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In Vitro Fertilization and the
Law
Gestational Surrogacy
Next to Belgium, California courts provide
arguably the most friendly venues for adjudication of surrogacy
arrangements, in the world. This is due, in large part,
to the 1993 California Supreme Court decision in Johnson
v. Calvert (1993) 5 Cal. 4th 84.
In Johnson v. Calvert, a husband
and wife brought suit seeking declaration that they were
the legal parents of a child born to a Surrogate. However,
despite producing the embryo and having made a contractual
agreement for the Intended Parents to have legal custody
of the child, the Surrogate attempted to file her own action
to be declared the mother of the child. The court concluded
that the Intended Parents were the child’s legal parents,
and that California law recognized only one natural mother,
despite advances in reproductive technology rendering a
different outcome biologically possible.
The Supreme Court in Johnson relied,
in pertinent part, on the Uniform Parentage Act (the "Act")
(see West’s Ann. Cal. Family Code Secs. 7600 et seq.)
which "facially" applies to any parentage determination.
Pursuant to the Act, the Court recognized that both genetic
consanguinity and giving birth as means of establishing
a mother and child relationship, a situation may arise where
the two means do not coincide in one woman. In this instance,
the Court asserted, the woman who intends to bring about
the birth of the child that she intends to raise as her
own, is the "natural mother."
Premised on the California Supreme Court
case of Johnson v. Calvert, and the California
courts’ most contemporary interpretation of the Uniform
Parentage Act, the Intended Parents’ attorneys will
file legal documents in the jurisdiction in which their
baby is about to be born. Once the documents to establish
maternity and paternity are filed and executed by a California
Superior Court judge, custody to the unborn child is awarded
to the Intended Parents as soon after birth as medical considerations
will allow, and the financial responsibility for the child
to be born rests solely with the Intended Parents. Further,
the Court orders the attending physician responsible for
delivering the unborn child, and the hospital where the
child will be delivered, to enter the names of the Intended
Parents on the original birth certificate. This adjudication
eliminates the necessity of any adoption proceedings and
legally recognizes the intended relationship that the parties
had created. Moreover, the Judgment of Maternity and Paternity
terminates any parental rights which may have vested in
the surrogate and her husband.
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