SUPREME COURT OF CALIFORNIA (May 20, 1993, Decided)
5 Cal. 4th 84; 851 P.2d 776; 1993 Cal. LEXIS 2474;
19 Cal. Rptr. 2d 494; 93 Cal. Daily Op. Service 3739; 93 Daily
Journal DAR 6409.
OPINION BY: 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 zygote  formed of
the gametes  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.
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 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 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.
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.
DETERMINING MATERNITY UNDER THE UNIFORM PARENTAGE ACT
The Uniform Parentage Act (the Act) was part of a package of legislation
introduced in 1975 ... The legislation's purpose was to eliminate
the legal distinction between legitimate and illegitimate children.
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 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. ...
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 may demonstrate that he is the natural father through genetic
markers identified in blood testing.] ...
[W]e 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. 
... We see no clear legislative preference in Civil Code section
7003 as between blood testing evidence and proof of having given
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. 
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 born but for the
efforts of the intended parents. . . . [P] . . . [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
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 gestate
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. ...
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'
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
The argument that a woman cannot knowingly and intelligently agree
to gestate 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.
DISSENTBY: KENNARD, J.,
When a woman who wants to have a child provides her fertilized
ovum to another woman who carries it through pregnancy and gives
birth to a child, who is the child's legal mother? Unlike the majority,
I do not agree that the determinative consideration should be the
intent to have the child that originated with the woman who contributed
the ovum. In my view, the woman who provided the fertilized ovum
and the woman who gave birth to the child both have substantial
claims to legal motherhood. Pregnancy entails a unique commitment,
both psychological and emotional, to an unborn child. No less substantial,
however, is the contribution of the woman from whose egg the child
developed and without whose desire the child would not exist. ...
Surrogacy proponents generally contend that gestational surrogacy,
like the other reproductive technologies that extend the ability
to procreate to persons who might not otherwise be able to have
children, enhances "individual freedom, fulfillment and responsibility." (Shultz,
Reproductive Technology, supra, 1990 Wis.L.Rev. 297, 303.) Under
this view, women capable of bearing children should be allowed
to freely agree to be paid to do so by infertile couples desiring
to form a family. (Shalev, Birth Power: The Case for Surrogacy,
supra, at p. 145 [arguing for a "free market in reproduction" in
which the "reproducing woman" operates as an "autonomous
moral and economic agent"]; see also Posner, Economic Analysis
of Law (3d ed. 1986) p. 139; Landes & Posner, The Economics
of the Baby Shortage (1978) 7 J. Legal Stud. 323 [proposing a "market
in babies"].) The "surrogate mother" is expected "to
weigh the prospective investment in her birthing labor" before
entering into the arrangement, and, if her "autonomous reproductive
decision" is "voluntary," she should be held responsible
for it so as "to fulfill the expectations of the other parties
. . .." (Shalev, Birth Power: The Case for Surrogacy, supra,
at p. 96.) ...
Surrogacy critics, however, maintain that the payment of money
for the gestation and relinquishment of a child threatens the economic
exploitation of poor women who may be induced to engage in commercial
surrogacy arrangements out of financial need. (Capron & Radin,
Choosing Family Law Over Contract Law as a Paradigm for Surrogate
Motherhood, in Surrogate Motherhood, supra, p. 62.) Some fear the
development of a "breeder" class of poor women who will
be regularly employed to bear children for the economically advantaged.
(See Women and Children Used in Systems of Surrogacy: Position
Statement of the Institute on Women and Technology, in Surrogate
Motherhood, supra, at p. 322; and Corea, Junk Liberty, testimony
before Cal. Assem. Judiciary Com., April 5, 1988, in Surrogate
Motherhood, supra, at pp. 325, 335.) Others suggest that women
who enter into surrogacy arrangements may underestimate the psychological
impact of relinquishing a child they have nurtured in their bodies
for nine months. (See Macklin, Artificial Means of Reproduction
and Our Understanding of the Family, supra, 21 Hastings Center
Rep. 5, 10.)
Gestational surrogacy is also said to be "dehumanizing" (Capron & Radin,
Choosing Family Law Over Contract Law as a Paradigm for Surrogate
Motherhood, in Surrogate Motherhood, supra, at p. 62) and to "commodify" women
and children by treating the female reproductive capacity and the
children born of gestational surrogacy arrangements as products
that can be bought and sold (Radin, Market-Inalienability (1987)
100 Harv.L.Rev. 1849, 1930-1932). The commodification of women
and children, it is feared, will reinforce oppressive gender stereotypes
and threaten the well-being of all children. (Medical Technology,
supra, 103 Harv.L.Rev. 1519, 1550; Annas, Fairy Tales Surrogate
Mothers Tell, in Surrogate Motherhood, supra, p. 50.) Some critics
foresee promotion of an ever-expanding "business of surrogacy
brokerage." (E.g., Goodwin, Determination of Legal Parentage,
supra, 26 Fam.L.Q. at p. 283.)
