ANNA J., Plaintiff and Appellant, v. MARK C. et al., Defendants and Respondents.

No. G010225

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE.

12 Cal. App. 4th 977; 286 Cal. Rptr. 369; 1991 Cal. App. LEXIS 1162; 91 Daily Journal DAR 12433

October 8, 1991, Decided

NOTICE: NOT CITABLE - SUPERSEDED BY GRANT OF REVIEW

SUBSEQUENT HISTORY: Review Granted January 23, 1992 (S023721), Reported at 1992 Cal. LEXIS 291.
[Reprinted without change to permit tracking pending disposition on review by the Supreme Court. (See Preface to Cumulative Subsequent History Table. Previous cite 234 Cal. App. 3d 1557 and 6 Cal. App. 4th 521.)]

PRIOR-HISTORY: Superior Court of Orange County, Nos. X-633190 and AD-57638, Richard N. Parslow, Jr., Judge.

COUNSEL: Richard C. Gilbert and Diane J. Marlowe for Plaintiff and Appellant.

Van Deusen, Youmans & Walmsley, Christian R. Van Deusen and Robert R. Walmsley for Defendants and Respondents.

Harold LaFlamme and Michelle Ben-Hur for Minor.

Jon W. Davidson and Paul L. Hoffman as Amici Curiae.

JUDGES: Opinion by Sills, P. J., with Sonenshine and Moore, JJ., concurring.

OPINION BY: SILLS, P. J.

I

INTRODUCTION

We journey through uncharted territory. This is a case of first impression. A woman's egg was combined in a laboratory petri dish with sperm from her husband and the resulting zygote implanted in a so-called gestational surrogate mother who later gave birth to a healthy baby boy. We are now asked to determine who are the parents of the child.

Surrogacy is not, however, an altogether new idea. Couples unable to have children of their own have involved third parties in the reproductive process since biblical times. ¹ In cases where the wife was infertile, surrogacy has meant the fertilization of the egg of another woman by the sperm of the husband. In such cases, the woman who actually gave birth to the child ² not only carried and nourished the child in her womb, but also gave to the child her own unique genetic inheritance. By the same token, the infertile wife had no biological connection to the child at all. She neither nourished the child in her womb, gave birth, nor contributed genes. When courts have been asked to determine custody under such circumstances, as in the "infamous" ³ Baby M case, ⁴ or the recent California case of Adoption of Matthew B., ⁵ there was no question that the woman who gave birth was the "natural" mother of the child.

FOOTNOTES

1 See Genesis 16:2 ("And Sarai said unto Abram, Behold now, the Lord hath restrained me from bearing: I pray thee, go in unto my maid; it may be that I may obtain children by her."); Genesis 30:3 ("And [Rachel] said, Behold my maid Bilhah, go in unto her; and she shall bear upon my knees, that I may also have children by her.").

The reverse scenario of a man siring a child who would legally be another's was also not unheard of in antiquity. (See Deuteronomy 25:5-6 ["If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger; her husband's brother shall go in unto her, and take her to him to wife …. [P] And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead …."].)

2 Surrogacy is an issue where the basic terms one employs may affect one's analysis. (See Rowland, Decoding Reprospeak (May/June 1991) Ms., at p. 38 [discussing influence of language on issues involving reproductive technology].) Some people object to the word "surrogate" as implying the person is not the "real mother." (See Buttenwieser, Reprospeak Defined (May/June 1991) Ms., at p. 33.) The phrase "birth mother," however, is also conclusive, suggesting the person is the real mother. Insofar as possible, we will attempt to use neutral language. We apologize for already using the word "surrogacy," which, at least for the moment, seems to be the most commonly accepted word to describe the kinds of relationships and actions involved in this case.

3 The description is that of a New York family law judge, who used it in Matter of Adoption of Paul (1990) 146 Misc.2d 379 [550 N.Y.S.2d 815, 817].

4 Matter of Baby M (1988) 109 N.J. 396 [537 A.2d 1227 77 A.L.R.4th 1].

5 Adoption of Matthew B. (1991) 232 Cal.App.3d 1239 [284 Cal.Rptr. 18]. Matthew B. is essentially an adoption case rather than a "surrogacy" case. In Matthew B., a woman was artificially inseminated, gave birth, and signed a consent to adoption. Later, she petitioned to withdraw the consent. The court held the trial court's denial of the petition was not an abuse of discretion. (See 232 Cal.App.3d at p. 1264.) The woman also sought to vacate a stipulated judgment of paternity. The court held she was estopped to urge the point on appeal. (See 232 Cal.App.3d at pp. 1269-1272.)


Now yesterday's science fiction is today's reality. ⁶ New techniques in reproductive science give individual human beings the power to realize the age-old dream of overcoming infertility. These techniques open the door for both husband and wife to be genetically related to a child who is not borne by the wife.

