Harold J. Cassidy and Alan J. Karcher argued the cause for appellants, Mary Beth and Richard Whitehead (Cassidy, Foss & San Filippo, attorneys; Harold J. Cassidy, Alan J. Karcher, Robert W. Ruggieri, Randolph H. Wolf, and Louis N. Rainone, on the briefs).

Gary N. Skoloff argued the cause for respondents, William and Elizabeth Stern (Skoloff & Wolfe, attorneys; Gary N. Skoloff, Francis W. Donahue, and Edward J. O'Donnell, on the brief).

Lorraine A. Abraham, Guardian ad litem, argued the cause pro se (Lorraine A. Abraham, attorney; Lorraine A. Abraham and Steven T. Kearns, on the brief).

Annette M. Tobia submitted a brief on behalf of amicus curiae Dr. Betsy P. Aigen, (Spivak & Tobia, attorneys).

George B. Gelman submitted a brief on behalf of amicus curiae American Adoption Congress (Gelman & McNish, attorneys).

Steven N. Taieb and Steven F. McDowell, a member of the Wisconsin bar, submitted a brief on behalf of amicus curiae Catholic League for Religious and Civil Rights.

Steven P. Weissman submitted a brief on behalf of amicus curiae Communications Workers of America, AFL-CIO.

John R. Holsinger, Merrill O'Brien, Mary Sue Henifin, and John H. Hall, and Terry E. Thornton, members of the New York bar, submitted a brief on behalf of amicus curiae Concerned United Birthparents, Inc. (Ellenport & Holsinger, attorneys).

David H. Dugan, III, and Joy R. Jowdy, a member of the Texas bar, submitted a brief on behalf of amici curiae Concerned Women for America, Eagle Forum, National Legal Foundation, Family Research Council of America, United Families Foundation, and Judicial Reform Project.

Alfred F. Russo and Andrew C. Kimbrell, a member of the Pennsylvania bar, and Edward Lee Rogers, a member of the District of Columbia bar, submitted a brief on behalf of amici curiae The Foundation on Economic Trends, Jeremy Rifkin, Betty Friedan, Gloria Steinem, Gena Corea, Barbara Katz-Rothman, Lois Gould, Marilyn French, Hazel Henderson, Grace Paley, Evelyn Fox Keller, Shelly Mindin, Rita Arditti, Dr. Janice Raymond, Dr. Michelle Harrison, Dr. W.D. White, Sybil Shainwald, Mary Daly, Cathleen Lahay, Karen Malpede, Phylis Chesler, Kristen Golden, Letty Cottin Pogrebin, and Ynestra King (Russo & Casey, attorneys).

Louis E. Della Torre, Jr., submitted a brief on behalf of amicus curiae The Gruter Institute for Law and Behavioral Research, Inc. (Schumann, Hession, Kennelly & Dorment, attorneys).

Kathleen E. Kitson, Sharon F. Liebhaber, and Myra Sun, a member of the Washington bar, submitted a brief on behalf of amici curiae Hudson County Legal Services Corporation and National Center on Women and Family Law, Inc. (Timothy K. Madden, Director, Hudson County Legal Services Corporation, attorney).

Priscilla Read Chenoweth submitted a brief on behalf of amici curiae Committee for Mother and Child Rights, Inc. and Origins.

Herbert D. Hinkle submitted a brief on behalf of amicus curiae National Association of Surrogate Mothers.

Joseph M. Nardi, Jr., and Edward F. Canfield, a member of the District of Columbia bar, submitted a brief on behalf of amicus curiae The National Committee for Adoption, Inc. (Lario, Nardi & Gleaner, attorneys).

Charlotte Rosin, pro se, submitted a letter in lieu of brief on behalf of amicus curiae National Infertility Network Exchange.

William F. Bolan, Jr., submitted a brief on behalf of amicus curiae New Jersey Catholic Conference.

Paul J. McCurrie and Cyril C. Means, Jr., a member of the Michigan bar, with whom Priscilla Read Chenoweth and Cathleen M. Halko were on the brief, submitted a brief on behalf of amici curiae Odyssey Institute International, Inc., Odyssey Institute of Connecticut, Inc., Florence Fisher, Judianne Densen-Gerber, Senator Connie Binsfeld, and Angela Holder.

Merrilee A. Scilla, pro se, submitted a letter in lieu of brief on behalf of amicus curiae RESOLVE of Central New Jersey.

Jerrold N. Kaminsky submitted a brief on behalf of amicus curiae RESOLVE, Inc.

Richard J. Traynor and John W. Whitehead, a member of the Virginia bar, and David A. French, a member of the Michigan bar, submitted a brief on behalf of amicus curiae The Rutherford Institute (Traynor and Hogan, attorneys).

Nadine Taub submitted a brief on behalf of amici curiae Women's Rights Litigation Clinic at Rutgers Law School, The New York State Coalition on Women's Legislative Issues, and the National Emergency Civil Liberties Committee.

Table of Contents     

Introduction 410

I.Facts 411

II.Invalidity and Unenforceability of Surrogacy Contract 421

A. Conflict with Statutory Provisions 423

B. Public Policy Considerations 434

III. Termination 444

IV. Constitutional Issues 447

V. Custody 452

VI. Visitation 463

Conclusion 468

The opinion of the Court was delivered by WILENTZ, C.J.

In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman's husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child's natural mother will thereafter be forever separated from her child. The wife is to adopt the child, and she and the natural father are to be [411] regarded as its parents for all purposes. The contract providing for this is called a "surrogacy contract," the natural mother inappropriately called the "surrogate mother."

We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a "surrogate" mother illegal, perhaps criminal, and potentially degrading to women. Although in this case we grant custody to the natural father, the evidence having clearly proved such custody to be in the best interests of the infant, we void both the termination of the surrogate mother's parental rights and the adoption of the child by the wife/stepparent. We thus restore the "surrogate" as the mother of the child. We remand the issue of the natural mother's visitation rights to the trial court, since that issue was not reached below and the record before us is not sufficient to permit us to decide it de novo.

We find no offense to our present laws where a woman voluntarily and without payment agrees to act as a "surrogate" mother, provided that she is not subject to a binding agreement to surrender her child. Moreover, our holding today does not preclude the Legislature from altering the current statutory scheme, within constitutional limits, so as to permit surrogacy contracts. Under current law, however, the surrogacy agreement before us is illegal and invalid.

I.

FACTS

In February 1985, William Stern and Mary Beth Whitehead entered into a surrogacy contract. It recited that Stern's wife, Elizabeth, was infertile, that they wanted a child, and that Mrs. Whitehead was willing to provide that child as the mother with Mr. Stern as the father.

The contract provided that through artificial insemination using Mr. Stern's sperm, Mrs. Whitehead would become pregnant, carry the child to term, bear it, deliver it to the Sterns, and thereafter do whatever was necessary to terminate her maternal rights so that Mrs. Stern could thereafter adopt the child. Mrs. Whitehead's husband, Richard,^[1] was also a party to the contract; Mrs. Stern was not. Mr. Whitehead promised to do all acts necessary to rebut the presumption of paternity under the Parentage Act. N.J.S.A. 9:17-43a(1), -44a. Although Mrs. Stern was not a party to the surrogacy agreement, the contract gave her sole custody of the child in the event of Mr. Stern's death. Mrs. Stern's status as a nonparty to the surrogate parenting agreement presumably was to avoid the application of the baby-selling statute to this arrangement. N.J.S.A. 9:3-54.

Mr. Stern, on his part, agreed to attempt the artificial insemination and to pay Mrs. Whitehead $10,000 after the child's birth, on its delivery to him. In a separate contract, Mr. Stern agreed to pay $7,500 to the Infertility Center of New York ("ICNY"). The Center's advertising campaigns solicit surrogate mothers and encourage infertile couples to consider surrogacy. ICNY arranged for the surrogacy contract by bringing the parties together, explaining the process to them, furnishing the contractual form,^[2] and providing legal counsel.

The history of the parties' involvement in this arrangement suggests their good faith. William and Elizabeth Stern were married in July 1974, having met at the University of Michigan, where both were Ph.D. candidates. Due to financial considerations and Mrs. Stern's pursuit of a medical degree and residency, they decided to defer starting a family until 1981. Before then, however, Mrs. Stern learned that she might have multiple sclerosis and that the disease in some cases renders pregnancy a serious health risk. Her anxiety appears to have exceeded the actual risk, which current medical authorities assess as minimal. Nonetheless that anxiety was evidently quite real, Mrs. Stern fearing that pregnancy might precipitate blindness, paraplegia, or other forms of debilitation. Based on the perceived risk, the Sterns decided to forego having their own children. The decision had special significance for Mr. Stern. Most of his family had been destroyed in the Holocaust. As the family's only survivor, he very much wanted to continue his bloodline.

Initially the Sterns considered adoption, but were discouraged by the substantial delay apparently involved and by the potential problem they saw arising from their age and their differing religious backgrounds. They were most eager for some other means to start a family.

The paths of Mrs. Whitehead and the Sterns to surrogacy were similar. Both responded to advertising by ICNY. The Sterns' response, following their inquiries into adoption, was the result of their long-standing decision to have a child. Mrs. Whitehead's response apparently resulted from her sympathy with family members and others who could have no children (she stated that she wanted to give another couple the "gift of life"); she also wanted the $10,000 to help her family.

Both parties, undoubtedly because of their own self-interest, were less sensitive to the implications of the transaction than they might otherwise have been. Mrs. Whitehead, for instance, appears not to have been concerned about whether the Sterns would make good parents for her child; the Sterns, on their part, while conscious of the obvious possibility that surrendering the child might cause grief to Mrs. Whitehead, overcame their qualms because of their desire for a child. At any rate, both the Sterns and Mrs. Whitehead were committed to the arrangement; both thought it right and constructive.

Mrs. Whitehead had reached her decision concerning surrogacy before the Sterns, and had actually been involved as a potential surrogate mother with another couple. After numerous unsuccessful artificial inseminations, that effort was abandoned. Thereafter, the Sterns learned of the Infertility Center, the possibilities of surrogacy, and of Mary Beth Whitehead. The two couples met to discuss the surrogacy arrangement and decided to go forward. On February 6, 1985, Mr. Stern and Mr. and Mrs. Whitehead executed the surrogate parenting agreement. After several artificial inseminations over a period of months, Mrs. Whitehead became pregnant. The pregnancy was uneventful and on March 27, 1986, Baby M was born.

Not wishing anyone at the hospital to be aware of the surrogacy arrangement, Mr. and Mrs. Whitehead appeared to all as the proud parents of a healthy female child. Her birth certificate indicated her name to be Sara Elizabeth Whitehead and her father to be Richard Whitehead. In accordance with Mrs. Whitehead's request, the Sterns visited the hospital unobtrusively to see the newborn child.

Mrs. Whitehead realized, almost from the moment of birth, that she could not part with this child. She had felt a bond with it even during pregnancy. Some indication of the attachment was conveyed to the Sterns at the hospital when they told Mrs. Whitehead what they were going to name the baby. She apparently broke into tears and indicated that she did not know if she could give up the child. She talked about how the baby looked like her other daughter, and made it clear that she was experiencing great difficulty with the decision.

Nonetheless, Mrs. Whitehead was, for the moment, true to her word. Despite powerful inclinations to the contrary, she turned her child over to the Sterns on March 30 at the Whiteheads' home.

The Sterns were thrilled with their new child. They had planned extensively for its arrival, far beyond the practical furnishing of a room for her. It was a time of joyful celebration — not just for them but for their friends as well. The Sterns looked forward to raising their daughter, whom they named Melissa. While aware by then that Mrs. Whitehead was undergoing an emotional crisis, they were as yet not cognizant of the depth of that crisis and its implications for their newly-enlarged family.

Later in the evening of March 30, Mrs. Whitehead became deeply disturbed, disconsolate, stricken with unbearable sadness. She had to have her child. She could not eat, sleep, or concentrate on anything other than her need for her baby. The next day she went to the Sterns' home and told them how much she was suffering.

The depth of Mrs. Whitehead's despair surprised and frightened the Sterns. She told them that she could not live without her baby, that she must have her, even if only for one week, that thereafter she would surrender her child. The Sterns, concerned that Mrs. Whitehead might indeed commit suicide, not wanting under any circumstances to risk that, and in any event believing that Mrs. Whitehead would keep her word, turned the child over to her. It was not until four months later, after a series of attempts to regain possession of the child, that Melissa was returned to the Sterns, having been forcibly removed from the home where she was then living with Mr. and Mrs. Whitehead, the home in Florida owned by Mary Beth Whitehead's parents.

The struggle over Baby M began when it became apparent that Mrs. Whitehead could not return the child to Mr. Stern. Due to Mrs. Whitehead's refusal to relinquish the baby, Mr. Stern filed a complaint seeking enforcement of the surrogacy contract. He alleged, accurately, that Mrs. Whitehead had not only refused to comply with the surrogacy contract but had threatened to flee from New Jersey with the child in order to avoid even the possibility of his obtaining custody. The court papers asserted that if Mrs. Whitehead were to be given notice of the application for an order requiring her to relinquish custody, she would, prior to the hearing, leave the state with the baby. And that is precisely what she did. After the order was entered, ex parte, the process server, aided by the police, in the presence of the Sterns, entered Mrs. Whitehead's home to execute the order. Mr. Whitehead fled with the child, who had been handed to him through a window while those who came to enforce the order were thrown off balance by a dispute over the child's current name.

The Whiteheads immediately fled to Florida with Baby M. They stayed initially with Mrs. Whitehead's parents, where one of Mrs. Whitehead's children had been living. For the next three months, the Whiteheads and Melissa lived at roughly twenty different hotels, motels, and homes in order to avoid apprehension. From time to time Mrs. Whitehead would call Mr. Stern to discuss the matter; the conversations, recorded by Mr. Stern on advice of counsel, show an escalating dispute about rights, morality, and power, accompanied by threats of Mrs. Whitehead to kill herself, to kill the child, and falsely to accuse Mr. Stern of sexually molesting Mrs. Whitehead's other daughter.

Eventually the Sterns discovered where the Whiteheads were staying, commenced supplementary proceedings in Florida, and obtained an order requiring the Whiteheads to turn over the child. Police in Florida enforced the order, forcibly removing the child from her grandparents' home. She was soon thereafter brought to New Jersey and turned over to the Sterns. The prior order of the court, issued ex parte, awarding custody of the child to the Sterns pendente lite, was reaffirmed by the trial court after consideration of the certified representations of the parties (both represented by counsel) concerning the unusual sequence of events that had unfolded. Pending final judgment, Mrs. Whitehead was awarded limited visitation with Baby M.

The Sterns' complaint, in addition to seeking possession and ultimately custody of the child, sought enforcement of the surrogacy contract. Pursuant to the contract, it asked that the child be permanently placed in their custody, that Mrs. Whitehead's parental rights be terminated, and that Mrs. Stern be allowed to adopt the child, i.e., that, for all purposes, Melissa become the Sterns' child.

The trial took thirty-two days over a period of more than two months. It included numerous interlocutory appeals and attempted interlocutory appeals. There were twenty-three witnesses to the facts recited above and fifteen expert witnesses, eleven testifying on the issue of custody and four on the subject of Mrs. Stern's multiple sclerosis; the bulk of the testimony was devoted to determining the parenting arrangement most compatible with the child's best interests. Soon after the conclusion of the trial, the trial court announced its opinion from the bench. 217 N.J. Super. 313 (1987). It held that the surrogacy contract was valid; ordered that Mrs. Whitehead's parental rights be terminated and that sole custody of the child be granted to Mr. Stern; and, after hearing brief testimony from Mrs. Stern, immediately entered an order allowing the adoption of Melissa by Mrs. Stern, all in accordance with the surrogacy contract. Pending the outcome of the appeal, we granted a continuation of visitation to Mrs. Whitehead, although slightly more limited than the visitation allowed during the trial.

