Surrogate Parental Rights California
In Johnson v. Calvert, 5 Cal. 4th 84, 19 Cal. Rptr.2d 494, 851 P.2d 776, cert. denied 510 U.S. 874, 114 S. Ct. 206, 126 L. Ed. 2d 163, cert. dismissed 510 U.S. 938, 114 S. Ct. 374, 126 L. Ed. 2d 324 (1993), Mr. and Mrs. Calvert were approached by Ms. Johnson who volunteered to act as a surrogate after learning from a mutual acquaintance of Mrs. Calvert's inability to carry a baby. Id. at 87, 851 P.2d 776.
The parties entered into a contract which provided that Ms. Johnson would carry to term an embryo fertilized with Mr. Calvert's sperm and Mrs. Calvert's egg. Id.
Ms. Johnson agreed to relinquish all parental rights to the couple who in turn would raise the child. As consideration, the Calverts agreed to pay Johnson $ 10,000 and to obtain and pay for a $ 200,000 insurance policy on Ms. Johnson's life. Id.
Relations between the parties deteriorated when the Calverts learned of Ms. Johnson's previous miscarriages and still births, and Ms. Johnson discovered that the Calverts never obtained the life insurance policy. Ms. Johnson demanded payment of the $ 10,000 and threatened to keep the baby if the Calvert's did not pay. Id. at 88, 851 P.2d 776.
Both parties filed petitions with the court seeking to be declared the legal parents of the unborn child. Id. Mrs. Calvert and Ms. Johnson both claimed to be the baby's natural mother. Id. at 93, 851 P.2d 776.
The baby was born while the litigation was still pending and blood tests conclusively showed that Mrs. Calvert and not Ms. Johnson was the baby's mother. Id. at 88, 851 P.2d 776.
The California Supreme Court ruled that a gestational surrogate has no parental rights to the child she carries because the infant is not genetically linked to her.
The Court gave substantial weight to the fact that the parties intended to bring about the birth of an infant by means of a surrogacy arrangement, and not to donate an embryo to Ms. Johnson. Id. at 93, 851 P.2d 776. the Calverts "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." Id.
Though Ms. Johnson's decision to carry the baby was necessary to facilitate the Calverts' intent, she would not have had the opportunity to gestate the embryo had she manifested an intent to keep the baby. Id.
The Court concluded that the legal mother is the woman who intended to bring about the conception of the baby with the intent to raise him/her. Id.
The issue of a pre-birth order was moot in Calvert as the litigation concluded after the birth of the child.