FOOTNOTES

6 Surrogacy and artificial insemination feature in futuristic literature. Some of the more prominent references have been quite pessimistic, to say the least. See, e.g., Atwood, The Handmaid's Tale (1986) (enforced surrogacy institutionalized as form of slavery in post-nuclear holocaustsociety); Orwell, 1984 (1949) page 66 (reference to advocacy by totalitarians of all reproduction by artificial insemination or "artsem"); Huxley, Brave New World (1932) pages 1-14 (hatcheries used for human reproduction in totalitarian world). We express no opinion on the social implications of gestational surrogacy one way or the other.


With this opportunity, however, comes the question of who is the child's "natural" mother. The woman who nurtures the child in her womb and gives birth--or the otherwise infertile woman whose egg is implanted into the woman who gives birth? The question is important because, except in cases of adoption, the "legal" mother of a child is the "natural" mother.

Questions of parenthood have in the past focused on the question, "who is the father?" Historically there has never been occasion when the "natural" mother was not unquestionably also the same woman who bore the child. The times when maternity has been at issue have been rare indeed. ⁷ In the most celebrated case on point, the court proposed to settle the matter by cutting the baby in half. ⁸ We, of course, do not have that option.

FOOTNOTES

7 Cf. 16 Encyclopedia Judaica, Yuhasin, page 891: "A person's yihus [genealogy or pedigree] obviously cannot be established unless the identity of his parents is known. Identifying the mother generally presents no difficulties …."

8 See I Kings 3: 16- 28. The court ultimately gave custody to the claimant who showed the greater concern for the child's best interests by being willing to relinquish her claim and thereby spare the child.


Rather, we must follow the law of California as written by our Legislature. Uncharted as the territory may be, the Legislature has already enacted a series of statutes which, like so many markers on a trail, lead us to one inevitable destination. As applied to this case, these statutes are clear. If a blood test shows a woman is not the natural mother of the child, the case must be decided accordingly.

II

FACTS

Mark and Crispina ⁹ are a married couple who desired to have their own child. Tumors in Crispina's uterus forced her to have a hysterectomy in 1984. The operation, however, left Crispina with the ability to produce eggs, and the couple eventually considered surrogacy. In 1989 Anna heard about Crispina's plight from a coworker and offered to be a surrogate for her and Mark.

FOOTNOTES

9 The Supreme Court of California has issued a policy memorandum to all appellate courts requesting the names of "minors innocently involved in appellate court proceedings … be omitted from all appellate court opinions whenever their best interests would be served by anonymity." (See Cal. Style Manual (3d ed. 1986) § 213, at p. 146.) To implement this policy, "it is usually necessary to suppress the identity of parents and others bearing the minor's last name." (Id., § 214, at p. 146.)

This case has received widespread media attention. The Los Angeles Times and the Orange County Register have carried numerous articles. One of the litigants appeared on the Phil Donahue television show. More people, of course, probably read the Times, the Register, and watch the Donahue show in a day than have ever read so much as a page in the California Appellate Reports. Under such circumstances, we have grave doubts about whether anonymity will make any difference. Nevertheless we adhere to the Supreme Court's request. The memorandum makes no exceptions for high profile cases.


On January 15, 1990, Mark, Crispina, and Anna signed a contract which provided that an "embryo" created by the sperm of Mark and the egg of Crispina would be implanted in Anna and the child born 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 six weeks after the child's birth. They were also to pay for a $ 200,000 insurance policy on Anna's life. ¹⁰

FOOTNOTES

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


The zygote was implanted January 19, 1990. Less than a month later, an ultrasound test confirmed Anna was pregnant. Unfortunately, relations deteriorated between the two sides. Mark learned Anna had not disclosed she had suffered several stillbirths and miscarriages. Anna was upset because 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, 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. ¹¹ In August, Mark and Crispina responded with this 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, with Anna's case being made the lead. The parties agreed to an independent guardian for the purposes of the suit. Appointed counsel for the unborn child successfully obtained a stipulation signed by the attorneys of each party requiring all monies made by the parties from the case be placed in an independent trust for the child's benefit.

FOOTNOTES

11 Here is the text of the letter:

"7/23/90

"Dear Chris & Mark,

"I am writing you this letter to inquire if an early payment can be made of what is left to be paid of me. I would not ask if it weren't important and I feel that this is important because it deals with the well-being of the baby. The lady that owns the house in which I reside is selling it, so I must be out by the 10th of August. Since I am to be hospitalized for three weeks due to the pyleonephritis [sic] & premature contractions I need to find another place to live prior to this! Due to the complications of this pregnancy, I am unable to return to work until the delivery of this baby so my income is limited. I do not get enough from disability to make a two month rent deposit plus, the security deposit & have the telephone reconnected. I don't think you'd want your child jeopardized by living out on the street. I have looked out for this child's well being thus far, is it asking too much to look after ours?