Although clearly expressing its view that the surrogacy contract was valid, the trial court devoted the major portion of its opinion to the question of the baby's best interests. The inconsistency is apparent. The surrogacy contract calls for the surrender of the child to the Sterns, permanent and sole custody in the Sterns, and termination of Mrs. Whitehead's parental rights, all without qualification, all regardless of any evaluation of the best interests of the child. As a matter of fact the contract recites (even before the child was conceived) that it is in the best interests of the child to be placed with Mr. Stern. In effect, the trial court awarded custody to Mr. Stern, the natural father, based on the same kind of evidence and analysis as might be expected had no surrogacy contract existed. Its rationalization, however, was that while the surrogacy contract was valid, specific performance would not be granted unless that remedy was in the best interests of the child. The factual issues confronted and decided by the trial court were the same as if Mr. Stern and Mrs. Whitehead had had the child out of wedlock, intended or unintended, and then disagreed about custody. The trial court's awareness of the irrelevance of the contract in the court's determination of custody is suggested by its remark that beyond the question of the child's best interests, "[a]ll other concerns raised by counsel constitute commentary." 217 N.J. Super. at 323.

On the question of best interests — and we agree, but for different reasons, that custody was the critical issue — the court's analysis of the testimony was perceptive, demonstrating both its understanding of the case and its considerable experience in these matters. We agree substantially with both its analysis and conclusions on the matter of custody.

The court's review and analysis of the surrogacy contract, however, is not at all in accord with ours. The trial court concluded that the various statutes governing this matter, including those concerning adoption, termination of parental rights, and payment of money in connection with adoptions, do not apply to surrogacy contracts. Id. at 372-73. It reasoned that because the Legislature did not have surrogacy contracts in mind when it passed those laws, those laws were therefore irrelevant. Ibid. Thus, assuming it was writing on a clean slate, the trial court analyzed the interests involved and the power of the court to accommodate them. It then held that surrogacy contracts are valid and should be enforced, id. at 388, and furthermore that Mr. Stern's rights under the surrogacy contract were constitutionally protected. Id. at 385-88.

Mrs. Whitehead appealed. This Court granted direct certification. 107 N.J. 140 (1987). The briefs of the parties on appeal were joined by numerous briefs filed by amici expressing various interests and views on surrogacy and on this case. We have found many of them helpful in resolving the issues before us.

Mrs. Whitehead contends that the surrogacy contract, for a variety of reasons, is invalid. She contends that it conflicts with public policy since it guarantees that the child will not have the nurturing of both natural parents — presumably New Jersey's goal for families. She further argues that it deprives the mother of her constitutional right to the companionship of her child, and that it conflicts with statutes concerning termination of parental rights and adoption. With the contract thus void, Mrs. Whitehead claims primary custody (with visitation rights in Mr. Stern) both on a best interests basis (stressing the "tender years" doctrine) as well as on the policy basis of discouraging surrogacy contracts. She maintains that even if custody would ordinarily go to Mr. Stern, here it should be awarded to Mrs. Whitehead to deter future surrogacy arrangements.

In a brief filed after oral argument, counsel for Mrs. Whitehead suggests that the standard for determining best interests where the infant resulted from a surrogacy contract is that the child should be placed with the mother absent a showing of unfitness. All parties agree that no expert testified that Mary Beth Whitehead was unfit as a mother; the trial court expressly found that she was not "unfit," that, on the contrary, "she is a good mother for and to her older children," 217 N.J. Super. at 397; and no one now claims anything to the contrary.

One of the repeated themes put forth by Mrs. Whitehead is that the court's initial ex parte order granting custody to the Sterns during the trial was a substantial factor in the ultimate "best interests" determination. That initial order, claimed to be erroneous by Mrs. Whitehead, not only established Melissa as part of the Stern family, but brought enormous pressure on Mrs. Whitehead. The order brought the weight of the state behind the Sterns' attempt, ultimately successful, to gain possession of the child. The resulting pressure, Mrs. Whitehead contends, caused her to act in ways that were atypical of her ordinary behavior when not under stress, and to act in ways that were thought to be inimical to the child's best interests in that they demonstrated a failure of character, maturity, and consistency. She claims that any mother who truly loved her child might so respond and that it is doubly unfair to judge her on the basis of her reaction to an extreme situation rarely faced by any mother, where that situation was itself caused by an erroneous order of the court. Therefore, according to Mrs. Whitehead, the erroneous ex parte order precipitated a series of events that proved instrumental in the final result.^[3]

The Sterns claim that the surrogacy contract is valid and should be enforced, largely for the reasons given by the trial court. They claim a constitutional right of privacy, which includes the right of procreation, and the right of consenting adults to deal with matters of reproduction as they see fit. As for the child's best interests, their position is factual: given all of the circumstances, the child is better off in their custody with no residual parental rights reserved for Mrs. Whitehead.

Of considerable interest in this clash of views is the position of the child's guardian ad litem, wisely appointed by the court at the outset of the litigation. As the child's representative, her role in the litigation, as she viewed it, was solely to protect the child's best interests. She therefore took no position on the validity of the surrogacy contract, and instead devoted her energies to obtaining expert testimony uninfluenced by any interest other than the child's. We agree with the guardian's perception of her role in this litigation. She appropriately refrained from taking any position that might have appeared to compromise her role as the child's advocate. She first took the position, based on her experts' testimony, that the Sterns should have primary custody, and that while Mrs. Whitehead's parental rights should not be terminated, no visitation should be allowed for five years. As a result of subsequent developments, mentioned infra, her view has changed. She now recommends that no visitation be allowed at least until Baby M reaches maturity.

Although some of the experts' opinions touched on visitation, the major issue they addressed was whether custody should be reposed in the Sterns or in the Whiteheads. The trial court, consistent in this respect with its view that the surrogacy contract was valid, did not deal at all with the question of visitation. Having concluded that the best interests of the child called for custody in the Sterns, the trial court enforced the operative provisions of the surrogacy contract, terminated Mrs. Whitehead's parental rights, and granted an adoption to Mrs. Stern. Explicit in the ruling was the conclusion that the best interests determination removed whatever impediment might have existed in enforcing the surrogacy contract. This Court, therefore, is without guidance from the trial court on the visitation issue, an issue of considerable importance in any event, and especially important in view of our determination that the surrogacy contract is invalid.

II.

INVALIDITY AND UNENFORCEABILITY OF SURROGACY CONTRACT

We have concluded that this surrogacy contract is invalid. Our conclusion has two bases: direct conflict with existing statutes and conflict with the public policies of this State, as expressed in its statutory and decisional law.

One of the surrogacy contract's basic purposes, to achieve the adoption of a child through private placement, though permitted in New Jersey "is very much disfavored." Sees v. Baber, 74 N.J. 201, 217 (1977). Its use of money for this purpose — and we have no doubt whatsoever that the money is being paid to obtain an adoption and not, as the Sterns argue, for the personal services of Mary Beth Whitehead — is illegal and perhaps criminal. N.J.S.A. 9:3-54. In addition to the inducement of money, there is the coercion of contract: the natural mother's irrevocable agreement, prior to birth, even prior to conception, to surrender the child to the adoptive couple. Such an agreement is totally unenforceable in private placement adoption. Sees, 74 N.J. at 212-14. Even where the adoption is through an approved agency, the formal agreement to surrender occurs only after birth (as we read N.J.S.A. 9:2-16 and -17, and similar statutes), and then, by regulation, only after the birth mother has been offered counseling. N.J.A.C. 10:121A-5.4(c). Integral to these invalid provisions of the surrogacy contract is the related agreement, equally invalid, on the part of the natural mother to cooperate with, and not to contest, proceedings to terminate her parental rights, as well as her contractual concession, in aid of the adoption, that the child's best interests would be served by awarding custody to the natural father and his wife — all of this before she has even conceived, and, in some cases, before she has the slightest idea of what the natural father and adoptive mother are like.

The foregoing provisions not only directly conflict with New Jersey statutes, but also offend long-established State policies. These critical terms, which are at the heart of the contract, are invalid and unenforceable; the conclusion therefore follows, without more, that the entire contract is unenforceable.

A. Conflict with Statutory Provisions

The surrogacy contract conflicts with: (1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions.

(1) Our law prohibits paying or accepting money in connection with any placement of a child for adoption. N.J.S.A. 9:3-54a. Violation is a high misdemeanor. N.J.S.A. 9:3-54c. Excepted are fees of an approved agency (which must be a non-profit entity, N.J.S.A. 9:3-38a) and certain expenses in connection with childbirth. N.J.S.A. 9:3-54b.^[4]

Considerable care was taken in this case to structure the surrogacy arrangement so as not to violate this prohibition. The arrangement was structured as follows: the adopting parent, Mrs. Stern, was not a party to the surrogacy contract; the money paid to Mrs. Whitehead was stated to be for her services — not for the adoption; the sole purpose of the contract was stated as being that "of giving a child to William Stern, its natural and biological father"; the money was purported to be [424] "compensation for services and expenses and in no way ... a fee for termination of parental rights or a payment in exchange for consent to surrender a child for adoption"; the fee to the Infertility Center ($7,500) was stated to be for legal representation, advice, administrative work, and other "services." Nevertheless, it seems clear that the money was paid and accepted in connection with an adoption.

The Infertility Center's major role was first as a "finder" of the surrogate mother whose child was to be adopted, and second as the arranger of all proceedings that led to the adoption. Its role as adoption finder is demonstrated by the provision requiring Mr. Stern to pay another $7,500 if he uses Mary Beth Whitehead again as a surrogate, and by ICNY's agreement to "coordinate arrangements for the adoption of the child by the wife." The surrogacy agreement requires Mrs. Whitehead to surrender Baby M for the purposes of adoption. The agreement notes that Mr. and Mrs. Stern wanted to have a child, and provides that the child be "placed" with Mrs. Stern in the event Mr. Stern dies before the child is born. The payment of the $10,000 occurs only on surrender of custody of the child and "completion of the duties and obligations" of Mrs. Whitehead, including termination of her parental rights to facilitate adoption by Mrs. Stern. As for the contention that the Sterns are paying only for services and not for an adoption, we need note only that they would pay nothing in the event the child died before the fourth month of pregnancy, and only $1,000 if the child were stillborn, even though the "services" had been fully rendered. Additionally, one of Mrs. Whitehead's estimated costs, to be assumed by Mr. Stern, was an "Adoption Fee," presumably for Mrs. Whitehead's incidental costs in connection with the adoption.

Mr. Stern knew he was paying for the adoption of a child; Mrs. Whitehead knew she was accepting money so that a child might be adopted; the Infertility Center knew that it was being paid for assisting in the adoption of a child. The actions of all three worked to frustrate the goals of the statute. It strains credulity to claim that these arrangements, touted by those in the surrogacy business as an attractive alternative to the usual route leading to an adoption, really amount to something other than a private placement adoption for money.

The prohibition of our statute is strong. Violation constitutes a high misdemeanor, N.J.S.A. 9:3-54c, a third-degree crime, N.J.S.A. 2C:43-1b, carrying a penalty of three to five years imprisonment. N.J.S.A. 2C:43-6a(3). The evils inherent in baby-bartering are loathsome for a myriad of reasons. The child is sold without regard for whether the purchasers will be suitable parents. N. Baker, Baby Selling: The Scandal of Black Market Adoption 7 (1978). The natural mother does not receive the benefit of counseling and guidance to assist her in making a decision that may affect her for a lifetime. In fact, the monetary incentive to sell her child may, depending on her financial circumstances, make her decision less voluntary. Id. at 44. Furthermore, the adoptive parents^[5] may not be fully informed of the natural parents' medical history.

Baby-selling potentially results in the exploitation of all parties involved. Ibid. Conversely, adoption statutes seek to further humanitarian goals, foremost among them the best interests of the child. H. Witmer, E. Herzog, E. Weinstein, & M. Sullivan, Independent Adoptions: A Follow-Up Study 32 (1967). The negative consequences of baby-buying are potentially present in the surrogacy context, especially the potential for placing and adopting a child without regard to the interest of the child or the natural mother.

(2) The termination of Mrs. Whitehead's parental rights, called for by the surrogacy contract and actually ordered by the court, 217 N.J. Super. at 399-400, fails to comply with the stringent requirements of New Jersey law. Our law, recognizing the finality of any termination of parental rights, provides for such termination only where there has been a voluntary surrender of a child to an approved agency or to the Division of Youth and Family Services ("DYFS"), accompanied by a formal document acknowledging termination of parental rights, N.J.S.A. 9:2-16, -17; N.J.S.A. 9:3-41; N.J.S.A. 30:4C-23, or where there has been a showing of parental abandonment or unfitness. A termination may ordinarily take one of three forms: an action by an approved agency, an action by DYFS, or an action in connection with a private placement adoption. The three are governed by separate statutes, but the standards for termination are substantially the same, except that whereas a written surrender is effective when made to an approved agency or to DYFS, there is no provision for it in the private placement context. See N.J.S.A. 9:2-14; N.J.S.A. 30:4C-23.

N.J.S.A. 9:2-18 to -20 governs an action by an approved agency to terminate parental rights. Such an action, whether or not in conjunction with a pending adoption, may proceed on proof of written surrender, N.J.S.A. 9:2-16, -17, "forsaken parental obligation," or other specific grounds such as death or insanity, N.J.S.A. 9:2-19. Where the parent has not executed a formal consent, termination requires a showing of "forsaken parental obligation," i.e., "willful and continuous neglect or failure to perform the natural and regular obligations of care and support of a child." N.J.S.A. 9:2-13(d). See also N.J.S.A. 9:3-46a, -47c.

Where DYFS is the agency seeking termination, the requirements are similarly stringent, although at first glance they do not appear to be so. DYFS can, as can any approved agency, accept a formal voluntary surrender or writing having the effect of termination and giving DYFS the right to place the child for adoption. N.J.S.A. 30:4C-23. Absent such formal written surrender and consent, similar to that given to approved agencies, DYFS can terminate parental rights in an action for guardianship by proving that "the best interests of such child require that he be placed under proper guardianship." N.J.S.A. 30:4C-20. Despite this "best interests" language, however, this Court has recently held in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), that in order for DYFS to terminate parental rights it must prove, by clear and convincing evidence, that "[t]he child's health and development have been or will be seriously impaired by the parental relationship," id. at 604, that "[t]he parents are unable or unwilling to eliminate the harm and delaying permanent placement will add to the harm," id. at 605, that "[t]he court has considered alternatives to termination," id. at 608, and that "[t]he termination of parental rights will not do more harm than good," id. at 610. This interpretation of the statutory language requires a most substantial showing of harm to the child if the parental relationship were to continue, far exceeding anything that a "best interests" test connotes.

In order to terminate parental rights under the private placement adoption statute, there must be a finding of "intentional abandonment or a very substantial neglect of parental duties without a reasonable expectation of a reversal of that conduct in the future." N.J.S.A. 9:3-48c(1). This requirement is similar to that of the prior law (i.e., "forsaken parental obligations," L. 1953, c. 264, § 2(d) (codified at N.J.S.A. 9:3-18(d) (repealed))), and to that of the law providing for termination through actions by approved agencies, N.J.S.A. 9:2-13(d). See also In re Adoption by J.J.P., 175 N.J. Super. 420, 427 (App. Div. 1980) (noting that the language of the termination provision in the present statute, N.J.S.A. 9:3-48c(1), derives from this Court's construction of the prior statute in In re Adoption of Children by D., 61 N.J. 89, 94-95 (1972)).

In Sees v. Baber, 74 N.J. 201 (1977) we distinguished the requirements for terminating parental rights in a private placement adoption from those required in an approved agency adoption. We stated that in an unregulated private placement, "neither consent nor voluntary surrender is singled out as a statutory factor in terminating parental rights." Id. at 213. Sees established that without proof that parental obligations had been forsaken, there would be no termination in a private placement setting.

As the trial court recognized, without a valid termination there can be no adoption. In re Adoption of Children by D., supra, 61 N.J. at 95. This requirement applies to all adoptions, whether they be private placements, ibid., or agency adoptions, N.J.S.A. 9:3-46a, -47c.

Our statutes, and the cases interpreting them, leave no doubt that where there has been no written surrender to an approved agency or to DYFS, termination of parental rights will not be granted in this state absent a very strong showing of abandonment or neglect. See, e.g., Sorentino v. Family & Children's Soc'y of Elizabeth, 74 N.J. 313 (1977) (Sorentino II); Sees v. Baber, 74 N.J. 201 (1977); Sorentino v. Family & Children's Soc'y of Elizabeth, 72 N.J. 127 (1976) (Sorentino I); In re Adoption of Children by D., supra, 61 N.J. 89. That showing is required in every context in which termination of parental rights is sought, be it an action by an approved agency, an action by DYFS, or a private placement adoption proceeding, even where the petitioning adoptive parent is, as here, a stepparent. While the statutes make certain procedural allowances when stepparents are involved, N.J.S.A. 9:3-48a(2), -48a(4), -48c(4), the substantive requirement for terminating the natural parents' rights is not relaxed one iota. N.J.S.A. 9:3-48c(1); In re Adoption of Children by D., supra, 61 N.J. at 94-95; In re Adoption by J.J.P., supra, 175 N.J. Super. at 426-28; In re N., 96 N.J. Super. 415, 423-27 (App.Div. 1967). It is clear that a "best interests" determination is never sufficient to terminate parental rights; the statutory criteria must be proved.^[6]

In this case a termination of parental rights was obtained not by proving the statutory prerequisites but by claiming the benefit of contractual provisions. From all that has been stated above, it is clear that a contractual agreement to abandon one's parental rights, or not to contest a termination action, will not be enforced in our courts. The Legislature would not have so carefully, so consistently, and so substantially restricted termination of parental rights if it had intended to allow termination to be achieved by one short sentence in a contract.

