California Surrogacy Law
California is generally accepting of surrogacy agreements, particularly when the couple seeking surrogacy has contributed some of the genetic material. While the state has no statute directly addressing surrogacy, state courts have used the Uniform Parentage Act to interpret several cases concerning surrogacy agreements. In fact, one of the most influential cases regarding surrogacy rights (Johnson v. Calvert) was decided in in California.
In 1993's Johnson v. Calvert, the California Supreme Court held that the intended parents in a gestational-surrogacy agreement (an agreement in which the carrying mother had no genetic relationship to the baby) should be recognized as the natural and legal parents. Since the intended mother donated the egg but the surrogate mother gave birth, the court decided that the person who intended to procreate should be considered the natural mother.
A 1998 case, Buzzanca v. Buzzanca, addressed the issue of traditional surrogacy agreements in which the surrogate mother has been artificially inseminated. In this case, a surrogate mother was impregnated using her egg and anonymous sperm. In other words, neither of the intended parents had a genetic link to the child. The court found that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are the lawful parents of the child. Another similar 1998 case, In Re Marriage of Moschetta, dealt with the same issue, except that the intended parents had separated. In that case, the court awarded legal parent rights to the intended father and surrogate mother.
It is unclear what result would come from a same-sex couple attempting to use surrogacy in California to start a family. California seems to rely heavily on the "intent of the parties," but the Buzzanca case only speaks to married couples and Moschetta seems to emphasize the importance of a committed relationship, if not a marriage, between the intended parents. A bill, AB25, signed in 2001 by Democratic Gov. Gray Davis extending domestic partner rights may strengthen same-sex couples' rights in the surrogacy context.
California Family Code § 7540 (2001); Johnson v. Calvert, 5 Cal. 4th 84 (Cal. 1993); Buzzanca v. Buzzanca, 61 Cal. App. 4th 1410 (Cal. Ct. App. 4th 1998); In Re Marriage of Moschetta, 25 Cal. App. 4th 1218 (Cal. Ct. App. 4th 1994).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 12/20/2002