I'm imploring nicely and trying not to be an ogre about this. But you must admit, you have not been very supportive mentally the entire pregnancy & you've showed a lack of interest unless it came to an ultrasound. I am asking you for help in paying off the final five thousand. There's only two months left & once this baby is born, my hands are free of this deal. But see, this situation can go two ways. One, you can pay me the entire sum early so I won't have to live in the streets, or two you can forget about helping me but, calling it a breach of contract & not get the baby! I don't want it to get this nasty, not coming this far, but you'd want some help too, if you had no where to go & have to worry about not only yourself but your own child & the child of someone else!!! Help me find another place & get settled in before your baby's born. [P] This is the only letter you will get from me. The next letter you will receive will be from my lawyers, unless I hear from you by return mail at the end of the week--7/28/90.

Sincerely

Anna [last name omitted]

Surrogate."


The child was born September 19 and blood samples were obtained from both Anna and the child for analysis. The blood test results excluded Anna "as the genetic mother" of the baby. ¹² The parties agreed to a court order providing the child would remain with Mark and Crispina on a temporary basis with visits by Anna.

FOOTNOTES

12 Here are the results as reported by the director of a parentage testing laboratory:

Our opinion of non-paternity is based on the above noted inconsistency. For each noted inconsistency the combination of phenotypes as observed occurs with negligible frequency when the tested woman is the mother as compared to the frequency when she is not the mother."

The letters HLA stand for "human leucocyte antigen."


In mid-October the case went to trial. The trial court decided in favor of Mark and Crispina, ruling they were the child's "genetic, biological and natural" father and mother. It also ruled Anna had no "parental" rights to the child, and the contract was legal and enforceable against Anna's claims. The court also terminated the order allowing visitation. Anna now appeals from the trial court's judgment.

III

DISCUSSION

A

Determining Maternity Under the Uniform Parentage Act

While this is a case of first impression, we do not find ourselves in the directionless mist of a legal twilight zone. By enacting the Uniform Parentage Act in 1975, the Legislature has left us the necessary signs and markers to find our way to a decision under the law as it is now worded. Finding the answer may be somewhat tedious--a bit like trying to obtain a permit from a bureaucracy and continually being referred to another department--but an answer can still be found.

The Uniform Parentage Act (the Parentage Act) was part of a package of legislation introduced in 1975 as Senate Bill No. 347 by Senator Anthony C. Beilenson aimed at eliminating the legal distinction between legitimate and illegitimate children. The Parentage Act followed in the wake of certain United States Supreme Court decisions mandating equal treatment of legitimate and illegitimate children. ¹³

FOOTNOTES

13 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).


Senate Bill No. 347 passed with negligible opposition and the Parentage Act became part 7 of division 4 of the California Civil Code (§ 7000-7021). The core concept of the Parentage Act is found in Civil Code sections 7001 and 7002, which replace the distinction between legitimate and illegitimate children with the "parent and child relationship." ¹⁴ Here is the text of these two sections:

FOOTNOTES

14 A press release issued by Senator Beilenson's office on October 2, 1975, described the bill 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."


"As used in this part, '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 a "legal relationship" (as distinct from a natural one) encompassing two kinds of parents, "natural" or "adoptive." Our task is to ascertain who is the legal mother of the child, i.e., who is within the "mother and child relationship."

The logical place to begin is the section in the Parentage Act which addresses the precise question of who is the legal mother, Civil Code section 7015.Section 7015 reads:

"Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part applicable to the father and child relationship apply." ( Civ. Code, § 7015, italics added.)

The "provisions of this part applicable to the father and child relationship" are found in Civil Code sections 7003 and 7004. Civil Code section 7003, subdivision (2) states: "The parent and child relationship may be established as follows: [P] (2) Between a child and the natural father it may be established under this part."

This tells us a "natural father" can be the legal father, but does not tell us what a "natural father" is. Section 7004 addresses this particular question.Subdivision (a) of § 7004 states, in relevant part:

"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 …." (The balance of § 7004 refers to criteria which do not have anything to do with whether a man is a "natural" father, but whether, despite a man not being, in fact, the natural father of a child, the man's conduct would allow a court to presume he was the natural father of the child. ¹⁵ )

FOOTNOTES

15 A bill digest prepared for an August 7, 1975, hearing of the Assembly Judiciary Committee on Senate Bill No. 347 summarizes these criteria as "similar to those presently used to establish 'legitimacy.' "


Subdivision (b) of section 7004 states "except as provided in Section 621 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." (Italics added.) The clear import of this language is that if a case is provided for in section 621 of the Evidence Code, any presumption which arises is not rebuttable at all.