Since the termination was invalid,^[7] it follows, as noted above, that adoption of Melissa by Mrs. Stern could not properly be granted.

(3) The provision in the surrogacy contract stating that Mary Beth Whitehead agrees to "surrender custody ... and terminate all parental rights" contains no clause giving her a right to rescind. It is intended to be an irrevocable consent to surrender the child for adoption — in other words, an irrevocable commitment by Mrs. Whitehead to turn Baby M over to the Sterns and thereafter to allow termination of her parental rights. The trial court required a "best interests" showing as a condition to granting specific performance of the surrogacy contract. 217 N.J. Super. at 399-400. Having decided the "best interests" issue in favor of the Sterns, that court's order included, among other things, specific performance of this agreement to surrender custody and terminate all parental rights.

Mrs. Whitehead, shortly after the child's birth, had attempted to revoke her consent and surrender by refusing, after the Sterns had allowed her to have the child "just for one week," to return Baby M to them. The trial court's award of specific performance therefore reflects its view that the consent to surrender the child was irrevocable. We accept the trial court's construction of the contract; indeed it appears quite clear that this was the parties' intent. Such a provision, however, making irrevocable the natural mother's consent to surrender custody of her child in a private placement adoption, clearly conflicts with New Jersey law.

Our analysis commences with the statute providing for surrender of custody to an approved agency and termination of parental rights on the suit of that agency. The two basic provisions of the statute are N.J.S.A. 9:2-14 and 9:2-16. The former provides explicitly that

[e]xcept as otherwise provided by law or by order or judgment of a court of competent jurisdiction or by testamentary disposition, no surrender of the custody of a child shall be valid in this state unless made to an approved agency pursuant to the provisions of this act....

There is no exception "provided by law," and it is not clear that there could be any "order or judgment of a court of competent jurisdiction" validating a surrender of custody as a basis for adoption when that surrender was not in conformance with the statute. Requirements for a voluntary surrender to an approved agency are set forth in N.J.S.A. 9:2-16. This section allows an approved agency to take a voluntary surrender of custody from the parent of a child but provides stringent requirements as a condition to its validity. The surrender must be in writing, must be in such form as is required for the recording of a deed, and, pursuant to N.J.S.A. 9:2-17, must be such as to declare that the person executing the same desires to relinquish the custody of the child, acknowledge the termination of parental rights as to such custody in favor of the approved agency, and acknowledge full understanding of the effect of such surrender as provided by this act.

If the foregoing requirements are met, the consent, the voluntary surrender of custody

shall be valid whether or not the person giving same is a minor and shall be irrevocable except at the discretion of the approved agency taking such surrender or upon order or judgment of a court of competent jurisdiction, setting aside such surrender upon proof of fraud, duress, or misrepresentation. [N.J.S.A. 9:2-16.]

The importance of that irrevocability is that the surrender itself gives the agency the power to obtain termination of parental rights — in other words, permanent separation of the parent from the child, leading in the ordinary case to an adoption. N.J.S.A. 9:2-18 to -20.

This statutory pattern, providing for a surrender in writing and for termination of parental rights by an approved agency, is generally followed in connection with adoption proceedings and proceedings by DYFS to obtain permanent custody of a child. Our adoption statute repeats the requirements necessary to accomplish an irrevocable surrender to an approved agency in both form and substance. N.J.S.A. 9:3-41a. It provides that the surrender "shall be valid and binding without regard to the age of the person executing the surrender," ibid.; and although the word "irrevocable" is not used, that seems clearly to be the intent of the provision. The statute speaks of such surrender as constituting "relinquishment of such person's parental rights in or guardianship or custody of the child named therein and consent by such person to adoption of the child." Ibid. (emphasis supplied). We emphasize "named therein," for we construe the statute to allow a surrender only after the birth of the child. The formal consent to surrender enables the approved agency to terminate parental rights.

Similarly, DYFS is empowered to "take voluntary surrenders and releases of custody and consents to adoption[s]" from parents, which surrenders, releases, or consents "when properly acknowledged ... shall be valid and binding irrespective of the age of the person giving the same, and shall be irrevocable except at the discretion of the Bureau of Childrens Services [currently DYFS] or upon order of a court of competent jurisdiction." N.J.S.A. 30:4C-23. Such consent to surrender of the custody of the child would presumably lead to an adoption placement by DYFS. See N.J.S.A. 30:4C-20.

It is clear that the Legislature so carefully circumscribed all aspects of a consent to surrender custody — its form and substance, its manner of execution, and the agency or agencies to which it may be made — in order to provide the basis for irrevocability. It seems most unlikely that the Legislature intended that a consent not complying with these requirements would also be irrevocable, especially where, as here, that consent falls radically short of compliance. Not only do the form and substance of the consent in the surrogacy contract fail to meet statutory requirements, but the surrender of custody is made to a private party. It is not made, as the statute requires, either to an approved agency or to DYFS.

These strict prerequisites to irrevocability constitute a recognition of the most serious consequences that flow from such consents: termination of parental rights, the permanent separation of parent from child, and the ultimate adoption of the child. See Sees v. Baber, supra, 74 N.J. at 217. Because of those consequences, the Legislature severely limited the circumstances under which such consent would be irrevocable. The legislative goal is furthered by regulations requiring approved agencies, prior to accepting irrevocable consents, to provide advice and counseling to women, making it more likely that they fully understand and appreciate the consequences of their acts. N.J.A.C. 10:121A-5.4(c).

Contractual surrender of parental rights is not provided for in our statutes as now written. Indeed, in the Parentage Act, N.J.S.A. 9:17-38 to -59, there is a specific provision invalidating any agreement "between an alleged or presumed father and the mother of the child" to bar an action brought for the purpose of determining paternity "[r]egardless of [the contract's] terms." N.J.S.A. 9:17-45. Even a settlement agreement concerning parentage reached in a judicially-mandated consent conference is not valid unless the proposed settlement is approved beforehand by the court. N.J.S.A. 9:17-48c and d. There is no doubt that a contractual provision purporting to constitute an irrevocable agreement to surrender custody of a child for adoption is invalid.

In Sees v. Baber, supra, 74 N.J. 201, we noted that a natural mother's consent to surrender her child and to its subsequent adoption was no longer required by the statute in private placement adoptions. After tracing the statutory history from the time when such a consent had been an essential prerequisite to adoption, we concluded that such a consent was now neither necessary nor sufficient for the purpose of terminating parental rights. Id. at 213. The consent to surrender custody in that case was in writing, had been executed prior to physical surrender of the infant, and had been explained to the mother by an attorney. The trial court found that the consent to surrender of custody in that private placement adoption was knowing, voluntary, and deliberate. Id. at 216. The physical surrender of the child took place four days after its birth. Two days thereafter the natural mother changed her mind, and asked that the adoptive couple give her baby back to her. We held that she was entitled to the baby's return. The effect of our holding in that case necessarily encompassed our conclusion that "in an unsupervised private placement, since there is no statutory obligation to consent, there can be no legal barrier to its retraction." Id. at 215. The only possible relevance of consent in these matters, we noted, was that it might bear on whether there had been an abandonment of the child, or a forsaking of parental obligations. Id. at 216. Otherwise, consent in a private placement adoption is not only revocable but, when revoked early enough, irrelevant. Id. at 213-15.

The provision in the surrogacy contract whereby the mother irrevocably agrees to surrender custody of her child and to terminate her parental rights conflicts with the settled interpretation of New Jersey statutory law.^[8] There is only one irrevocable consent, and that is the one explicitly provided for by statute: a consent to surrender of custody and a placement with an approved agency or with DYFS. The provision in the surrogacy contract, agreed to before conception, requiring the natural mother to surrender custody of the child without any right of revocation is one more indication of the essential nature of this transaction: the creation of a contractual system of termination and adoption designed to circumvent our statutes.

B. Public Policy Considerations

The surrogacy contract's invalidity, resulting from its direct conflict with the above statutory provisions, is further underlined when its goals and means are measured against New Jersey's public policy. The contract's basic premise, that the natural parents can decide in advance of birth which one is to have custody of the child, bears no relationship to the settled law that the child's best interests shall determine custody. See Fantony v. Fantony, 21 N.J. 525, 536-37 (1956); see also Sheehan v. Sheehan, 38 N.J. Super. 120, 125 (App.Div. 1955) [435] ("Whatever the agreement of the parents, the ultimate determination of custody lies with the court in the exercise of its supervisory jurisdiction as parens patriae."). The fact that the trial court remedied that aspect of the contract through the "best interests" phase does not make the contractual provision any less offensive to the public policy of this State.

The surrogacy contract guarantees permanent separation of the child from one of its natural parents. Our policy, however, has long been that to the extent possible, children should remain with and be brought up by both of their natural parents. That was the first stated purpose of the previous adoption act, L. 1953, c. 264, § 1, codified at N.J.S.A. 9:3-17 (repealed): "it is necessary and desirable (a) to protect the child from unnecessary separation from his natural parents...." While not so stated in the present adoption law, this purpose remains part of the public policy of this State. See, e.g., Wilke v. Culp, 196 N.J. Super. 487, 496 (App.Div. 1984), certif. den., 99 N.J. 243 (1985); In re Adoption by J.J.P., supra, 175 N.J. Super. at 426. This is not simply some theoretical ideal that in practice has no meaning. The impact of failure to follow that policy is nowhere better shown than in the results of this surrogacy contract. A child, instead of starting off its life with as much peace and security as possible, finds itself immediately in a tug-of-war between contending mother and father.^[9]

The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father's right no greater than the mother's. "The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents." N.J.S.A. 9:17-40. As the Assembly Judiciary Committee noted in its statement to the bill, this section establishes "the principle that regardless of the marital status of the parents, all children and all parents have equal rights with respect to each other." Statement to Senate No. 888, Assembly Judiciary, Law, Public Safety and Defense Committee (1983) (emphasis supplied). The whole purpose and effect of the surrogacy contract was to give the father the exclusive right to the child by destroying the rights of the mother.

The policies expressed in our comprehensive laws governing consent to the surrender of a child, discussed supra at 429-434, stand in stark contrast to the surrogacy contract and what it implies. Here there is no counseling, independent or otherwise, of the natural mother, no evaluation, no warning.

The only legal advice Mary Beth Whitehead received regarding the surrogacy contract was provided in connection with the contract that she previously entered into with another couple. Mrs. Whitehead's lawyer was referred to her by the Infertility Center, with which he had an agreement to act as counsel for surrogate candidates. His services consisted of spending one hour going through the contract with the Whiteheads, section by section, and answering their questions. Mrs. Whitehead received no further legal advice prior to signing the contract with the Sterns.

Mrs. Whitehead was examined and psychologically evaluated, but if it was for her benefit, the record does not disclose that fact. The Sterns regarded the evaluation as important, particularly in connection with the question of whether she would change her mind. Yet they never asked to see it, and were content with the assumption that the Infertility Center had made an evaluation and had concluded that there was no danger that the surrogate mother would change her mind. From Mrs. Whitehead's point of view, all that she learned from the evaluation was that "she had passed." It is apparent that the profit motive got the better of the Infertility Center. Although the evaluation was made, it was not put to any use, and understandably so, for the psychologist warned that Mrs. Whitehead demonstrated certain traits that might make surrender of the child difficult and that there should be further inquiry into this issue in connection with her surrogacy. To inquire further, however, might have jeopardized the Infertility Center's fee. The record indicates that neither Mrs. Whitehead nor the Sterns were ever told of this fact, a fact that might have ended their surrogacy arrangement.

Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction.

Although the interest of the natural father and adoptive mother is certainly the predominant interest, realistically the only interest served, even they are left with less than what public policy requires. They know little about the natural mother, her genetic makeup, and her psychological and medical history. Moreover, not even a superficial attempt is made to determine their awareness of their responsibilities as parents.

Worst of all, however, is the contract's total disregard of the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother.

This is the sale of a child, or, at the very least, the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father. Almost every evil that prompted the prohibition on the payment of money in connection with adoptions exists here.

The differences between an adoption and a surrogacy contract should be noted, since it is asserted that the use of money in connection with surrogacy does not pose the risks found where money buys an adoption. Katz, "Surrogate Motherhood and the Baby-Selling Laws," 20 Colum.J.L. & Soc.Probs. 1 (1986).

First, and perhaps most important, all parties concede that it is unlikely that surrogacy will survive without money. Despite the alleged selfless motivation of surrogate mothers, if there is no payment, there will be no surrogates, or very few. That conclusion contrasts with adoption; for obvious reasons, there remains a steady supply, albeit insufficient, despite the prohibitions against payment. The adoption itself, relieving the natural mother of the financial burden of supporting an infant, is in some sense the equivalent of payment.

Second, the use of money in adoptions does not produce the problem — conception occurs, and usually the birth itself, before illicit funds are offered. With surrogacy, the "problem," if one views it as such, consisting of the purchase of a woman's procreative capacity, at the risk of her life, is caused by and originates with the offer of money.

Third, with the law prohibiting the use of money in connection with adoptions, the built-in financial pressure of the unwanted pregnancy and the consequent support obligation do not lead the mother to the highest paying, ill-suited, adoptive parents. She is just as well-off surrendering the child to an approved agency. In surrogacy, the highest bidders will presumably become the adoptive parents regardless of suitability, so long as payment of money is permitted.

Fourth, the mother's consent to surrender her child in adoptions is revocable, even after surrender of the child, unless it be to an approved agency, where by regulation there are protections against an ill-advised surrender. In surrogacy, consent occurs so early that no amount of advice would satisfy the potential mother's need, yet the consent is irrevocable.

The main difference, that the unwanted pregnancy is unintended while the situation of the surrogate mother is voluntary and intended, is really not significant. Initially, it produces stronger reactions of sympathy for the mother whose pregnancy was unwanted than for the surrogate mother, who "went into this with her eyes wide open." On reflection, however, it appears that the essential evil is the same, taking advantage of a woman's circumstances (the unwanted pregnancy or the need for money) in order to take away her child, the difference being one of degree.

In the scheme contemplated by the surrogacy contract in this case, a middle man, propelled by profit, promotes the sale. Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction. The demand for children is great and the supply small. The availability of contraception, abortion, and the greater willingness of single mothers to bring up their children has led to a shortage of babies offered for adoption. See N. Baker, Baby Selling: The Scandal of Black Market Adoption, supra; Adoption and Foster Care, 1975: Hearings on Baby Selling Before the Subcomm. On Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong.1st Sess. 6 (1975) (Statement of Joseph H. Reid, Executive Director, Child Welfare League of America, Inc.). The situation is ripe for the entry of the middleman who will bring some equilibrium into the market by increasing the supply through the use of money.

Intimated, but disputed, is the assertion that surrogacy will be used for the benefit of the rich at the expense of the poor. See, e.g., Radin, "Market Inalienability," 100 Harv.L.Rev. 1849, 1930 (1987). In response it is noted that the Sterns are not rich and the Whiteheads not poor. Nevertheless, it is clear to us that it is unlikely that surrogate mothers will be as proportionately numerous among those women in the top twenty percent income bracket as among those in the bottom twenty percent. Ibid. Put differently, we doubt that infertile couples in the low-income bracket will find upper income surrogates.

In any event, even in this case one should not pretend that disparate wealth does not play a part simply because the contrast is not the dramatic "rich versus poor." At the time of trial, the Whiteheads' net assets were probably negative — Mrs. Whitehead's own sister was foreclosing on a second mortgage. Their income derived from Mr. Whitehead's labors. Mrs. Whitehead is a homemaker, having previously held part-time jobs. The Sterns are both professionals, she a medical doctor, he a biochemist. Their combined income when both were working was about $89,500 a year and their assets sufficient to pay for the surrogacy contract arrangements.