Whether surrogacy contracts are viewed as personal service agreements
or agreements for the sale of the child born as the result of the
agreement, commentators critical of contractual surrogacy view
these contracts as contrary to public policy and thus not enforceable.
(Radin, Market- Inalienability, supra, 100 Harv.L.Rev. at p. 1924,
fn. 261; Capron & Radin, Choosing Family Law Over Contract
Law as a Paradigm for Surrogate Motherhood, supra, in Surrogate
Motherhood, at pp. 62-63; see also Krimmel, Can Surrogate Parenting
Be Stopped? An Inspection of the Constitutional and Pragmatic Aspects
of Outlawing Surrogate Mother Arrangements (1992) 27 Val.U.L.Rev.
1, 4-5.) ...
V. MODEL LEGISLATION
The debate over whom the law should recognize as the legal mother
of a child born of a gestational surrogacy arrangement prompted
the National Conference of Commissioners on Uniform State Laws
to propose the Uniform Status of Children of Assisted Conception
Act. (9B West's U. Laws Ann. (1992 Supp.) Uniform Status of Children
of Assisted Conception Act (1988 Act) pp. 122-137 [hereafter also
USCACA].) This model legislation addresses many of the concerns
In its key components, the proposed legislation provides that "a
woman who gives birth to a child is the child's mother" (USCACA, § 2)
unless a court has approved a surrogacy agreement before conception
(USCACA, § 5, 6). In the absence of such court approval, any
surrogacy agreement would be void. (USCACA, § 5, subd. (b).)
If, however, the arrangement for gestational surrogacy has court
approval, "the intended parents are the parents of the child." (USCACA, § 8,
subd. (a)(1).) ...
VII. ANALYSIS OF THE MAJORITY'S "INTENT" TEST
... Ultimately, however, I cannot agree that "intent" is
the appropriate test for resolving this case.
The majority offers four arguments in support of its conclusion
to rely on the intent of the genetic mother as the exclusive determinant
for deciding who is the natural mother of a child born of gestational
surrogacy. Careful examination, however, demonstrates that none
of the arguments mandates the majority's conclusion.
The first argument that the majority uses in support of its conclusion
that the intent of the genetic mother to bear a child should be
dispositive of the question of motherhood is "but-for" causation.
Specifically, the majority relies on a commentator who writes that
in a gestational surrogacy arrangement, " 'the child would
not have been born but for the efforts of the intended parents." (Maj.
opn., ante, at p. 94, quoting 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, 415, original italics omitted, italics added.)
The majority's resort to "but-for" causation is curious.
The concept of "but-for" causation is a "test used
in determining tort liability . . .." (Black's Law Dict. (6th
ed. 1990) p. 200.) In California, the test for causation is whether
the conduct was a "substantial factor" in bringing about
the event. ( Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049,
1054, 1056 [1 Cal.Rptr.2d 913] [disapproving "but-for" jury
instruction in tort cases].) Neither test for causation assists
the majority, as I shall discuss.
The proposition that a woman who gives birth to a child after
carrying it for nine months is a "substantial factor" in
the child's birth cannot reasonably be debated. Nor can it reasonably
be questioned that "but for" the gestational mother,
there would not be a child. Thus, the majority's reliance on principles
of causation is misplaced. Neither the "but for" nor
the "substantial factor" test of causation provides any
basis for preferring the genetic mother's intent as the determinative
factor in gestational surrogacy cases: Both the genetic and the
gestational mothers are indispensable to the birth of a child in
a gestational surrogacy arrangement.
Behind the majority's reliance on "but-for" causation
as justification for its intent test is a second, closely related
argument. The majority draws its second rationale from a student
note: " 'The mental concept of the child is a controlling
factor of its creation, and the originators of that concept merit
full credit as conceivers.' " (Maj. opn., ante, at p. 94,
quoting Note, Redefining Mother: A Legal Matrix for New Reproductive
Technologies (1986) 96 Yale L.J. 187, 196.)
The "originators of the concept" rationale seems comfortingly
familiar. The reason it seems familiar, however, is that it is
a rationale that is frequently advanced as justifying the law's
protection of intellectual property. As stated by one author, "an
idea belongs to its creator because the idea is a manifestation
of the creator's personality or self." (Hughes, The Philosophy
of Intellectual Property (1988) 77 Geo. L.J. 287, 330.) Thus, it
may be argued, just as a song or invention is protected as the
property of the "originator of the concept," so too a
child should be regarded as belonging to the originator of the
concept of the child, the genetic mother.