Section 621 of the Evidence Code reads in relevant part:

"(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.

" (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." (Italics added.)

The meaning of this language is clear. If the conclusion of the experts disclosed by the evidence based upon blood tests is that the husband is not the father of the child, that settles the matter even if he and his wife were cohabiting.

Section 621 thus directs the reader to "blood tests performed pursuant to Chapter 2 of Division 7" of the Evidence Code. Chapter 2 is the Uniform Act on Blood Tests to Determine Paternity (the Blood Test Act), drafted by the same National Conference of Commissioners on Uniform State Laws who drafted the Parentage Act. ¹⁶

FOOTNOTES

16 See Prefatory Note, Uniform Parentage Act, at page 3.


Blood tests are based on the fact certain genetic markers present in each individual's blood are inherited from each parent. ( Everett v. Everett (1984) 150 Cal.App.3d 1053, 1065, fn. 12 [201 Cal.Rptr. 351].) Such tests, however, have their limits. They cannot absolutely prove a man is the father. Even the comparatively recent HLA (human leukocyte antigen) test cannot conclusively prove paternity. ( at pp. 1062 and 1071.) Most litigation over blood tests revolves around this fact. (E.g., County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439 [232 Cal.Rptr. 471]; Everett v. Everett, supra, 150 Cal.App.3d 1053; Cramer v. Morrison (1979) 88 Cal.App.3d 873 [153 Cal.Rptr. 865]; Michael B. v. Superior Court (1978) 86 Cal.App.3d 1006 [150 Cal.Rptr. 586].)

But blood tests can, absolutely, show a man is not the father of a child. As to "nonpaternity," blood tests are completely dispositive. ¹⁷ The Blood Test Act recognized this scientific fact by making blood tests conclusive on the issue of nonpaternity. (See Cramer v. Morrison, supra, 88 Cal.App.3d at p. 880.)

FOOTNOTES

17 See Little v. Streater (1981) 452 U.S. 1, 6-7 [68 L.Ed.2d 627, 632-633, 101 S.Ct. 2202], on the accuracy of the Landsteiner blood grouping tests:

" 'As far as the accuracy, reliability, dependability--even infallibility--of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely. … There is now … practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity.' " (Quoting Schatkin, Disputed Paternity Proceedings (1975) § 9.13, italics added.)

The Landsteiner series of tests is based on red blood cell groups. Red blood cell groups involve only a small number of factors. This means that while the Landsteiner tests may "conclusively" rule out a man as the father of a child, they are not very conclusive in showing whether a man who might be the father actually is the father. (See Cramer v. Morrison, supra, 88 Cal.App.3d 873, 878.)

The HLA test, on the other hand, is based on tissue typing of white blood cells. White blood cells involve a greater number of factors than do red cells, so the test yields more accurate probabilities that a man who is not ruled out as the father really is the father. ()

We are not aware of any authority suggesting the HLA test is not at least as accurate as the Landsteiner tests in excluding paternity.




The central provision of the Blood Test Act has been codified as section 895 of the Evidence Code. It reads:

"If the court finds that the conclusion of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, or if the tests show the probability of the alleged father's paternity, the question, subject to the provisions of Section 352, shall be submitted upon all the evidence, including evidence based upon the tests." ( Evid. Code, § 895, italics added.) (§ 352 is the provision of the Evidence Code which allows a trial court, in its discretion, to exclude evidence if its admission will be unduly time consuming, prejudicial, confusing, or misleading. ¹⁸ )

FOOTNOTES

18 Anna makes no argument on appeal the evidence of the blood test was unduly prejudicial, time consuming, confusing or misleading.


We now must apply section 895 to this case. ¹⁹ The "experts" referred to in the section are not just any old experts. Rather, as Evidence Code section 893 shows, they are experts "qualified as examiners of blood types." If such experts are unanimous in their interpretation of the blood test results, that ends the matter. The question of paternity must be "resolved accordingly." On the other hand, if such experts disagree about their findings and conclusions, or if the tests show a "probability" of paternity, then the question of paternity goes to the court on all the evidence.

FOOTNOTES

19 Another section of the Blood Test Act, Evidence Code section 895.5, creates a rebuttable presumption of paternity if blood tests show a certain mathematical probability the putative father is the "true father of the child." As this case is one where the blood test positively excludes maternity (as distinct from merely showing the possibility of maternity), section 895.5 has no bearing here.