The point is made that Mrs. Whitehead agreed to the surrogacy arrangement, supposedly fully understanding the consequences. Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money cannot buy. In America, we decided long ago that merely because conduct purchased by money was "voluntary" did not mean that it was good or beyond regulation and prohibition. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Employers can no longer buy labor at the lowest price they can bargain for, even though that labor is "voluntary," 29 U.S.C. § 206 (1982), or buy women's labor for less money than paid to men for the same job, 29 U.S.C. § 206(d), or purchase the agreement of children to perform oppressive labor, 29 U.S.C. § 212, or purchase the agreement of workers to subject themselves to unsafe or unhealthful working conditions, 29 U.S.C. §§ 651 to 678. (Occupational Safety and Health Act of 1970). There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life. Whether this principle recommends prohibition of surrogacy, which presumably sometimes results in great satisfaction to all of the parties, is not for us to say. We note here only that, under existing law, the fact that Mrs. Whitehead "agreed" to the arrangement is not dispositive.

The long-term effects of surrogacy contracts are not known, but feared — the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct. Literature in related areas suggests these are substantial considerations, although, given the newness of surrogacy, there is little information. See N. Baker, Baby Selling: The Scandal of Black Market Adoption, supra; Adoption and Foster Care, 1975: Hearings on Baby Selling Before the Subcomm. on Children and Youth of the Senate Comm. on Labor and Public Welfare, 94th Cong. 1st Sess. (1975).

The surrogacy contract is based on, principles that are directly contrary to the objectives of our laws.^[10] It guarantees the separation of a child from its mother; it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness; and it does all of this, it accomplishes all of its goals, through the use of money.

Beyond that is the potential degradation of some women that may result from this arrangement. In many cases, of course, surrogacy may bring satisfaction, not only to the infertile couple, but to the surrogate mother herself. The fact, however, that many women may not perceive surrogacy negatively but rather see it as an opportunity does not diminish its potential for devastation to other women.

In sum, the harmful consequences of this surrogacy arrangement appear to us all too palpable. In New Jersey the surrogate mother's agreement to sell her child is void.^[11] Its irrevocability infects the entire contract, as does the money that purports to buy it.

III.

TERMINATION

We have already noted that under our laws termination of parental rights cannot be based on contract, but may be granted only on proof of the statutory requirements. That conclusion was one of the bases for invalidating the surrogacy contract. Although excluding the contract as a basis for parental termination, we did not explicitly deal with the question of whether the statutory bases for termination existed. We do so here.

As noted before, if termination of Mrs. Whitehead's parental rights is justified, Mrs. Whitehead will have no further claim either to custody or to visitation, and adoption by Mrs. Stern may proceed pursuant to the private placement adoption statute, N.J.S.A. 9:3-48. If termination is not justified, Mrs. Whitehead remains the legal mother, and even if not entitled to custody, she would ordinarily be expected to have some rights of visitation. Wilke v. Culp, supra, 196 N.J. Super. at 496.

As was discussed, supra at 425-429, the proper bases for termination are found in the statute relating to proceedings by approved agencies for a termination of parental rights, N.J.S.A. 9:2-18, the statute allowing for termination leading to a private placement adoption, N.J.S.A. 9:3-48c(1), and the statute authorizing a termination pursuant to an action by DYFS, N.J.S.A. 30:4C-20. The statutory descriptions of the conditions required to terminate parental rights differ; their interpretation in case law, however, tends to equate them. Compare New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 601-11 (attempted termination by DYFS) with In re Adoption by J.J.P., supra, 175 N.J. Super. at 426-28 (attempted termination in connection with private placement adoption).

Nothing in this record justifies a finding that would allow a court to terminate Mary Beth Whitehead's parental rights under the statutory standard. It is not simply that obviously there was no "intentional abandonment or very substantial neglect of parental duties without a reasonable expectation of reversal of that conduct in the future," N.J.S.A. 9:3-48c(1), quite the contrary, but furthermore that the trial court never found Mrs. Whitehead an unfit mother and indeed affirmatively stated that Mary Beth Whitehead had been a good mother to her other children. 217 N.J. Super. at 397.

Although the question of best interests of the child is dispositive of the custody issue in a dispute between natural parents, it does not govern the question of termination. It has long been decided that the mere fact that a child would be better off with one set of parents than with another is an insufficient basis for terminating the natural parent's rights. See New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 603; In re Adoption of Children by D., supra, 61 N.J. at 97-98; In re Adoption by J.J.P., supra, 175 N.J. Super. at 428. Furthermore, it is equally well settled that surrender of a child and a consent to adoption through private placement do not alone warrant termination. See Sees v. Baber, supra, 74 N.J. 201. It must be noted, despite some language to the contrary, that the interests of the child are not the only interests involved when termination issues are raised. The parent's rights, both constitutional and statutory, have their own independent vitality. See New Jersey Div. of Youth and Family Servs. v. A.W., supra, 103 N.J. at 601.

Although the statutes are clear, they are not applied rigidly on all occasions. The statutory standard, strictly construed, appears harsh where the natural parents, having surrendered [446] their child for adoption through private placement, change their minds and seek the return of their child and where the issue comes before the court with the adoptive parents having had custody for years, and having assumed it quite innocently.

These added dimensions in Sees v. Baber, supra, 74 N.J. 201, failed to persuade this Court to vary the termination requirements. The natural parent in that case changed her mind two days after surrendering the child, sought his return unequivocally, and so advised the adoptive parents. Since she was clearly fit, and clearly had not abandoned the child in the statutory sense, termination was denied, despite the fact that the adoptive parents had had custody of the child for about a year, and the mother had never had custody at all.

A significant variation on these facts, however, occurred in Sorentino II, supra, 74 N.J. 313. The surrender there was not through private placement but through an approved agency. Although the consent to surrender was held invalid due to coercion by the agency, the natural parents failed to initiate the lawsuit to reclaim the child for over a year after relinquishment. By the time this Court reached the issue of whether the natural parents' rights could be terminated, the adoptive parents had had custody for three years. These circumstances ultimately persuaded this Court to permit termination of the natural parents' rights and to allow a subsequent adoption. The unique facts of Sorentino II were found to amount to a forsaking of parental obligations. Id. at 322.

The present case is distinguishable from Sorentino II. Mary Beth Whitehead had custody of Baby M for four months before the child was taken away. Her initial surrender of Baby M was pursuant to a contract that we have declared illegal and unenforceable. The Sterns knew almost from the very day that they took Baby M that their rights were being challenged by the natural mother. In short, the factors that persuaded this Court to terminate the parental rights in Sorentino II are not found here.

There is simply no basis, either in the statute or in the peculiar facts of that limited class of case typified by Sorentino II, to warrant termination of Mrs. Whitehead's parental rights. We therefore conclude that the natural mother is entitled to retain her rights as a mother.

IV.

CONSTITUTIONAL ISSUES

Both parties argue that the Constitutions — state and federal — mandate approval of their basic claims. The source of their constitutional arguments is essentially the same: the right of privacy, the right to procreate, the right to the companionship of one's child, those rights flowing either directly from the fourteenth amendment or by its incorporation of the Bill of Rights, or from the ninth amendment, or through the penumbra surrounding all of the Bill of Rights. They are the rights of personal intimacy, of marriage, of sex, of family, of procreation. Whatever their source, it is clear that they are fundamental rights protected by both the federal and state Constitutions. Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Carey v. Population Servs. Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The right asserted by the Sterns is the right of procreation; that asserted by Mary Beth Whitehead is the right to the companionship of her child. We find that the right of procreation does not extend as far as claimed by the Sterns. As for the right asserted by Mrs. Whitehead,^[12] since we uphold it on other grounds (i.e., we have restored her as mother and recognized her right, limited by the child's best interests, to her companionship), we need not decide that constitutional issue, and for reasons set forth below, we should not.

The right to procreate, as protected by the Constitution, has been ruled on directly only once by the United States Supreme Court. See Skinner v. Oklahoma, supra, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (forced sterilization of habitual criminals violates equal protection clause of fourteenth amendment). Although Griswold v. Connecticut, supra, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, is obviously of a similar class, strictly speaking it involves the right not to procreate. The right to procreate very simply is the right to have natural children, whether through sexual intercourse or artificial insemination. It is no more than that. Mr. Stern has not been deprived of that right. Through artificial insemination of Mrs. Whitehead, Baby M is his child. The custody, care, companionship, and nurturing that follow birth are not parts of the right to procreation; they are rights that may also be constitutionally protected, but that involve many considerations other than the right of procreation. To assert that Mr. Stern's right of procreation gives him the right to the custody of Baby M would be to assert that Mrs. Whitehead's right of procreation does not give her the right to the custody of Baby M; it would be to assert that the constitutional right of procreation includes within it a constitutionally protected contractual right to destroy someone else's right of procreation.

We conclude that the right of procreation is best understood and protected if confined to its essentials, and that when dealing with rights concerning the resulting child, different interests come into play. There is nothing in our culture or society that even begins to suggest a fundamental right on the part of the father to the custody of the child as part of his right to procreate when opposed by the claim of the mother to the same child. We therefore disagree with the trial court: there is no constitutional basis whatsoever requiring that Mr. Stern's claim to the custody of Baby M be sustained. Our conclusion may thus be understood as illustrating that a person's rights of privacy and self-determination are qualified by the effect on innocent third persons of the exercise of those rights.^[13]

Mr. Stern also contends that he has been denied equal protection of the laws by the State's statute granting full parental rights to a husband in relation to the child produced, with his consent, by the union of his wife with a sperm donor. N.J.S.A. 9:17-44. The claim really is that of Mrs. Stern. It is that she is in precisely the same position as the husband in the statute: she is presumably infertile, as is the husband in the statute; her spouse by agreement with a third party procreates with the understanding that the child will be the couple's child. The alleged unequal protection is that the understanding is honored in the statute when the husband is the infertile party, but no similar understanding is honored when it is the wife who is infertile.

It is quite obvious that the situations are not parallel. A sperm donor simply cannot be equated with a surrogate mother. The State has more than a sufficient basis to distinguish the two situations — even if the only difference is between the time it takes to provide sperm for artificial insemination and the time invested in a nine-month pregnancy — so as to justify automatically divesting the sperm donor of his parental rights without automatically divesting a surrogate mother. Some basis for an equal protection argument might exist if Mary Beth Whitehead had contributed her egg to be implanted, fertilized or otherwise, in Mrs. Stern, resulting in the latter's pregnancy. That is not the case here, however.

Mrs. Whitehead, on the other hand, asserts a claim that falls within the scope of a recognized fundamental interest protected by the Constitution. As a mother, she claims the right to the companionship of her child. This is a fundamental interest, constitutionally protected. Furthermore, it was taken away from her by the action of the court below. Whether that action under these circumstances would constitute a constitutional deprivation, however, we need not and do not decide. By virtue of our decision Mrs. Whitehead's constitutional complaint — that her parental rights have been unconstitutionally terminated — is moot. We have decided that both the statutes and public policy of this state require that that termination be voided and that her parental rights be restored. It therefore becomes unnecessary to decide whether that same result would be required by virtue of the federal or state Constitutions. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 341, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688, 707, 710-12 (1936) (Brandeis, J., concurring). Refraining from deciding such constitutional issues avoids further complexities involving the full extent of a parent's right of companionship,^[14] or questions involving the fourteenth amendment.^[15]

Having held the contract invalid and having found no other grounds for the termination of Mrs. Whitehead's parental rights, we find that nothing remains of her constitutional claim. It seems obvious to us that since custody and visitation encompass practically all of what we call "parental rights," a total denial of both would be the equivalent of termination of parental rights. Franz v. United States, 707 F.2d 582, 602 (D.C. Cir.1983). That, however, as will be seen below, has not occurred here. We express no opinion on whether a prolonged suspension of visitation would constitute a termination of parental rights, or whether, assuming it would, a showing of unfitness would be required.^[16]

V.

CUSTODY

Having decided that the surrogacy contract is illegal and unenforceable, we now must decide the custody question without regard to the provisions of the surrogacy contract that would give Mr. Stern sole and permanent custody. (That does not mean that the existence of the contract and the circumstances under which it was entered may not be considered to the extent deemed relevant to the child's best interests.) With the surrogacy contract disposed of, the legal framework becomes a dispute between two couples over the custody of a child produced by the artificial insemination of one couple's wife by the other's husband. Under the Parentage Act the claims of the natural father and the natural mother are entitled to equal weight, i.e., one is not preferred over the other solely because he or she is the father or the mother. N.J.S.A. 9:17-40.^[17] The applicable rule given these circumstances is clear: the child's best interests determine custody.

We note again that the trial court's reasons for determining what were the child's best interests were somewhat different from ours. It concluded that the surrogacy contract was valid, but that it could not grant specific performance unless to do so was in the child's best interests. The approach was that of a Chancery judge, unwilling to give extraordinary remedies unless they well served the most important interests, in this case, the interests of the child. While substantively indistinguishable from our approach to the question of best interests, the purpose of the inquiry was not the usual purpose of determining custody, but of determining a contractual remedy.

We are not concerned at this point with the question of termination of parental rights, either those of Mrs. Whitehead or of Mr. Stern. As noted in various places in this opinion, such termination, in the absence of abandonment or a valid surrender, generally depends on a showing that the particular parent is unfit. The question of custody in this case, as in practically all cases, assumes the fitness of both parents, and no serious contention is made in this case that either is unfit. The issue here is which life would be better for Baby M, one with primary custody in the Whiteheads or one with primary custody in the Sterns.

The circumstances of this custody dispute are unusual and they have provoked some unusual contentions. The Whiteheads claim that even if the child's best interests would be served by our awarding custody to the Sterns, we should not do so, since that will encourage surrogacy contracts — contracts claimed by the Whiteheads, and we agree, to be violative of important legislatively-stated public policies. Their position is that in order that surrogacy contracts be deterred, custody should remain in the surrogate mother unless she is unfit, regardless of the best interests of the child. We disagree. Our declaration that this surrogacy contract is unenforceable and illegal is sufficient to deter similar agreements. We need not sacrifice the child's interests in order to make that point sharper. Cf. In re Adoption of Child by I.T. and K.T., 164 N.J. Super. 476, 484-86 (App.Div. 1978) (adoptive parents' participation in illegal placement does not mandate denial of adoption); In the Matter of the Adoption of Child by N.P. and F.P., 165 N.J. Super. 591 (Law Div. 1979) (use of unapproved intermediaries and the payment of money in connection with adoption is insufficient to establish that the would-be adoptive parents are unfit or that adoption would not be in child's best interests).

The Whiteheads also contend that the award of custody to the Sterns pendente lite was erroneous and that the error should not be allowed to affect the final custody decision. As noted above, at the very commencement of this action the court issued an ex parte order requiring Mrs. Whitehead to turn over the baby to the Sterns; Mrs. Whitehead did not comply but rather took the child to Florida. Thereafter, a similar order was enforced by the Florida authorities resulting in the transfer of possession of Baby M to the Sterns. The Sterns retained custody of the child throughout the litigation. The Whiteheads' point, assuming the pendente award of custody was erroneous, is that most of the factors arguing for awarding permanent custody to the Sterns resulted from that initial pendente lite order. Some of Mrs. Whitehead's alleged character failings, as testified to by experts and concurred in by the trial court, were demonstrated by her actions brought on by the custody crisis. For instance, in order to demonstrate her impulsiveness, those experts stressed the Whiteheads' flight to Florida with Baby M; to show her willingness to use her children for her own aims, they noted the telephone threats to kill Baby M and to accuse Mr. Stern of sexual abuse of her daughter; in order to show Mrs. Whitehead's manipulativeness, they pointed to her threat to kill herself; and in order to show her unsettled family life, they noted the innumerable moves from one hotel or motel to another in Florida. Furthermore, the argument continues, one of the most important factors, whether mentioned or not, in favor of custody in the Sterns is their continuing custody during the litigation, now having lasted for one-and-a-half [456] years. The Whiteheads' conclusion is that had the trial court not given initial custody to the Sterns during the litigation, Mrs. Whitehead not only would have demonstrated her perfectly acceptable personality — the general tenor of the opinion of experts was that her personality problems surfaced primarily in crises — but would also have been able to prove better her parental skills along with an even stronger bond than may now exist between her and Baby M. Had she not been limited to custody for four months, she could have proved all of these things much more persuasively through almost two years of custody.