The problem with this argument, of course, is that children are
not property. Unlike songs or inventions, rights in children cannot
be sold for consideration, or made freely available to the general
public. Our most fundamental notions of personhood tell us it is
inappropriate to treat children as property. Although the law may
justly recognize that the originator of a concept has certain property
rights in that concept, the originator of the concept of a child
can have no such rights, because children cannot be owned as property.
Accordingly, I cannot endorse the majority's "originators
of the concept" or intellectual property rationale for employing
intent to break the "tie" between the genetic mother
and the gestational mother of the child.
Next, the majority offers as its third rationale the notion that
bargained-for expectations support its conclusion regarding the
dispositive significance of the genetic mother's intent. Specifically,
the majority states that " 'intentions that are voluntarily
chosen, deliberate, express and bargained-for ought presumptively
to determine legal parenthood.' " (Maj. opn., ante, at p.
94, quoting Schultz, Reproductive Technology, supra, 1990 Wis.
L.Rev. at p. 323.)
It is commonplace that, in real or personal property transactions
governed by contracts, "intentions that are voluntarily chosen,
deliberate, express and bargained-for" ought presumptively
to be enforced and, when one party seeks to escape performance,
the court may order specific performance. (See, e.g., § 3384
et seq.; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 21,
p. 698.) But the courts will not compel performance of all contract
obligations. For instance, even when a party to a contract for
personal services (such as employment) has wilfully breached the
contract, the courts will not order specific enforcement of an
obligation to perform that personal service. (§ 3390; see
11 Witkin, Summary of Cal. Law, supra, Equity, § 59, p. 736.)
The unsuitability of applying the notion that, because contract
intentions are "voluntarily chosen, deliberate, express and
bargained-for," their performance ought to be compelled by
the courts is even more clear when the concept of specific performance
is used to determine the course of the life of a child. Just as
children are not the intellectual property of their parents, neither
are they the personal property of anyone, and heir delivery cannot
be ordered as a contract remedy on the same terms that a court
would, for example, order a breaching party to deliver a truckload
of nuts and bolts. ...
I shall discuss two additional considerations, not noted by the
majority, that in my view also weigh against utilizing the intent
of the genetic mother as the sole determinant of the result in
this case and others like it.
First, in making the intent of the genetic mother who wants to
have a child the dispositive factor, the majority renders a certain
result preordained and inflexible in every such case: as between
an intending genetic mother and a gestational mother, the genetic
mother will, under the majority's analysis, always prevail. The
majority recognizes no meaningful contribution by a woman who agrees
to carry a fetus to term for the genetic mother beyond that of
mere employment to perform a specified biological function.
The majority's approach entirely devalues the substantial claims
of motherhood by a gestational mother such as Anna. True, a woman
who enters into a surrogacy arrangement intending to raise the
child has by her intent manifested an assumption of parental responsibility
in addition to her biological contribution of providing the genetic
material. (See Adoption of Kelsey S., supra, 1 Cal.4th at pp. 838,
849.) But the gestational mother's biological contribution of carrying
a child for nine months and giving birth is likewise an assumption
of parental responsibility. (See Dolgin, Just a Gene: Judicial
Assumptions About Parenthood (1993) 40 UCLA L.Rev. 637, 659.) A
pregnant woman's commitment to the unborn child she carries is
not just physical; it is psychological and emotional as well. The
United States Supreme Court made a closely related point in Lehr
v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985],
explaining that a father's assertion of parental rights depended
on his having assumed responsibility for the child after its birth,
whereas a mother's "parental relationship is clear" because
she "carries and bears the child." ( at p. 260, fn. 16
[ 77 L.Ed.2d at p. 626], quoting Caban v. Mohammed (1979) 441 U.S.
380, 397 [60 L.Ed.2d 297, 310, 99 S.Ct. 1760] (dis. opn. of Stewart,
J.).) This court too has acknowledged that a pregnant
woman and her unborn child comprise a "unique physical unit" and
that the welfare of each is "intertwined and inseparable." (
Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1080 [9 Cal.Rptr.2d
615, 831 P.2d 1197].) Indeed, a fetus would never develop into
a living child absent its nurturing by the pregnant woman. (See
Tribe, American Constitutional Law (2d ed. 1988) at p. 1357, citing
Law, Rethinking Sex and the Constitution (1984) 132 U.Pa.L.Rev.
955, 1023.) A pregnant woman intending to bring a child into the
world is more than a mere container or breeding animal; she is
a conscious agent of creation no less than the genetic mother,
and her humanity is implicated on a deep level. Her role should
not be devalued.
Copyright © 2001, LEXIS-NEXIS®,
a division of Reed Elsevier Inc. All Rights Reserved.
 An organism produced by the union of two gametes. (McGraw-Hill
Dict. of Scientific and Technical Terms (4th ed. 1989) p. 783.)
 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.)
 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.
 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.