In this case, there was no need to call any experts qualified as examiners of blood types because there was no dispute over the results of the test. Anna was excluded, as clearly shown by the report of the director of the parentage testing laboratory received into evidence as exhibited by stipulation of all the parties. That report flatly excluded Anna as "not the mother" of the baby boy. Anna offered no evidence to show the blood test results were inaccurate. The only evidence before the trial court "based upon the tests" thus ruled out Anna as the mother of the child.

There can be no doubt where section 895 leads us. We must "resolve" the question of Anna's claim to maternity as we would resolve the question of a man's claim to (or liability for) paternity when blood tests positively exclude him as a candidate. Under section 7015 of the Parentage Act, the question of maternity as "resolved" under section 895 determines who is the "natural" mother of the child. We must conclude it is not Anna.

In light of Anna's stipulation that Crispina is genetically related to the child and because of the blood tests excluding Anna from being the natural mother, there is no reason not to uphold the trial court's determination that Crispina is the natural mother. She is the only other candidate! ²⁰ (We address the issue of Mark's parental rights below, when we discuss another section in the Parentage Act, Civ. Code, § 7005.)

FOOTNOTES

20 Our conclusion is buttressed by a comment in Bill Digest reports of the Assembly Judiciary Committee on Senate Bill No. 347 for hearings to be held August 7 and 14, 1975. The committee was told Senate Bill No. 347 "sets forth the manner in which the parent and child relationship can be established. Essentially, it can be established either through a paternity suit or through the operation of a presumption based upon criteria similar to those presently used to establish 'legitimacy.' " In other words, the basic manner of determining male parentage would also apply to female parentage, a conclusion made explicit, as we have seen, in Civil Code section 7015.


Anna claims a United States Supreme Court case, Michael H. v. Gerald D. (1989) 491 U.S. 110 [105 L.Ed.2d 91, 109 S.Ct. 2333], requires a different result. In Michael H., a California case, the court held that Evidence Code section 621 was constitutional as applied against an adulterous unwed father who sought to establish parental rights with a child he sired by another man's wife. According to Anna, if the court had believed "genetics should control parental rights," the court would have decided Michael H. differently.

Anna's analysis is incorrect. Each state, rather than the United States Supreme Court, is the final arbiter of the content of its own law. The United States Supreme Court, of course, has the last word as to whether a state's law conflicts with the United States Constitution or a law of the United States government. It is not, however, the ultimate authority on what each state's law actually is. ( Burford v. Sun Oil Co. (1943) 319 U.S. 315, 325 [87 L.Ed. 1424, 1430, 63 S.Ct. 1098] [Texas courts "alone" had power to give definite answers to questions of state law]. ²¹ ) The Michael H. court thus could not, even if it purported to, establish what the law of California is as to the effect of "genetics" on "parental rights." Michael H. could only determine whether that law is constitutional (or otherwise in conflict with federal law). We return to it when we address the constitutional dimensions of this case.

FOOTNOTES

21 This is not to say the United States Supreme Court does not affect the content of state law indirectly. State courts will obviously try to interpret their own state law so as not to conflict with the federal Constitution or federal law as interpreted by the United States Supreme Court.


B

Section 7003

The foundation of Anna's claim to a "mother and child relationship" is based on another section in the Parentage Act, Civil Code section 7003. She relies on the following language:

"The parent and child relationship may be established as follows:

"(1) 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." ( Civ. Code, § 7003, subd. (1).)

A casual reading of this language might lead one to conclude a woman could establish a parent and child relationship simply by showing she gave birth to the child. If so read, the statute might support Anna's argument. There is no doubt she gave birth to the child.

But that is not what the statute says. It says the natural mother may establish she is the legal mother by showing she gave birth to the child. This is only common sense. With the exception of this and the relatively few other "gestational" surrogacy cases, the "natural mother" is always the person who gives birth to the child.

The statute does not say the woman who gives birth to the child is the natural mother. All it says is that one of the ways for the "natural mother" to establish a parent and child relationship is to prove she gave birth. The statute is silent on whether the woman who gives birth is automatically the "natural mother." As we have seen, the definition of "natural mother" is the subject of another series of statutes.

Anna's argument concerning section 7003 assumes she is already established as the "natural mother." Under the law as enacted by the Legislature, however, she is conclusively not the "natural mother" when her maternity is ruled out by blood tests.

C

Section 7005

Anna also argues this case fits within Civil Code section 7005 which cuts off sperm donors' parental rights. Under Anna's theory, section 7005 precludes Mark from being the legal father of the child even if he is the natural one.

Essentially, section 7005 allows a husband whose wife is artificially inseminated by a licensed physician to be the legal father of the resulting child even though he is not the natural father. The relevant language is:

"(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. …

"(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." ( Civ. Code, § 7005.)

Neither the spirit nor the letter of section 7005 fits this case. Obviously, Mark never intended to put himself in the legal position of a semen donor who provides sperm for artificial insemination of a woman whose husband is infertile.