The argument has considerable force. It is of course possible that the trial court was wrong in its initial award of custody. It is also possible that such error, if that is what it was, may have affected the outcome. We disagree with the premise, however, that in determining custody a court should decide what the child's best interests would be if some hypothetical state of facts had existed. Rather, we must look to what those best interests are, today, even if some of the facts may have resulted in part from legal error. The child's interests come first: we will not punish it for judicial errors, assuming any were made. See Wist v. Wist, 101 N.J. 509, 513-14 (1986); see also In re J.R. Guardianship, 174 N.J. Super. 211 (App.Div.), certif. den., 85 N.J. 102 (1980) (although not explicitly mentioned, natural mother's loss of parental rights based substantially on failures of DYFS to arrange visitation with her child). The custody decision must be based on all circumstances, on everything that actually has occurred, on everything that is relevant to the child's best interests. Those circumstances include the trip to Florida, the telephone calls and threats, the substantial period of successful custody with the Sterns, and all other relevant circumstances. We will discuss the question of the correctness of the trial court's initial orders below, but for purposes of determining Baby M's best interests, the correctness of those initial orders has lost relevance.

There were eleven experts who testified concerning the child's best interests, either directly or in connection with matters related to that issue. Our reading of the record persuades us that the trial court's decision awarding custody to the Sterns (technically to Mr. Stern) should be affirmed since "its findings... could reasonably have been reached on sufficient credible evidence present in the record." Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)); see Palermo v. Palermo, 164 N.J. Super. 492, 498 (App.Div. 1978) (noting that family court judge was experienced in dealing with such matters and had opportunity to observe parties and become immersed in details of case). More than that, on this record we find little room for any different conclusion. The trial court's treatment of this issue, 217 N.J. Super. at 391-400, is both comprehensive and, in most respects, perceptive. We agree substantially with its analysis with but few exceptions that, although important, do not change our ultimate views.

Our custody conclusion is based on strongly persuasive testimony contrasting both the family life of the Whiteheads and the Sterns and the personalities and characters of the individuals. The stability of the Whitehead family life was doubtful at the time of trial. Their finances were in serious trouble (foreclosure by Mrs. Whitehead's sister on a second mortgage was in process). Mr. Whitehead's employment, though relatively steady, was always at risk because of his alcoholism, a condition that he seems not to have been able to confront effectively. Mrs. Whitehead had not worked for quite some time, her last two employments having been part-time. One of the Whiteheads' positive attributes was their ability to bring up two children, and apparently well, even in so vulnerable a household. Yet substantial question was raised even about that aspect of their home life. The expert testimony contained criticism of Mrs. Whitehead's handling of her son's educational difficulties. Certain of the experts noted that Mrs. Whitehead perceived herself as omnipotent and omniscient concerning her children. She knew what they were thinking, what they wanted, and she spoke for them. As to Melissa, Mrs. Whitehead expressed the view that she alone knew what that child's cries and sounds meant. Her inconsistent stories about various things engendered grave doubts about her ability to explain honestly and sensitively to Baby M — and at the right time — the nature of her origin. Although faith in professional counseling is not a sine qua non of parenting, several experts believed that Mrs. Whitehead's contempt for professional help, especially professional psychological help, coincided with her feelings of omnipotence in a way that could be devastating to a child who most likely will need such help. In short, while love and affection there would be, Baby M's life with the Whiteheads promised to be too closely controlled by Mrs. Whitehead. The prospects for wholesome, independent psychological growth and development would be at serious risk.

The Sterns have no other children, but all indications are that their household and their personalities promise a much more likely foundation for Melissa to grow and thrive. There is a track record of sorts — during the one-and-a-half years of custody Baby M has done very well, and the relationship between both Mr. and Mrs. Stern and the baby has become very strong. The household is stable, and likely to remain so. Their finances are more than adequate, their circle of friends supportive, and their marriage happy. Most important, they are loving, giving, nurturing, and open-minded people. They have demonstrated the wish and ability to nurture and protect Melissa, yet at the same time to encourage her independence. Their lack of experience is more than made up for by a willingness to learn and to listen, a willingness that is enhanced by their professional training, especially Mrs. Stern's experience as a pediatrician. They are honest; they can recognize error, deal with it, and learn from it. They will try to determine rationally the best way to cope with problems in their relationship with Melissa. When the time comes to tell her about her origins, they will probably have found a means of doing so that accords with the best interests of Baby M. All in all, Melissa's future appears solid, happy, and promising with them.

Based on all of this we have concluded, independent of the trial court's identical conclusion, that Melissa's best interests call for custody in the Sterns. Our above-mentioned disagreements with the trial court do not, as we have noted, in any way diminish our concurrence with its conclusions. We feel, however, that those disagreements are important enough to be stated. They are disagreements about the evaluation of conduct. They also may provide some insight about the potential consequences of surrogacy.

It seems to us that given her predicament, Mrs. Whitehead was rather harshly judged — both by the trial court and by some of the experts. She was guilty of a breach of contract, and indeed, she did break a very important promise, but we think it is expecting something well beyond normal human capabilities to suggest that this mother should have parted with her newly born infant without a struggle. Other than survival, what stronger force is there? We do not know of, and cannot conceive of, any other case where a perfectly fit mother was expected to surrender her newly born infant, perhaps forever, and was then told she was a bad mother because she did not. We know of no authority suggesting that the moral quality of her act in those circumstances should be judged by referring to a contract made before she became pregnant. We do not countenance, and would never countenance, violating a court order as Mrs. Whitehead did, even a court order that is wrong; but her resistance to an order that she surrender her infant, possibly forever, merits a measure of understanding. We do not find it so clear that her efforts to keep her infant, when measured against the Sterns' efforts to take her away, make one, rather than the other, the wrongdoer. The Sterns suffered, but so did she. And if we go beyond suffering to an evaluation of the human stakes involved in the struggle, how much weight should be given to her nine months of pregnancy, the labor of childbirth, the risk to her life, compared to the payment of money, the anticipation of a child and the donation of sperm?

There has emerged a portrait of Mrs. Whitehead, exposing her children to the media, engaging in negotiations to sell a book, granting interviews that seemed helpful to her, whether hurtful to Baby M or not, that suggests a selfish, grasping woman ready to sacrifice the interests of Baby M and her other children for fame and wealth. That portrait is a half-truth, for while it may accurately reflect what ultimately occurred, its implication, that this is what Mary Beth Whitehead wanted, is totally inaccurate, at least insofar as the record before us is concerned. There is not one word in that record to support a claim that had she been allowed to continue her possession of her newly born infant, Mrs. Whitehead would have ever been heard of again; not one word in the record suggests that her change of mind and her subsequent fight for her child was motivated by anything other than love — whatever complex underlying psychological motivations may have existed.

We have a further concern regarding the trial court's emphasis on the Sterns' interest in Melissa's education as compared to the Whiteheads'. That this difference is a legitimate factor to be considered we have no doubt. But it should not be overlooked that a best-interests test is designed to create not a new member of the intelligentsia but rather a well-integrated person who might reasonably be expected to be happy with life. "Best interests" does not contain within it any idealized lifestyle; the question boils down to a judgment, consisting of many factors, about the likely future happiness of a human being. Fantony v. Fantony, supra, 21 N.J. at 536. Stability, love, family happiness, tolerance, and, ultimately, support of independence — all rank much higher in predicting future happiness than the likelihood of a college education. We do not mean to suggest that the trial court would disagree. We simply want to dispel any possible misunderstanding on the issue.

Even allowing for these differences, the facts, the experts' opinions, and the trial court's analysis of both argue strongly in favor of custody in the Sterns. Mary Beth Whitehead's family life, into which Baby M would be placed, was anything but secure — the quality Melissa needs most. And today it may be even less so.^[18] Furthermore, the evidence and expert opinion based on it reveal personality characteristics, mentioned above, that might threaten the child's best development. The Sterns promise a secure home, with an understanding relationship that allows nurturing and independent growth to develop together. Although there is no substitute for reading the entire record, including the review of every word of each experts' testimony and reports, a summary of their conclusions is revealing. Six experts testified for Mrs. Whitehead: one favored joint custody, clearly unwarranted in this case; one simply rebutted an opposing expert's claim that Mary Beth Whitehead had a recognized personality disorder; one testified to the adverse impact of separation on Mrs. Whitehead; one testified about the evils of adoption and, to him, the probable analogous evils of surrogacy; one spoke only on the question of whether Mrs. Whitehead's consent in the surrogacy agreement was "informed consent"; and one spelled out the strong bond between mother and child. None of them unequivocally stated, or even necessarily implied, an opinion that custody in the Whiteheads was in the best interests of Melissa — the ultimate issue. The Sterns' experts, both well qualified — as were the Whiteheads' — concluded that the best interests of Melissa required custody in Mr. Stern. Most convincingly, the three experts chosen by the court-appointed guardian ad litem of Baby M, each clearly free of all bias and interest, unanimously and persuasively recommended custody in the Sterns.

Some comment is required on the initial ex parte order awarding custody pendente lite to the Sterns (and the continuation of that order after a plenary hearing). The issue, although irrelevant to our disposition of this case, may recur; and when it does, it can be of crucial importance. When father and mother are separated and disagree, at birth, on custody, only in an extreme, truly rare, case should the child be taken from its mother pendente lite, i.e., only in the most unusual case should the child be taken from its mother before the dispute is finally determined by the court on its merits. The probable bond between mother and child, and the child's need, not just the mother's, to strengthen that bond, along with the likelihood, in most cases, of a significantly lesser, if any, bond with the father — all counsel against temporary custody in the father. A substantial showing that the mother's continued custody would threaten the child's health or welfare would seem to be required.

In this case, the trial court, believing that the surrogacy contract might be valid, and faced with the probable flight from the jurisdiction by Mrs. Whitehead and the baby if any notice were served, ordered, ex parte, an immediate transfer of possession of the child, i.e., it ordered that custody be transferred immediately to Mr. Stern, rather than order Mrs. Whitehead not to leave the State. We have ruled, however, that the surrogacy contract is unenforceable and illegal. It provides no basis for either an ex parte, a plenary, an interlocutory, or a final order requiring a mother to surrender custody to a father. Any application by the natural father in a surrogacy dispute for custody pending the outcome of the litigation will henceforth require proof of unfitness, of danger to the child, or the like, of so high a quality and persuasiveness as to make it unlikely that such application will succeed. Absent the required showing, all that a court should do is list the matter for argument on notice to the mother. Even her threats to flee should not suffice to warrant any other relief unless her unfitness is clearly shown. At most, it should result in an order enjoining such flight. The erroneous transfer of custody, as we view it, represents a greater risk to the child than removal to a foreign jurisdiction, unless parental unfitness is clearly proved. Furthermore, we deem it likely that, advised of the law and knowing that her custody cannot seriously be challenged at this stage of the litigation, surrogate mothers will obey any court order to remain in the jurisdiction.

VI.

VISITATION

The trial court's decision to terminate Mrs. Whitehead's parental rights precluded it from making any determination on visitation. 217 N.J. Super. at 399, 408. Our reversal of the trial court's order, however, requires delineation of Mrs. Whitehead's rights to visitation. It is apparent to us that this factually sensitive issue, which was never addressed below, should not be determined de novo by this Court. We therefore remand the visitation issue to the trial court for an abbreviated hearing and determination as set forth below.^[19]

For the benefit of all concerned, especially the child, we would prefer to end these proceedings now, once and for all. It is clear to us, however, that it would be unjust to do so and contrary to precedent.

The fact that the trial court did not address visitation is only one reason for remand. The ultimate question is whether, despite the absence of the trial court's guidance, the record before us is sufficient to allow an appellate court to make this essentially factual determination. We can think of no issue that is more dependent on a trial court's factual findings and evaluation than visitation.

When we examine the record on visitation, the only testimony explicitly dealing with the issue came from the guardian ad litem's experts. Examination of this testimony in light of the complete record, however, reveals that it was an insignificant part of their opinions. The parties, those with a real stake in the dispute, offered no testimony on the issue. The cause for this insufficiency of guidance on the visitation issue was unquestionably the parties' concentration on other, then seemingly much more important, questions: custody, termination of parental rights, and the validity of the surrogacy contract.

Even if we were willing to rely solely on the opinions of the guardian ad litem's experts, their testimony was not fully developed because the issue was not the focus of the litigation. Moreover, the guardian's experts concentrated on determining "best interests" as it related to custody and to termination of parental rights. Their observations about visitation, both in quality and quantity, were really derivative of their views about custody and termination. The guardian's experts were concerned that given Mrs. Whitehead's determination to have custody, visitation might be used to undermine the Sterns' parental authority and thereby jeopardize the stability and security so badly needed by this child. Two of the experts recommended suspension of visitation for five years and the other suspension for an undefined period. None of them fully considered the factors that have led our courts ordinarily to grant visitation in other contexts, with no suspension, even where the non-custodial parent was less than a paragon of virtue. See, e.g., Wilke v. Culp, supra, 196 N.J. Super. at 496; In re Adoption by J.J.P., supra, 175 N.J. Super. at 430. Based on the opinions of her experts, the guardian ad litem recommended suspension of Mrs. Whitehead's visitation rights for five years, with a reevaluation at that time. The basis for that recommendation, whether one regards it as the right or the wrong conclusion, was apparently bolstered when it was learned that Mrs. Whitehead had become pregnant, divorced Richard Whitehead, and then married the father of her new child-to-be. Without any further expert testimony, the guardian ad litem revised her position. She now argues that instead of five years, visitation should be suspended until Melissa reaches majority. This radical change in the guardian ad litem's position reinforces our belief that further consideration must be given to this issue.

The foregoing does not fully describe the extent to which this record leaves us uninformed on the visitation issue. No one, with one exception, included a word about visitation in the final briefs before the trial court. The exception was Mrs. Whitehead's parents who argued for their own visitation. This claim was denied by the trial court and is not now before us. The oral summations of counsel before the trial court were almost equally bereft of even a reference to the visitation issue. Mrs. Whitehead's counsel did not mention visitation. The Sterns' counsel referred to the guardian ad litem's expert testimony about visitation, not to argue for or against visitation but only to support his argument in favor of termination of Mrs. Whitehead's parental rights. The guardian ad litem did argue the visitation issue, devoting a minimal portion of her summation to it. Only the grandparents dealt with visitation, but with their visitation, not with the issue of Mrs. Whitehead's visitation. Finally, on appeal before this Court the record on visitation is inadequate — especially when compared to the treatment of other issues.

We join those who want this litigation to end for the benefit of this child. To spare this two-year-old another sixty to ninety days of litigation, however, at the risk of wrongly deciding this matter, which has life-long consequences for the child and the parties, would be unwise.

We also note the following for the trial court's consideration: First, this is not a divorce case where visitation is almost invariably granted to the non-custodial spouse. To some extent the facts here resemble cases where the non-custodial spouse has had practically no relationship with the child, see Wilke v. Culp, supra, 196 N.J. Super. 487; but it only "resembles" those cases. In the instant case, Mrs. Whitehead spent the first four months of this child's life as her mother and has regularly visited the child since then. Second, she is not only the natural mother, but also the legal mother, and is not to be penalized one iota because of the surrogacy contract. Mrs. Whitehead, as the mother (indeed, as a mother who nurtured her child for its first four months — unquestionably a relevant consideration), is entitled to have her own interest in visitation considered. Visitation cannot be determined without considering the parents' interests along with those of the child.

In all of this, the trial court should recall the touchstones of visitation: that it is desirable for the child to have contact with both parents; that besides the child's interests, the parents' interests also must be considered; but that when all is said and done, the best interests of the child are paramount.

We have decided that Mrs. Whitehead is entitled to visitation at some point, and that question is not open to the trial court on this remand. The trial court will determine what kind of visitation shall be granted to her, with or without conditions, and when and under what circumstances it should commence. It also should be noted that the guardian's recommendation of a five-year delay is most unusual — one might argue that it begins to border on termination. Nevertheless, if the circumstances as further developed by appropriate proofs or as reconsidered on remand clearly call for that suspension under applicable legal principles of visitation, it should be so ordered.

In order that the matter be determined as expeditiously as possible, we grant to the trial court the broadest powers to reach its determination. A decision shall be rendered in no more than ninety days from the date of this opinion.

