no compelling reason to recognize such a situation here. The Calverts are the genetic and intending parents of their son and have provided him, by all accounts, with a stable, intact, and nurturing home. To recognize parental rights in a third party with whom the Calvert family has had little contact since shortly after the child’s birth would diminish Crispina’s role as mother.

9 The Court of Appeal interpreted Civil Code section 7003, subdivision (1), to mean that only a “natural” mother can establish a mother and child relationship by proof of having given birth, and that a woman must first demonstrate, through blood test evidence, that she is the “natural” mother of the child before her evidence of having given birth can establish that she is the child’s natural mother. We disagree with the Court of Appeal’s reading of the statute. In our view, the term “natural” as used in subdivision (1) of Civil Code section 7003 simply refers to a mother who is not an adoptive mother. Section 7003 does not purport to answer the question before us, i.e., who is to be deemed the natural mother when the biological functions essential to bringing a child into the world have been allocated between two women.

10 Thus, under our analysis, in a true “egg donation” situation, where a woman gestates and gives birth to a child formed from the egg of another woman with the intent to raise the child as her own, the birth mother is the natural mother under California law.

The dissent would decide parentage based on the best interests of the child. Such an approach raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy, and confuses concepts of parentage and custody. Logically, the determination of parentage must precede, and should not be dictated by, eventual custody decisions. The implicit assumption of the dissent is that a recognition of the genetic intending mother as the natural mother may sometimes harm the child. This assumption overlooks California’s dependency laws, which are designed to protect all children irrespective of the manner of birth or conception. Moreover, the best interests standard poorly serves the child in the present situation: it fosters instability during litigation and, if applied to recognize the gestator as the natural mother, results in a split of custody between the natural father and the gestator, an outcome not likely to benefit the child. Further, it may be argued that, by voluntarily contracting away any rights to the child, the gestator has, in effect, conceded the best interests of the child are not with her.

11 Penal Code section 273 provides, in pertinent part, as follows: “(a) It is a misdemeanor for any person or agency to offer to pay money or anything of value, or to pay money or

anything of value, to a parent for the placement for adoption, for the consent to an adoption, or for cooperation in the completion of an adoption of his or her child. H] (b) This section does not make it unlawful to pay the maternity-connected medical or hospital and necessary living expenses of the mother preceding and during confinement as an act of charity, as long as the payment is not contingent upon placement of the child for adoption, consent to the adoption, or cooperation in the completion of the adoption.”

See also Penal Code section 181, which provides: “Every person who holds, or attempts to hold, any person in involuntary servitude, or assumes, or attempts to assume, rights of ownership over any person, or who sells, or attempts to sell, any person to another, or receives money or anything of value, in consideration of placing any person in the custody, or under the power or control of another, or who buys, or attempts to buy, any person, or pays money, or delivers anything of value, to another, in consideration of having any person placed in his custody, or under his power or control, or who knowingly aids or assists in any manner any one thus offending, is punishable by imprisonment in the state prison for two, three, or four years.”

12 See Andrews and Douglass, Alternative Reproduction (1991) 65 So.Cal.L.Rev. 623, 673-678.

13 The trial court analogized Anna’s relationship with the child to that of a foster mother, whose liberty interest, if any, in her relationship with the foster child is surely more attenuated than that of the natural parents with the child. (See Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 845-847 [53 L.Ed.2d at pp. 35-37] [declining to define the constitutional contours of the foster relationship].)

14 Civil Code section 7005 provides as follows: “(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and retain the husband’s consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. [1] (b) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.”