Johnson v. Calvert

• Decision Date: 20 May 1993
• Docket Number: No. S023721,S023721
• Citation: 19 Cal.Rptr.2d 494,851 P.2d 776,5 Cal.4th 84
• Parties: , 851 P.2d 776, 61 USLW 2721 Anna JOHNSON, Plaintiff and Appellant, v. Mark CALVERT et al., Defendants and Respondents.
• Court: California Supreme Court

Page 494

19 Cal.Rptr.2d 494

5 Cal.4th 84, 851 P.2d 776, 61 USLW 2721

Anna JOHNSON, Plaintiff and Appellant, v. Mark CALVERT et al., Defendants and Respondents.

No. S023721.

Supreme Court of California In Bank.

May 20, 1993.

Richard C. Gilbert and Diane J. Marlowe, Orange, for plaintiff and appellant.

Van Deusen, Youmans & Walmsley, Christian R. Van Deusen and Robert R. Walmsley, Santa Ana, for defendants and respondents.

Harold LaFlamme, Michelle Ben-Hur, John L. Dodd and Karen J. Dodd, Santa Ana, for minor.

Jon Davidson, Paul L. Hoffman, Carol A. Sobel, Rogers & Wells, Rebecca C. Klipfel and Suzanne M. Madison, Los Angeles, as amici curiae.

PANELLI, Justice.

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 ¹ formed of the gametes ² 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.

FACTS ³

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. 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. The 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, 88 S.Ct. 1509, 20 L.Ed.2d 436 [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, 88 S.Ct. 1515, 20 L.Ed.2d 441 [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), emphasis 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 born 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].) Alternati...