The trial court shall, after reviewing the transcripts and other material, determine in its discretion whether further evidence is needed and through what witnesses it shall be presented. The trial court should consider limiting the witnesses to the experts who testified and to Mr. and Mrs. Stern and Mr. and Mrs. Whitehead, using its own judgment in deciding which of them, if any, shall be called on to give further evidence. The trial court, in its discretion, may either hear testimony or receive verified written submissions, relaxing the Rules of Evidence to the extent compatible with reliable fact-finding and desirable for an expeditious decision.^[20] Many significant facts bearing on visitation have already been adduced. Although additional evidence may be important, we believe that fairness does not necessarily require that it be produced with all of the procedural safeguards implicit in the Evidence Rules. When it comes to custody matters, application of rules, including those concerning evidence, must on some occasions be flexible, New Jersey Div. of Youth & Family Servs. v. S.S., 185 N.J. Super. 3 (App.Div.), certif. den., 91 N.J. 572 (1982), especially in view of the child's interests in this unique situation.

Any party wishing to appeal from the trial court's judgment on visitation shall file a notice of appeal within ten days thereafter, the Court hereby reducing the ordinary time to appeal pursuant to Rule 2:12-2. Any such appeal is hereby certified to this Court.

Any further proceedings in this matter, or related thereto, if made by application to the trial court shall be made to the judge to whom the matter is assigned on remand. That direction applies to applications related to this matter in any way: whether made before, during, or after proceedings on remand, and regardless of the nature of the application. Any applications for appellate review shall be made directly to this Court.

We would expect that after the visitation issue is determined the trial court, in connection with any other applications in the future, will attempt to assure that this case is treated like any other so that this child may be spared any further damaging publicity.

While probably unlikely, we do not deem it unthinkable that, the major issues having been resolved, the parties' undoubted love for this child might result in a good faith attempt to work out the visitation themselves, in the best interests of their child.

CONCLUSION

This case affords some insight into a new reproductive arrangement: the artificial insemination of a surrogate mother. The unfortunate events that have unfolded illustrate that its unregulated use can bring suffering to all involved. Potential victims include the surrogate mother and her family, the natural father and his wife, and most importantly, the child. Although surrogacy has apparently provided positive results for some infertile couples, it can also, as this case demonstrates, cause suffering to participants, here essentially innocent and well-intended.

We have found that our present laws do not permit the surrogacy contract used in this case. Nowhere, however, do we find any legal prohibition against surrogacy when the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights. Moreover, the Legislature remains free to deal with this most sensitive issue as it sees fit, subject only to constitutional constraints.

If the Legislature decides to address surrogacy, consideration of this case will highlight many of its potential harms. We do not underestimate the difficulties of legislating on this subject. In addition to the inevitable confrontation with the ethical and moral issues involved, there is the question of the wisdom and effectiveness of regulating a matter so private, yet of such public interest. Legislative consideration of surrogacy may also provide the opportunity to begin to focus on the overall implications of the new reproductive biotechnology — in vitro fertilization, preservation of sperm and eggs, embryo implantation and the like. The problem is how to enjoy the benefits of the technology — especially for infertile couples — while minimizing the risk of abuse. The problem can be addressed only when society decides what its values and objectives are in this troubling, yet promising, area.

The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

For affirmance in part, reversal in part and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.

Opposed — None.

[1] Subsequent to the trial court proceedings, Mr. and Mrs. Whitehead were divorced, and soon thereafter Mrs. Whitehead remarried. Nevertheless, in the course of this opinion we will make reference almost exclusively to the facts as they existed at the time of trial, the facts on which the decision we now review was reached. We note moreover that Mr. Whitehead remains a party to this dispute. For these reasons, we continue to refer to appellants as Mr. and Mrs. Whitehead.

[2] The Stern-Whitehead contract (the "surrogacy contract") and the Stern-ICNY contract are reproduced below as Appendices A and B respectively. Other ancillary agreements and their attachments are omitted.

[3] Another argument advanced by Mrs. Whitehead is that the surrogacy agreement violates state wage regulations, N.J.S.A. 34:11-4.7, and the Minimum Wage Standard Act, N.J.S.A. 34:11-56a to -56a30. Given our disposition of the matter, we need not reach those issues.

[4] N.J.S.A.9:3-54 reads as follows:

a. No person, firm, partnership, corporation, association or agency shall make, offer to make or assist or participate in any placement for adoption and in connection therewith

(1) Pay, give or agree to give any money or any valuable consideration, or assume or discharge any financial obligation; or

(2) Take, receive, accept or agree to accept any money or any valuable consideration.

b. The prohibition of subsection a. shall not apply to the fees or services of any approved agency in connection with a placement for adoption, nor shall such prohibition apply to the payment or reimbursement of medical, hospital or other similar expenses incurred in connection with the birth or any illness of the child, or to the acceptance of such reimbursement by a parent of the child.

c. Any person, firm, partnership, corporation, association or agency violating this section shall be guilty of a high misdemeanor.

[5] Of course, here there are no "adoptive parents," but rather the natural father and his wife, the only adoptive parent. As noted, however, many of the dangers of using money in connection with adoption may exist in surrogacy situations.

[6] Counsel for the Sterns argues that the Parentage Act empowers the court to terminate parental rights solely on the basis of the child's best interests. He cites N.J.S.A.9:17-53c, which reads, in pertinent part, as follows:

The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, the repayment of any public assistance grant, or any other matter in the best interests of the child. [Emphasis supplied].

We do not interpret this section as in any way altering or diluting the statutory prerequisites to termination discussed above. Termination of parental rights differs qualitatively from the matters to which this section is expressly directed, and, in any event, we have no doubt that if the Legislature had intended a substantive change in the standards governing an area of such gravity, it would have said so explicitly.

[7] We conclude not only that the surrogacy contract is an insufficient basis for termination, but that no statutory or other basis for termination existed. See infra at 444-447.

[8] The surrogacy situation, of course, differs from the situation in Sees, in that here there is no "adoptive couple," but rather the natural father and the stepmother, who is the would-be adoptive mother. This difference, however, does not go to the basis of the Sees holding. In both cases, the determinative aspect is the vulnerability of the natural mother who decides to surrender her child in the absence of institutional safeguards.

[9] And the impact on the natural parents, Mr. Stern and Mrs. Whitehead, is severe and dramatic. The depth of their conflict about Baby M, about custody, visitation, about the goodness or badness of each of them, comes through in their telephone conversations, in which each tried to persuade the other to give up the child. The potential adverse consequences of surrogacy are poignantly captured here — Mrs. Whitehead threatening to kill herself and the baby, Mr. Stern begging her not to, each blaming the other. The dashed hopes of the Sterns, the agony of Mrs. Whitehead, their suffering, their hatred — all were caused by the unraveling of this arrangement.

[10] We note the argument of the Sterns that the sperm donor section of our Parentage Act, N.J.S.A. 9:17-38 to -59, implies a legislative policy that would lead to approval of this surrogacy contract. Where a married woman is artificially inseminated by another with her husband's consent, the Parentage Act creates a parent-child relationship between the husband and the resulting child. N.J.S.A. 9:17-44. The Parentage Act's silence, however, with respect to surrogacy, rather than supporting, defeats any contention that surrogacy should receive treatment parallel to the sperm donor artificial insemination situation. In the latter case the statute expressly transfers parental rights from the biological father, i.e., the sperm donor, to the mother's husband. Ibid.Our Legislature could not possibly have intended any other arrangement to have the consequence of transferring parental rights without legislative authorization when it had concluded that legislation was necessary to accomplish that result in the sperm donor artificial insemination context.

This sperm donor provision suggests an argument not raised by the parties, namely, that the attempted creation of a parent-child relationship through the surrogacy contract has been preempted by the Legislature. The Legislature has explicitly recognized the parent-child relationship between a child and its natural parents, married and unmarried, N.J.S.A. 9:17-38 to -59, between adoptive parents and their adopted child, N.J.S.A. 9:3-37 to -56, and between a husband and his wife's child pursuant to the sperm donor provision, N.J.S.A. 9:17-44. It has not recognized any others — specifically, it has never legally equated the stepparent-stepchild relationship with the parent-child relationship, and certainly it has never recognized any concept of adoption by contract. It can be contended with some force that the Legislature's statutory coverage of the creation of the parent-child relationship evinces an intent to reserve to itself the power to define what is and is not a parent-child relationship. We need not, and do not, decide this question, however.

[11] Michigan courts have also found that these arrangements conflict with various aspects of their law. See Doe v. Kelley, 106 Mich. App. 169, 307 N.W.2d 438 (1981), cert. den., 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983) (application of sections of Michigan Adoption Law prohibiting the exchange of money to surrogacy is constitutional); Syrkowski v. Appleyard, 122 Mich. App. 506, 333 N.W.2d 90 (1983) (court held it lacked jurisdiction to issue an "order of filiation" because surrogacy arrangements were not governed by Michigan's Paternity Act), rev'd, 420 Mich. 367, 362 N.W.2d 211 (1985) (court decided Paternity Act should be applied but did not reach the merits of the claim).

Most recently, a Michigan trial court in a matter similar to the case at bar held that surrogacy contracts are void as contrary to public policy and therefore are unenforceable. The court expressed concern for the potential exploitation of children resulting from surrogacy arrangements that involve the payment of money. The court also concluded that insofar as the surrogacy contract may be characterized as one for personal services, the thirteenth amendment should bar specific performance. Yates v. Keane, Nos. 9758, 9772, slip op. (Mich.Cir.Ct. Jan. 21, 1988).

The Supreme Court of Kentucky has taken a somewhat different approach to surrogate arrangements. In Surrogate Parenting Assocs. v. Commonwealth ex. rel. Armstrong, 704 S.W.2d 209 (Ky. 1986), the court held that the "fundamental differences" between surrogate arrangements and baby-selling placed the surrogate parenting agreement beyond the reach of Kentucky's baby-selling statute. Id. at 211. The rationale for this determination was that unlike the normal adoption situation, the surrogacy agreement is entered into before conception and is not directed at avoiding the consequences of an unwanted pregnancy. Id. at 211-12.

Concomitant with this pro-surrogacy conclusion, however, the court held that a "surrogate" mother has the right to void the contract if she changes her mind during pregnancy or immediately after birth. Id. at 212-13. The court relied on statutes providing that consent to adoption or to the termination of parental rights prior to five days after the birth of the child is invalid, and concluded that consent before conception must also be unenforceable. Id. at 212-13.

The adoption phase of an uncontested surrogacy arrangement was analyzed in Matter of Adoption of Baby Girl, L.J., 132 Misc.2d 972, 505 N.Y.S.2d 813 (Sur. 1986). Although the court expressed strong moral and ethical reservations about surrogacy arrangements, it approved the adoption because it was in the best interests of the child. Id. at 815. The court went on to find that surrogate parenting agreements are not void, but are voidable if they are not in accordance with the state's adoption statutes. Id. at 817. The court then upheld the payment of money in connection with the surrogacy arrangement on the ground that the New York Legislature did not contemplate surrogacy when the baby-selling statute was passed. Id. at 818. Despite the court's ethical and moral problems with surrogate arrangements, it concluded that the Legislature was the appropriate forum to address the legality of surrogacy arrangements. Ibid.

In contrast to the law in the United States, the law in the United Kingdom concerning surrogate parenting is fairly well-settled. Parliament passed the Surrogacy Arrangements Act, 1985, ch. 49, which made initiating or taking part in any negotiations with a view to making or arranging a surrogacy contract a criminal offense. The criminal sanction, however, does not apply to the "surrogate" mother or to the natural father, but rather applies to other persons engaged in arranging surrogacy contracts on a commercial basis. Since 1978, English courts have held surrogacy agreements unenforceable as against public policy, such agreements being deemed arrangements for the purchase and sale of children. A. v. C., [1985] F.L.R. 445, 449 (Fam. & C.A. 1978). It should be noted, however, that certain surrogacy arrangements, i.e., those arranged without brokers and revocable by the natural mother, are not prohibited under current law in the United Kingdom.

[12] Opponents of surrogacy have also put forth arguments based on the thirteenth amendment, as well as the Peonage Act, 42 U.S.C. § 1994 (1982). We need not address these arguments because we have already held the contract unenforceable on the basis of state law.

[13] As a general rule, a person should be accorded the right to make decisions affecting his or her own body, health, and life, unless that choice adversely affects others. Thus, the United States Supreme Court, while recognizing the right of women to control their own bodies, has rejected the view that the federal constitution vests a pregnant woman with an absolute right to terminate her pregnancy. Instead, the Court declared that the right was "not absolute" so that "at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant." Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. at 728, 35 L.Ed.2d at 178. The balance struck in Roe v. Wade recognizes increasing rights in the fetus and correlative restrictions on the mother as the pregnancy progresses. Similarly, in the termination-of-treatment cases, courts generally have viewed a patient's right to terminate or refuse life-sustaining treatment as constrained by other considerations including the rights of innocent third parties, such as the patient's children. Matter of Farrell, 108 N.J. 335, 352 (1987); Matter of Conroy, 98 N.J. 321, 353 (1985). Consistent with that approach, this Court has directed a mother to submit to a life-saving blood transfusion to protect the interests of her unborn infant, even though the mother's religious scruples led her to oppose the transfusion. Raleigh-Fitkin Paul Morgan Hosp. v. Anderson, 42 N.J. 421, 423 (1964); see also Application of President & Directors of Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir.), cert. den., 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964) (ordering blood transfusion because of mother's "responsibility to the community to care for her infant").

In the present case, the parties' right to procreate by methods of their own choosing cannot be enforced without consideration of the state's interest in protecting the resulting child, just as the right to the companionship of one's child cannot be enforced without consideration of that crucial state interest.

[14] This fundamental right is not absolute. The parent-child biological relationship, by itself, does not create a protected interest in the absence of a demonstrated commitment to the responsibilities of parenthood; a natural parent who does not come forward and seek a role in the child's life has no constitutionally protected relationship. Lehr v. Robertson, supra, 463 U.S. at 258-62, 103 S.Ct. at 2991-93, 77 L.Ed.2d at 624-27; Quilloin v. Walcott, supra, 434 U.S. at 254-55, 98 S.Ct. at 554, 54 L.Ed.2d at 519-20. The right is not absolute in another sense, for it is also well settled that if the state's interest is sufficient the right may be regulated, restricted, and on occasion terminated. See Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.

[15] Were we to find such a constitutional determination necessary, we would be faced with the question of whether it was state action — essential in triggering the fourteenth amendment — that deprived her of that right i.e., whether the judicial decision enforcing the surrogacy contract should be considered "state action" within the scope of the fourteenth amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Cherminsky, "Rethinking State Action," 80 Nw.U.L.Rev. 503 (1985).

[16] If the Legislature were to enact a statute providing for enforcement of surrogacy agreements, the validity of such a statute might depend on the strength of the state interest in making it more likely that infertile couples will be able to adopt children. As a value, it is obvious that the interest is strong; but if, as plaintiffs assert, ten to fifteen percent of all couples are infertile, the interest is of enormous strength. This figure is given both by counsel for the Sterns and by the trial court, 217 N.J. Super.at 331. We have been unable to find reliable confirmation of this statistic, however, and we are not confident of its accuracy. We note that at least one source asserts that in 1982, the rate of married couples who were both childless and infertile was only 5.8%. B. Wattenberg, The Birth Dearth 125 (1987).

On such quantitative differences, constitutional validity can depend, where the statute in question is justified as serving a compelling state interest. The quality of the interference with the parents' right of companionship bears on these issues: if a statute, like the surrogacy contract before us, made the consent given prior to conception irrevocable, it might be regarded as a greater interference with the fundamental right than a statute that gave that effect only to a consent executed, for instance, more than six months after the child's birth. There is an entire spectrum of circumstances that strengthen and weaken the fundamental right involved, and a similar spectrum of state interests that justify or do not justify particular restrictions on that right. We do not believe it would be wise for this Court to attempt to identify various combinations of circumstances and interests, and attempt to indicate which combinations might and which might not constitutionally permit termination of parental rights.

We will say this much, however: a parent's fundamental right to the companionship of one's child can be significantly eroded by that parent's consent to the surrender of that child. That surrender, if voluntarily and knowingly made, may reduce the strength of that fundamental right to the point where a statute awarding custody and all parental rights to an adoptive couple, especially one that includes a parent of the child, would be valid.