Moreover, the statute, which was intended to deal only with artificial insemination, has no application to this case. Anna was not artificially inseminated.Rather, a zygote was implanted in her womb. As Mark Twain once said about the difference between the right word and the nearly right word, the difference in the two procedures is the difference between lightning and the lightning bug. In the one, the woman who carries the child is the natural mother of the child--both contributing her genes and giving birth. In the other the woman who carries the child is not genetically related to the child and may be shown, as in this case, to be conclusively excluded as the child's natural mother.

Finally, Anna's argument stands the statute on its head. Section 7005 seeks not to punish sperm donors, but to protect both sperm donors and married couples who employ artificial insemination. If being a sperm donor carried with it the responsibilities of parenthood, the pool of volunteers would be small indeed. And by the same token, if employing artificial insemination brought with it potential claims from sperm donors, few couples would use the procedure. It is a gross distortion of the facts to put Mark into the sperm donor category rather than what he functionally is--a husband who used a new medical procedure which enabled him and his wife to have a child of their own.

There is no question of Mark's genetic relationship to the child. He is therefore the natural father. Section 7005 does not bar him from also being the legal father.

D

The Constitutionality of the Law Determining That Anna Is Not the Natural Mother

Anna further argues the great constitutional precepts of due process and equal protection require she be given "parental" rights in this case. ²²

FOOTNOTES

22 Nowhere in her appellant's opening brief does Anna contend in so many words that, if the Parentage Act operates against her, it is unconstitutional. However, she does argue that constitutional law requires the Parentage Act be interpreted in such a way as to provide her with "parental rights," which is much the same thing.


Even if Anna is not, under California law, the "natural mother," the question remains whether Anna, because she gave birth to the child, is still entitled, as a matter of constitutional law, to be recognized as the child's "parent."

Amicus curiae, American Civil Liberties Union Foundation of Southern California, argues, in this regard, that "fundamental rights of intimate association and procreative choice … exercised by all of the parties to this action" require that genetics alone not be the "exclusive factor in determining parental rights." In support of this assertion, amicus curiae and Anna both point to the significant biological contribution given a child by a woman who carries it to term. While the woman is pregnant, she shares most of her major bodily functions with the child. For some time after birth the child retains and uses the woman's life-preserving tissue, cells, blood, nutrients and antibodies. The woman protects and nourishes the child during pregnancy, and, for good or ill, can permanently affect the child by what she ingests. The contribution to the child's development by the woman who gave it birth is indeed, as amicus curiae points out, profound.

1

The Due Process "Liberty Interest"

Since 1968, the United States Supreme Court has had several occasions to rule on the constitutionality of state laws governing natural parents' rights. Typically, these cases have involved, as we saw in Michael H. v. Gerald D., supra, 491 U.S. 110, unwed fathers. ²³ Michael H. is particularly helpful because it shows the various ways United States Supreme Court justices have analyzed the parental rights of unwed natural parents.

FOOTNOTES

23 See, e.g., Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985] (unwed father not entitled to notice of child's adoption proceedings even though state knew of father's existence, whereabouts and interest in child); Caban v. Mohammed (1979) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760] (New York statute giving right to unmarried mother, but not to unmarried father, to block adoption by withholding consent, violated equal protection clause); Quilloin v. Walcott (1978) 434 U.S. 246 [54 L.Ed.2d 51, 98 S.Ct. 549] (Georgia statute allowing adoption of child born out of wedlock not violative of due process clause where unwed father never legitimated the child and did not seek visitation rights until after adoption petition was filed): Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208] (Illinois statute conclusively presuming every unwed father to be unfit to have custody violated due process clause.


Justice Scalia's lead opinion, signed by four justices (except for one footnote, which was joined in by only two justices) looked to societal traditions to conclude there was no constitutionally protected "liberty interest" between an unwed, adulterous natural father and his daughter. The court explained the relationship between an adulterous natural father, his married paramour and their child has never been recognized as a "protected family unit under the historic practices of our society." Therefore such an unwed father has no "liberty interest" in a relationship with that child when the husband of the mother desires to treat the child as his own. (See 491 U.S. at pp. 123-125 [105 L.Ed.2d at pp. 105-107].)

The separate concurring opinion of Justice Stevens, on the other hand, assumed the natural father had a constitutionally protected liberty interest in his relationship with his natural daughter. He nevertheless concluded the statute was constitutional because the natural father was afforded an "opportunity" for visitation under Civil Code section 4601, ²⁴ thus not arbitrarily infringing on the relationship. (491 U.S. at pp. 132-136 [105 L.Ed.2d at pp. 111-115] (conc. opn. of Stevens, J.).)