[17] At common law the rights of women were so fragile that the husband generally had the paramount right to the custody of children upon separation or divorce. State v. Baird, 21 N.J. Eq. 384, 388 (E. & A. 1869). In 1860 a statute concerning separation provided that children "within the age of seven years" be placed with the mother "unless said mother shall be of such character and habits as to render her an improper guardian." L. 1860, c. 167. The inequities of the common-law rule and the 1860 statute were redressed by an 1871 statute, providing that "the rights of both parents, in the absence of misconduct, shall be held to be equal." L. 1871, c. 48, § 6 (currently codified at N.J.S.A. 9:2-4). Under this statute the father's superior right to the children was abolished and the mother's right to custody of children of tender years was also eliminated. Under the 1871 statute, "the happiness and welfare of the children" were to determine custody, L. 1871, c. 48, § 6, a rule that remains law to this day. N.J.S.A.9:2-4.

Despite this statute, however, the "tender years" doctrine persisted. See, e.g., Esposito v. Esposito, 41 N.J. 143, 145 (1963); Dixon v. Dixon, 71 N.J. Eq. 281, 282 (E. & A. 1906); M.P. v. S.P., 169 N.J. Super. 425, 435 (App.Div. 1979). This presumption persisted primarily because of the prevailing view that a young child's best interests necessitated a mother's care. Both the development of case law and the Parentage Act, N.J.S.A. 9:17-40, however, provide for equality in custody claims. In Beck v. Beck, 86 N.J. 480, 488 (1981), we stated that it would be inappropriate "to establish a presumption ... in favor of any particular custody determination," as any such presumption may "serve as a disincentive for the meticulous fact-finding required in custody cases." This does not mean that a mother who has had custody of her child for three, four, or five months does not have a particularly strong claim arising out of the unquestionable bond that exists at that point between the child and its mother; in other words, equality does not mean that all of the considerations underlying the "tender years" doctrine have been abolished.

[18]Subsequent to trial, and by the time of oral argument, Mr. and Mrs. Whitehead had separated, and the representation was that there was no likelihood of change. Thereafter Mrs. Whitehead became pregnant by another man, divorced Mr. Whitehead, and remarried the other man. Both children are living with Mrs. Whitehead and her new husband. Both the former and present husband continue to assert the desire to have whatever parental relationship with Melissa that the law allows, Mrs. Whitehead continuing to maintain her claim for custody.

We refer to this development only because it suggests less stability in the Whiteheads' lives. It does not necessarily suggest that Mrs. Whitehead's conduct renders her any less a fit parent. In any event, this new development has not affected our decision.

[19] As we have done in similar situations, we order that this matter be referred on remand to a different trial judge by the vicinage assignment judge. The original trial judge's potential "commitment to its findings," New Jersey Div. of Youth & Family Servs. v. A.W., supra, 103 N.J. at 617, and the extent to which a judge "has already engaged in weighing the evidence," In re Guardianship of R., 155 N.J. Super. 186, 195 (App.Div. 1977), persuade us to make that change. On remand the trial court will consider developments subsequent to the original trial court's opinion, including Mrs. Whitehead's divorce, pregnancy, and remarriage.

[20] Ordinarily relaxation of the Rules of Evidence depends on specific authority, either within the Rules or in statutes. See N.J.Rules of Evidence, Comment 2 to Evid.R. 2(2), 72-76 (1987). There are numerous examples, however, of relaxation of these Rules in judicial proceedings for reasons peculiar to the case at hand. We regard the circumstances of the visitation aspect of this case as most unusual. In addition to the ordinary risks to the stability of an infant caused by prolonging this type of litigation, here there are risks from publicity that we simply cannot quantify. We have no doubt that these circumstances justify any sensible means of abbreviating the remand hearing.

[86] COUNSEL

Richard C. Gilbert and Diane J. Marlowe for Plaintiff and Appellant.

Van Deusen, Youmans & Walmsley, Christian R. Van Deusen and Robert R. Walmsley for Defendants and Respondents.

Harold LaFlamme, Michelle Ben-Hur, John L. Dodd and Karen J. Dodd for Minor.

Jon Davidson, Paul L. Hoffman, Carol A. Sobel, Rogers & Wells, Rebecca C. Klipfel and Suzanne M. Madison as Amici Curiae.

[87] OPINION

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^[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 [88] 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 [20 L.Ed.2d 436, 88 S.Ct. 1509] [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 [20 L.Ed.2d 441, 88 S.Ct. 1515] [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 [89] 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.

(1a) These contentions are readily summarized. Anna, of course, predicates her claim of maternity on the fact that she gave birth to the child. The [90] 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), 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 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].) Alternatively, Civil Code section 7004 creates a presumption of paternity based on the man's conduct toward the child (e.g., receiving the child into his home [91] and openly holding the child out as his natural child) or his marriage or attempted marriage to the child's natural mother under specified conditions.^[7]

(2) In our view, the presumptions contained in Civil Code section 7004 do not apply here. They describe situations in which substantial evidence points to a particular man as the natural father of the child. (9B West's U.Laws Ann. (1987) Unif. Parentage Act, com. foll. § 4, p. 299.) In this case, there is no question as to who is claiming the mother and child relationship, and the factual basis of each woman's claim is obvious. Thus, there is no need to resort to an evidentiary presumption to ascertain the identity of the natural mother. Instead, we must make the purely legal determination as between the two claimants.

Significantly for this case, Evidence Code section 892 provides that blood testing may be ordered in an action when paternity is a relevant fact. (3a) When maternity is disputed, genetic evidence derived from blood testing is likewise admissible. (Evid. Code, § 892; see Civ. Code, § 7015.) The Evidence Code further provides that if the court finds the conclusions of all the experts, as disclosed by the evidence based on the [92] blood tests, are that the alleged father is not the father of the child, the question of paternity is resolved accordingly. (Evid. Code, § 895.) By parity of reasoning, blood testing may also be dispositive of the question of maternity. Further, there is a rebuttable presumption of paternity (hence, maternity as well) on the finding of a certain number of genetic markers. (Evid. Code, § 895.5.)

(1b) Disregarding the presumptions of paternity that have no application to this case, then, we 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.^[8]

(3b) We see no clear legislative preference in Civil Code section 7003 as between blood testing evidence and proof of having given birth.^[9] "May" indicates that proof of having given birth is a permitted method of establishing a mother and child relationship, although perhaps not the exclusive one. The disjunctive "or" indicates that blood test evidence, as prescribed in the Act, constitutes an alternative to proof of having given birth. It may be that the language of the Act merely reflects "the ancient dictum mater est quam [gestatio] demonstrat (by gestation the mother is demonstrated). This phrase, by its use of the word `demonstrated,' has always reflected an ambiguity in the meaning of the presumption. It is arguable that, while gestation may demonstrate maternal status, it is not the sine qua non of motherhood. Rather, it is possible that the common law viewed genetic consanguinity as the basis for maternal rights. Under this latter interpretation, gestation [93] simply would be irrefutable evidence of the more fundamental genetic relationship." (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, 370, fns. omitted.) This ambiguity, highlighted by the problems arising from the use of artificial reproductive techniques, is nowhere explicitly resolved in the Act.

(1c) 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.^[10]

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 [94] 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.... [¶] ... [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 original.)

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 [95] 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.

(4) 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.

Preliminarily, Mark and Crispina urge us to interpret the Legislature's 1992 passage of a bill that would have regulated surrogacy as an expression of this state's public policy despite the fact that Governor Wilson's veto prevented the bill from becoming law. Senate Bill No. 937 contained a finding that surrogate contracts are not against sound public and social policy. (Sen. Bill No. 937 (1991-1992 Reg. Sess.).) Had Senate Bill No. 937 become law, there would be no room for argument to the contrary. The veto, however, raises a question whether the legislative declaration truly expresses California's public policy.

In the Governor's veto message we find, not unequivocal agreement with the Legislature's public policy assessment, but rather reservations about the practice of surrogate parenting. "Surrogacy is a relatively recent phenomenon. The full moral and psychological dimensions of this practice are not yet clear. In fact, they are just beginning to emerge. Only two published court opinions in California have treated this nettlesome subject.... Comprehensive regulation of this difficult moral issue is premature.... [¶] To the extent surrogacy continues to be practical, it can be governed by the legal framework already established in the family law area." (Governor's veto message to Sen. on Sen. Bill No. 937 (Sept. 26, 1992) Sen. Daily File (1991-1992 Reg. Sess.) p. 68.) Given this less than ringing endorsement of surrogate parenting, we conclude that the passage of Senate Bill No. 937, in and of itself, does not establish that surrogacy contracts are consistent with public policy. (Of course, neither do we draw the opposite conclusion from the fact of the Governor's veto.)

Anna urges that surrogacy contracts violate several social policies. Relying on her contention that she is the child's legal, natural mother, she cites the public policy embodied in Penal Code section 273, prohibiting the payment for consent to adoption of a child.^[11] She argues further that the policies underlying the adoption laws of this state are violated by the [96] surrogacy contract because it in effect constitutes a prebirth waiver of her parental rights.

We disagree. Gestational surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related medical procedures before the child was conceived; at the time when Anna entered into the contract, therefore, she was not vulnerable to financial inducements to part with her own expected offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up "parental" rights to the child. Payments were due both during the pregnancy and after the child's birth. We are, accordingly, unpersuaded that the contract used in this case violates the public policies embodied in Penal Code section 273 and the adoption statutes. For the same reasons, we conclude these contracts do not implicate the policies underlying the statutes governing termination of parental rights. (See Welf. & Inst. Code, § 202.)

It has been suggested that gestational surrogacy may run afoul of prohibitions on involuntary servitude. (See U.S. Const., Amend. XIII; Cal. Const., art. I, § 6; Pen. Code, § 181.) Involuntary servitude has been recognized in cases of criminal punishment for refusal to work. (Pollock v. Williams (1944) 322 U.S. 4, 18 [88 L.Ed. 1095, 1104, 64 S.Ct. 792, 799]; see, generally, 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 411-414, pp. 591-596.) We see no potential for that evil in the contract at issue here, and extrinsic evidence of coercion or duress is utterly lacking. We note that although at one point the contract purports to give Mark and Crispina the sole right to determine whether to abort the pregnancy, at another point it acknowledges: "All parties understand that a pregnant woman has the [97] absolute right to abort or not abort any fetus she is carrying. Any promise to the contrary is unenforceable." We therefore need not determine the validity of a surrogacy contract purporting to deprive the gestator of her freedom to terminate the pregnancy.

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' will.

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 it. The limited data available seem to reflect an absence of significant adverse effects of surrogacy on all participants.^[12]

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.

[98] Constitutionality of the Determination That Anna Johnson Is Not the Natural Mother

Anna argues at length that her right to the continued companionship of the child is protected under the federal Constitution.

First, we note the constitutional rights that are not implicated here.

There is no issue of procedural due process: although Anna broadly contends that the procedures prescribed for adoptions should be followed in the situation of a gestational surrogate's relinquishment to the genetic parents of the child she has carried and delivered, she cites no specific deficiency in the notice or hearing this matter received.

Furthermore, neither Anna nor amicus curiae ACLU articulates a claim under the equal protection clause, and we are unable to discern in these facts the necessary predicate to its operation. This is because a woman who voluntarily agrees to gestate and deliver for a married couple a child who is their genetic offspring is situated differently from the wife who provides the ovum for fertilization, intending to mother the resulting child.

Anna relies mainly on theories of substantive due process, privacy, and procreative freedom, citing a number of decisions recognizing the fundamental liberty interest of natural parents in the custody and care of their children. (See, e.g., Santosky v. Kramer (1982) 455 U.S. 745, 768 [71 L.Ed.2d 599, 616, 102 S.Ct. 1388]; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649, 101 S.Ct. 2153]; Smith v. Organization of Foster Families (1977) 431 U.S. 816, 842 [53 L.Ed.2d 14, 33-34, 97 S.Ct. 2094]; Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208].) Most of the cases Anna cites deal with the rights of unwed fathers in the face of attempts to terminate their parental relationship to their children. (See, e.g., Stanley v. Illinois, supra, 405 U.S. at pp. 658-659 [31 L.Ed.2d at pp. 562-563]; Quilloin v. Walcott (1978) 434 U.S. 246, 247-248 [54 L.Ed.2d 511, 515-516, 98 S.Ct. 549]; Caban v. Mohammed (1979) 441 U.S. 380 [60 L.Ed.2d 297, 99 S.Ct. 1760]; Lehr v. Robertson (1983) 463 U.S. 248 [77 L.Ed.2d 614, 103 S.Ct. 2985].) These cases do not support recognition of parental rights for a gestational surrogate. Although Anna quotes language stressing the primacy of a developed parent-child relationship in assessing unwed fathers' rights (see Lehr v. Robertson, supra, 463 U.S. at pp. 260-262 [77 L.Ed.2d at pp. 625-627]), certain language in the cases reinforces the importance of genetic parents' rights. (Lehr v. Robertson, supra, 463 U.S. at p. 262 [77 L.Ed.2d at p. 627] ["The significance of the biological connection is that it offers the natural [99] father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development."]; see also Adoption of Kelsey S. (1992) 1 Cal.4th 816, 838 [4 Cal. Rptr.2d 615, 823 P.2d 1216] ["The biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship."].)

Anna's argument depends on a prior determination that she is indeed the child's mother. Since Crispina is the child's mother under California law because she, not Anna, provided the ovum for the in vitro fertilization procedure, intending to raise the child as her own, it follows that any constitutional interests Anna possesses in this situation are something less than those of a mother. As counsel for the minor points out, the issue in this case is not whether Anna's asserted rights as a natural mother were unconstitutionally violated, but rather whether the determination that she is not the legal natural mother at all is constitutional.^[13]

Anna relies principally on the decision of the United States Supreme Court in Michael H. v. Gerald D. (1989) 491 U.S. 110 [105 L.Ed.2d 91, 109 S.Ct. 2333], to support her claim to a constitutionally protected liberty interest in the companionship of the child, based on her status as "birth mother." In that case, a plurality of the court held that a state may constitutionally deny a man parental rights with respect to a child he fathered during a liaison with the wife of another man, since it is the marital family that traditionally has been accorded a protected liberty interest, as reflected in the historic presumption of legitimacy of a child born into such a family. (491 U.S. at pp. 124-125 [105 L.Ed.2d at pp. 106-107] (plur. opn. by Scalia, J.).) The reasoning of the plurality in Michael H. does not assist Anna. Society has not traditionally protected the right of a woman who gestates and delivers a baby pursuant to an agreement with a couple who supply the zygote from which the baby develops and who intend to raise the child as their own; such arrangements are of too recent an origin to claim the protection of tradition. To the extent that tradition has a bearing on the present case, we believe it supports the claim of the couple who exercise their right to procreate in order to form a family of their own, albeit through novel medical procedures.

[100] Moreover, if we were to conclude that Anna enjoys some sort of liberty interest in the companionship of the child, then the liberty interests of Mark and Crispina, the child's natural parents, in their procreative choices and their relationship with the child would perforce be infringed. Any parental rights Anna might successfully assert could come only at Crispina's expense. As we have seen, Anna has no parental rights to the child under California law, and she fails to persuade us that sufficiently strong policy reasons exist to accord her a protected liberty interest in the companionship of the child when such an interest would necessarily detract from or impair the parental bond enjoyed by Mark and Crispina.

Amicus curiae ACLU urges that Anna's right of privacy, embodied in the California Constitution (Cal. Const., art. I, § 1), requires recognition and protection of her status as "birth mother." We cannot agree. Certainly it is true that our state Constitution has been construed to provide California citizens with privacy protections encompassing procreative decisionmaking — broader, indeed, than those recognized by the federal Constitution. (Compare Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 263 [172 Cal. Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118] with Harris v. McRae (1980) 448 U.S. 297, 315-318 [65 L.Ed.2d 784, 803-806, 100, S.Ct. 2671] [reaching opposing results on the question of whether state and federal Constitutions, respectively, permit legislative denial of funding for abortions for indigent women].) However, amicus curiae fails to articulate persuasively how Anna's claim falls within even the broad parameters of the state right of privacy. Amicus curiae appears to assume that the choice to gestate and deliver a baby for its genetic parents pursuant to a surrogacy agreement is the equivalent, in constitutional weight, of the decision whether to bear a child of one's own. We disagree. A woman who enters into a gestational surrogacy arrangement is not exercising her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own.