FOOTNOTES

24 The complete text of Civil Code section 4601 is:

"In making an order pursuant to Section 4600.5, the court shall order reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child."

Section 4600.5 refers to "any proceeding where there is at issue the custody of a minor child." (See Civ. Code, § 4600.)


Justice Brennan's dissenting opinion, signed by three justices, declared the unwed father's biological link to the child combined with his " 'full commitment to the responsibilities of parenthood' " (491 U.S. at pp. 142-143 [105 L.Ed.2d at pp. 118-119] (dis. opn. of Brennan, J.)) established a constitutionally protected liberty interest. He reasoned the statute terminated that interest without a hearing and thereby deprived the natural father of "any chance" of maintaining a relationship with his natural daughter. (491 U.S. at pp. 148-149 [105 L.Ed.2d at pp. 122-123] (dis. opn. of Brennan, J.).)

Finally, Justice White wrote his own dissenting opinion joined in by Justice Brennan. Justice White concluded the natural father had a constitutionally protected liberty interest which was thwarted because he was foreclosed by the state from establishing his paternity and ultimately precluded "from developing a relationship with his child." (491 U.S. at p. 163 [105 L.Ed.2d at pp. 130B-131] (dis. opn. of White, J.).)

Each of these approaches when applied here yields the same result. First, under Justice Scalia's analysis, Anna cannot claim a constitutionally protected liberty interest. Our society has never "traditionally protected" (see 491 U.S. at p. 122 [105 L.Ed.2d at p. 105]) the right of a gestational surrogate. The most this case could do is start such a tradition.

Justices Stevens, Brennan, and White each either concluded (or assumed) a liberty interest based, at least in part, on the fact the unwed father was the child's natural father. But Anna is not the natural mother. Rather, Mark and Crispina are the natural parents. Indeed, their liberty interests would be infringed if they were denied parental rights.

Moreover, even assuming a woman who gives birth acquires a "liberty interest" in a relationship with the child, such an interest would not be arbitrarily infringed by the operation of the Parentage Act. Employing Justice Stevens's approach, we note California law affords Anna, as someone not a parent,an opportunity to seek visitation if it is in the best interests of the child. ²⁵

FOOTNOTES

25 We need not decide the visitation question. Anna never made application to the trial court for nonparent visitation.


Further, we observe that Anna would not find herself in this position but for her own choice. She can hardly claim that state laws, which have the effect of confirming her own initial decision, arbitrarily infringe on her liberty without due process of law.

Finally, as Justice Scalia pointed out, liberty interests have a way of bumping into each other in cases involving husbands, wives, and unmarried individuals when all are claiming parental rights. To hold that Anna has a liberty interest in her relationship with the child is to diminish the liberty interest of Mark and Crispina in their relationship with the child. Given that Mark and Crispina are the "natural parents," due process can hardly be used to deprive them of the traditional parental relationship which they might otherwise be able to enjoy. ²⁶

FOOTNOTES

26 Justice Scalia's plurality opinion and Justice Brennan's dissenting opinion in Michael H. join issue on the degree constitutional law should take into account societal tradition. (Compare 491 U.S. at pp. 140-141 [105 L.Ed.2d at pp. 117-118] (dis. opn. of Brennan, J.) with 491 U.S. at pp. 123-127 [105 L.Ed.2d at pp. 105-108].) There is not, however, even so much as a hint in Justice Brennan's dissent that an interest which has been traditionally recognized by society--such as a married couple's relationship to their natural child--is not a "liberty interest" protectable from arbitrary government interference.

One authority cited by amicus curiae asserts (Note, Looking for a Family Resemblance: The Limits of the Functional Approach to the Legal Definition of Family (1991) 104 Harv.L.Rev. 1640, 1640) that the "traditional nuclear family is rapidly becoming an American anachronism." Even if this is true, it does not mean the traditional relationships inherent within the nuclear family are not subject to constitutional protection.


2

Equal Protection

We must now consider whether the Legislature's determination contravenes the equal protection clauses of our federal and state Constitutions. We think not, because there is no discrimination based on gender in the particular way the Parentage Act applies to this case. The basic choice found in the law--denying parental rights to those who, absent adoption, are shown by blood tests not to be the natural parents in the first place--is rational and not arbitrary.

As we have seen, the Parentage Act prescribes the same procedure to determine whether someone is the natural mother of a child as it prescribes to determine whether someone is the natural father. ²⁷ While one might argue this is not a good idea, it certainly is not gender discrimination. ²⁸

FOOTNOTES

27 We express no opinion on the degree to which the Parentage Act treats parental claims in a gender-neutral manner in other instances.

28 Amicus curiae cites Annas, Fairy Tales Surrogate Mothers Tell (1988) 16 Law, Med. & Health Care 27, 27 for the idea "the core reality of surrogate motherhood is that it is both classist and sexist: a method to obtain children genetically related to white males by exploiting poor women."

Whatever its other merits, this statement seems inapplicable to a nontraditional "gestational" surrogacy case such as this one, whose distinctive feature is to allow a woman to obtain a child genetically related to her.


To the degree the Parentage Act makes a choice between the claims of two different classes of women, the choice certainly is a rational one, even if one believes the choice unwise. As evidence at trial showed, the whole process of human development is "set in motion by the genes." There is not a single organic system of the human body not influenced by an individual's underlying genetic makeup. Genes determine the way physiological components of the human body, such as the heart, liver, or blood vessels operate. Also, according to the expert testimony received at trial, it is now thought that genes influence tastes, preferences, personality styles, manners of speech and mannerisms.

Additionally, and without detracting in any way from the relationship between adoptive parents and their children, genetics is a powerful factor in human relationships. The fact that another person is, literally, developed from a part of oneself can furnish the basis for a profound psychological bond. Heredity can provide a basis of connection between two individuals for the duration of their lives. As the trial judge in this case observed, "we want to know who came before us and who's coming after."

Finally, to interpret the Parentage Act to make Mark the natural father but not allow Crispina to be the natural mother would be gender discrimination.

Anna lays great stress on an opinion of the Committee on Ethics of the American College of Obstetricians and Gynecologists, viewing "the genetic link between the commissioning parent(s) and the resulting infant, while important, [to be] less weighty than the link between surrogate mother and fetus." This committee opinion falls far short of saying that classifying the "commissioning parent(s)" as the natural parents is irrational. Indeed, the opinion acknowledges the genetic link to be "important." In any event, absent some explanation why a classification in favor of the "commissioning parent(s)" is irrational, the committee opinion is irrelevant. The operation of the Parentage Act does not depend on what a group of doctors, however distinguished and learned in their field, think the law ought to be.

E

The Contract

This is not the Baby M case. (See Matter of Baby M, supra, 537 A.2d 1227.) Baby M involved the artificial insemination of a woman who contracted to give up her parental rights to the child. The New Jersey courts in deciding the child's custody had to address whether the contract was enforceable. (Ultimately, the New Jersey Supreme Court decided it was not.)

This case is different. In particular, it can be resolved by applying existing law. Anna does not seek to enforce the contract. Rather, she seeks parental rights based on laws independent of it. Thus even if we were to hold the contract was contrary to public policy and refuse to enforce it, the result would be the same. Therefore, we need not decide whether the contract is enforceable.

The issue of the enforceability of this contract is one which necessarily calls for judicial restraint. It is one thing for a court to decide whether a contract violates public policy, articulated in the Constitution, statutes, and judicial decisions over a period of many years. It is another for a court to decide a contract violates public policy made of whole cloth in a case of first impression. " 'Public policy is a vague expression, and few cases can arise in which its application may not be disputed.' " ( Safeway Stores v. Retail Clerks etc. Assn. (1953) 41 Cal.2d 567, 575 [261 P.2d 721], quoting Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 50 [264 P. 529].)

The issues surrounding the enforceability of "gestational surrogacy" agreements are both new and complex. What if the woman wants to abort the fetus? What if the woman ingests harmful substances and the child is born disabled? What if the fetus needs extraordinary medical assistance prior to birth, assistance which might endanger the woman? These, and other such questions, show the enforceability question to be deeper than one might, at first, suppose. These questions are best left to the Legislature, with the courts deciding them only as a matter of last resort.

F-I ^*

FOOTNOTES

* See footnote, ante, page 977.


[Text omitted.]

IV

CONCLUSION

We join our colleague on the trial bench who, in delivering his decision, underscored the urgent need for legislative action. In particular, we hope the Legislature will tackle the difficult questions attendant to surrogacy agreements so that both parents and children can face the future with certainty over their legal status. Because Anna has not sought to enforce the agreement here, this case may be resolved by looking to law already on the books. The next case may not be capable of such resolution.

Thorny questions about the rights of a "gestational surrogate," remedies in the event of breach of a surrogacy agreement, terms of payment and termination of pregnancy cry out for legislative guidelines. To the extent these issues present questions of law, they are matters for legislative resolution subject to constitutional restraint. They should not be settled by the judiciary applying its own ideas of what is good "public policy." Our system of government does not make the courts de facto "philosopher-kings." ³⁴ In this case, the law of California, as worded by our Legislature, requires us to conclude Mark and Crispina are the natural and legal parents of the child. The judgment of the trial court is therefore correct, and accordingly affirmed.

FOOTNOTES

34 See Plato, The Republic, book V, page 473d


Sonenshine, J., and Moore, J., concurred.