Drawing an analogy to artificial insemination, Anna argues that Mark and Crispina were mere genetic donors who are entitled to no constitutional protection. That characterization of the facts is, however, inaccurate. Mark and Crispina never intended to "donate" genetic material to anyone. Rather, they intended to procreate a child genetically related to them by the only available means. Civil Code section 7005, governing artificial insemination, has no application here.^[14]

Finally, Anna argues that the Act's failure to address novel reproductive techniques such as in vitro fertilization indicates legislative disapproval of [101] such practices. Given that the Act was drafted long before such techniques were developed, we cannot agree. Moreover, we may not arrogate to ourselves the power to disapprove them. It is not the role of the judiciary to inhibit the use of reproductive technology when the Legislature has not seen fit to do so; any such effort would raise serious questions in light of the fundamental nature of the rights of procreation and privacy. Rather, our task has been to resolve the dispute before us, interpreting the Act's use of the term "natural mother" (Civ. Code, § 7003, subd. (1)) when the biological functions essential to bringing a child into the world have been allocated between two women.

DISPOSITION

The judgment of the Court of Appeal is affirmed.

Lucas, C.J., Mosk, J., Baxter, J., and George, J., concurred.

ARABIAN, J., Concurring.

I concur in the decision to find under the Uniform Parentage Act that Crispina Calvert is the natural mother of the child she at all times intended to parent and raise as her own with her husband Mark, the child's natural father. That determination answers the question on which this court granted review, and in my view sufficiently resolves the controversy between the parties to warrant no further analysis. I therefore decline to subscribe to the dictum in which the majority find surrogacy contracts "not... inconsistent with public policy." (Maj. opn., ante, pp. 95-97.)

Surrogacy contracts touch upon one of the most, if not the most, sensitive subjects of human endeavor. Not only does the birth of a new generation perpetuate our species, it allows every parent to contribute, both genetically and socially, to our collective understanding of what it means to be human. Every child also offers the opportunity of a unique lifetime relationship, potentially more satisfying and fulfilling than any other pursuit. (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 837 [4 Cal. Rptr.2d 615, 823 P.2d 1216].)

[102] The multiplicity of considerations at issue in a surrogacy situation plainly transcend traditional principles of contract law and require careful, nonadversarial analysis. For this reason, I do not think it wise for this court to venture unnecessarily into terrain more appropriately cleared by the Legislature in the first instance. In this regard, the Florida Supreme Court made the following pertinent observations; although the factual context obviously differs, socially and morally it compares in the most profound respects: "Because the issue with all its ramifications is fraught with complexity and encompasses the interests of the law, both civil and criminal, medical ethics and social morality, it is not one which is well-suited for resolution in an adversary judicial proceeding. It is the type [of] issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated." (Satz v. Perlmutter (Fla. 1980) 379 So.2d 359, 360, affg. (Fla. Dist. Ct. App. 1978) 362 So.2d 160.) The New Jersey Supreme Court echoed similar cautionary tones in Matter of Conroy (1985) 98 N.J. 321 [486 A.2d 1209, 48 A.L.R.4th 1]: "As an elected body, the Legislature is better able than any other single institution to reflect the social values at stake. In addition, it has the resources and ability to synthesize vast quantities of data and opinions from a variety of fields and to formulate general guidelines that may be applicable to a broad range of situations." (Id., 486 A.2d at pp. 1220-1221; accord, Matter of Guardianship of Hamlin (1984) 102 Wn.2d 810, 821-822 [689 P.2d 1372, 1378-1379].)

Clearly, this court should not avoid proper resolution of the issue before it. "[T]he law, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of." (In re Quinlan (1976) 70 N.J. 10, 44 [355 A.2d 647, 665, 79 A.L.R.3d 205], cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922 [50 L.Ed.2d 289, 97 S.Ct. 319].) Nevertheless, I would not move beyond the available legal mechanism into such socially and morally uncharted waters. The implications of addressing the general soundness of surrogacy contracts are vast and profound. To date, the legislative process has failed to produce a satisfactory answer. This court should be chastened and not emboldened by that failure.

KENNARD, J., Dissenting.

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 [103] 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.

For each child, California law accords the legal rights and responsibilities of parenthood to only one "natural mother." When, as here, the female reproductive role is divided between two women, California law requires courts to make a decision as to which woman is the child's natural mother, but provides no standards by which to make that decision. The majority's resort to "intent" to break the "tie" between the genetic and gestational mothers is unsupported by statute, and, in the absence of appropriate protections in the law to guard against abuse of surrogacy arrangements, it is ill-advised. To determine who is the legal mother of a child born of a gestational surrogacy arrangement, I would apply the standard most protective of child welfare — the best interests of the child.

I. FACTUAL BACKGROUND

This case arises from an agreement made between Mark and Crispina Calvert, a married couple, and Anna Johnson, a single woman. As the result of a hysterectomy, Crispina was unable to become pregnant, although her ovaries could still produce eggs. When she and her husband Mark desired to have a child, they arranged with Anna for Anna's impregnation with an embryo formed from Crispina's egg and Mark's sperm. Mark and Crispina agreed to pay Anna installment payments totaling $10,000, the last installment not due until six weeks after Anna gave birth. In exchange, Anna agreed to carry the child to term and, after giving birth, to relinquish her parental rights to the child.

Six months into the pregnancy, Anna's relationship with Mark and Crispina broke down. Both sides filed lawsuits seeking declarations of parental rights in the unborn child. While these consolidated actions were still pending, on September 19, 1990, Anna gave birth. By agreement of the parties, the court awarded immediate custody of the child to Mark and Crispina, but granted visitation rights to Anna.

The matter went to trial in October 1990. The parties stipulated that Mark and Crispina were the genetic parents of the child to whom Anna had given birth. The trial court ruled in favor of Mark and Crispina, concluding that as the child's "genetic" and "biological" father and mother, they were also his "natural" father and mother. The Court of Appeal affirmed.

[104] We granted review to address an issue of first impression: Under California law, how does a court determine who is the legal mother of a child born of a gestational surrogacy arrangement?

II. THIS OPINION'S APPROACH

The determination of a question of parental rights to a child born of a surrogacy arrangement was before the New Jersey Supreme Court in Matter of Baby M. (1988) 109 N.J. 396 [537 A.2d 1227, 77 A.L.R.4th 1], a case that received worldwide attention. But in the surrogacy arrangement at issue there the woman who gave birth to the child, Marybeth Whitehead, had been impregnated by artificial insemination with the sperm of the intending father, William Stern. Whitehead thus provided the genetic material and carried the fetus to term. This case is different, because here those two aspects of the female role in reproduction were divided between two women. This process is known as "gestational" surrogacy, to distinguish it from the surrogacy arrangement involved in Baby M.^[15]

In this opinion, I first discuss gestational surrogacy in light of the medical advances that have made it a reality. I next consider the wider social and philosophical implications of using gestational surrogacy to give birth to a child, and set out some of the suggested models for deciding the child's parentage in this situation. I then review a comprehensive model legislative scheme, not enacted in California, designed to accommodate the interests of all participants in surrogacy arrangements. I next turn to California's Uniform Parentage Act, and critique the majority's reliance on "intent" as the determinative factor under that act in deciding who is the "natural," and thus legal, mother of a child born of a gestational surrogacy arrangement. Finally, I explain why, in the absence of legislation designed to address the unique problems of gestational surrogacy, courts deciding who is the legal mother of a child born of gestational surrogacy should look to the best interests of that child.

[105] III. GESTATIONAL SURROGACY

Recent advances in medical technology have dramatically expanded the means of human reproduction. Among the new technologies are in vitro fertilization, embryo and gamete freezing and storage, gamete intra-fallopian transfer, and embryo transplantation. (Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 Wis.L.Rev. 297, 299 fn. 5 [hereafter Reproductive Technology].) Gestational surrogacy is the result of two of these techniques: in vitro fertilization and embryo transplantation. (See Shalev, Birth Power: The Case for Surrogacy (Yale U. Press 1989) p. 115.)

In vitro fertilization or IVF is the fertilization of a human egg outside the human body in a laboratory. Children that have been conceived this way are often called "test tube babies," because their actual conception took place in a petri dish. The first live birth of a child conceived in vitro occurred in 1979 in Great Britain after 20 years of research by a British team. (Shalev, Birth Power: The Case for Surrogacy, supra, at p. 105.)

To facilitate the retrieval or "harvesting" of eggs for in vitro fertilization, a woman ingests fertility hormones to induce "superovulation" or the production of multiple eggs. The eggs are then removed through aspiration, a nonsurgical technique, or through an invasive surgical procedure known as laparoscopy. (See generally Developments in the Law: Medical Technology and the Law (1990) 103 Harv.L.Rev. 1519, 1537-1542 [hereafter Medical Technology].) To undergo superovulation and egg retrieval is taxing, both physically and emotionally; the hormones used for superovulation produce bodily changes similar to those experienced in pregnancy, while the surgical removal of mature eggs has been likened to caesarian-section childbirth. (Id., at p. 1540; Shalev, Birth Power: The Case for Surrogacy, supra, at pp. 117-118.)

After removal, eggs are exposed to live sperm in a petri dish. If an egg is fertilized, the resulting zygote is allowed to divide and become multicellular before uterine implantation. The expense and low success rate of in vitro fertilization demonstrate just how much prospective parents are willing to endure to achieve biological parenthood. (Medical Technology, supra, 103 Harv.L.Rev. at p. 1539.)

Generally, an egg fertilized in vitro is implanted in the uterus of the woman who produced it. The technique, however, allows for embryo transplantation, which is the transfer of an embryo formed from one woman's egg to the uterus of another woman who will gestate the fetus to term. This can [106] take place in at least three different situations: (1) a woman may donate an egg that, when fertilized, will be implanted in the uterus of a woman who intends to raise the child; (2) the woman who provides the egg may herself intend to raise the child carried to term by a gestational surrogate; or (3) a couple desiring a child may arrange for a surrogate to gestate an embryo produced from an egg and sperm, both donated (perhaps by close relatives of the couple). (Goodwin, Determination of Legal Parentage in Egg Donation, Embryo Transplantation, and Gestational Surrogacy Arrangements (1992) 26 Fam.L.Q. 275, 276-277 [hereafter Determination of Legal Parentage].)

The division of the female reproductive role in gestational surrogacy points up the three discrete aspects of motherhood: genetic, gestational and social. The woman who contributes the egg that becomes the fetus has played the genetic role of motherhood; the gestational aspect is provided by the woman who carries the fetus to term and gives birth to the child; and the woman who ultimately raises the child and assumes the responsibilities of parenthood is the child's social mother. (Shalev, Birth Power: The Case for Surrogacy, supra, at p. 115; see also Macklin, Artificial Means of Reproduction and Our Understanding of the Family (1991) 21 Hastings Center Rep. 5, 6.)

IV. POLICY CONSIDERATIONS

The ethical, moral and legal implications of using gestational surrogacy for human reproduction have engendered substantial debate. A review of the scholarly literature that addresses gestational surrogacy reveals little consensus on the desirability of surrogacy arrangements, particularly those involving paid surrogacy, or on how best to decide questions of the parentage of children born of such arrangements.

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" [107] 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.)

One constitutional law scholar argues that the use of techniques such as gestational surrogacy is constitutionally protected and should be restricted only on a showing of a compelling state interest. (Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth (1983) 69 Va.L.Rev. 405; Robertson, Procreative Liberty and the State's Burden of Proof in Regulating Noncoital Reproduction, in Surrogate Motherhood, supra, pp. 24-26, 35; Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction (1986) 59 So.Cal.L.Rev. 939, 960.) Professor Robertson reasons that procreation is itself protected under decisions of the United States Supreme Court that affirm the basic civil right to marry and raise children. (Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, supra, 69 Va.L.Rev. at p. 414, fns. 22, 23, citing Meyer v. Nebraska (1923) 262 U.S. 390, 399 [67 L.Ed. 1042, 1045, 43 S.Ct. 625, 29 A.L.R. 1446] ["right ... to marry, establish a home and bring up children" protected by the Fourteenth Amendment]; Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110] [describing marriage and procreation as basic human civil rights]; Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558-559, 92 S.Ct. 1208] [emphasizing the importance of the rights "to conceive and raise one's children"].) From this premise, he argues that the right to procreate should extend to persons who cannot conceive or bear children. (Robertson, Procreative Liberty and the Control of Conception, Pregnancy and Childbirth, supra, 69 Va.L.Rev. at p. 411 ["Sterility bars one from conceiving or bearing only to the extent that medicine or society cannot overcome the particular cause of infertility"]; Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, supra, 59 So.Cal.L.Rev. at p. 960 ["The use of noncoital techniques ... should ... also be protected."].)

Professor Robertson's thesis of broad application of the right of privacy for all procreational techniques has been questioned, however, in light of recent United States Supreme Court jurisprudence. (See Medical Technology, supra, 103 Harv.L.Rev. 1519, 1530, citing Michael H. v. Gerald D. (1989) 491 U.S. 110 [105 L.Ed.2d 91, 109 S.Ct. 2333], as evidence of the high court's reluctance "to extend the right of privacy to new relationships and activities" that the court has not perceived to merit "traditional protection.")

Surrogacy critics, however, maintain that the payment of money for the gestation and relinquishment of a child threatens the economic exploitation [108] 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.)

Organizations representing diverse viewpoints share many of the concerns highlighted by the legal commentators. For example, the American Medical Association considers the conception of a child for relinquishment after birth [109] to pose grave ethical problems. (Rep. of the Judicial Council, in Surrogate Motherhood, supra, at p. 304.) Likewise, the official position of the Catholic Church is that surrogacy arrangements are "`contrary to the unity of marriage and to the dignity of the procreation of the human person.'" (Magisterium of the Catholic Church, Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day 25 (Feb. 22, 1987), cited in Radin, Market-Inalienability, supra, 100 Harv.L.Rev. 1849, 1928, fn. 271.)

The policy statement of the New York State Task Force on Life and the Law sums up the broad range of ethical problems that commercial surrogacy arrangements are viewed to present: "The gestation of children as a service for others in exchange for a fee is a radical departure from the way in which society understands and values pregnancy. It substitutes commercial values for the web of social, affective and moral meanings associated with human reproduction.... This transformation has profound implications for childbearing, for women, and for the relationship between parents and the children they bring into the world. [¶] ... [¶] Surrogate parenting allows the genetic, gestational and social components of parenthood to be fragmented, creating unprecedented relationships among people bound together by contractual obligation rather than by the bonds of kinship and caring.... [¶] ... [¶] ... Surrogate parenting alters deep-rooted social and moral assumptions about the relationship between parents and children.... [¶] ... [It] is premised on the ability and willingness of women to abdicate [their parental] responsibility without moral compunction or regret [and] makes the obligations that accompany parenthood alienable and negotiable." (New York State Task Force on Life and the Law, Surrogate Parenting: Analysis and Recommendations for Public Policy (May 1988) in Surrogate Motherhood, supra, at pp. 317-318.)

Proponents and critics of gestational surrogacy propose widely differing approaches for deciding who should be the legal mother of a child born of a gestational surrogacy arrangement. Surrogacy advocates propose to enforce pre-conception contracts in which gestational mothers have agreed to relinquish parental rights, and, thus, would make "bargained-for intentions determinative of legal parenthood." (Shultz, Reproductive Technology, supra, 1990 Wis.L.Rev. at p. 323.) Professor Robertson, for instance, contends that "The right to noncoital, collaborative reproduction also includes the right of the parties to agree how they should allocate their obligations and entitlements with respect to the child. Legal presumptions of paternity and maternity would be overridden by this agreement of the parties." (Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, supra, 69 Va.L.Rev. 405, 436; see also Shalev, Birth Power: The Case [110] for Surrogacy, supra, at p. 141 [arguing for enforcing the parties' legal expectations].)

Surrogacy critics, on the other hand, consider the unique female role in human reproduction as the determinative factor in questions of legal parentage. They reason that although males and females both contribute genetic material for the child, the act of gestating the fetus falls only on the female. (See Radin, Market-Inalienability, supra, 100 Harv.L.Rev. 1849, 1932, fn. 285 [pointing out the "asymmetrical" interests of males and females in human reproduction].) Accordingly, in their view, a woman who, as the result of gestational surrogacy, is not genetically related to the child she bears is like any other woman who gives birth to a child. In either situation the woman giving birth is the child's mother. (See Capron & Radin, Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood, in Surrogate Motherhood, supra, at pp. 64-65.) Under this approach, the laws governing adoption should govern the parental rights to a child born of gestational surrogacy. Upon the birth of the child, the gestational mother can decide whether or not to relinquish her parental rights in favor of the genetic mother. (Ibid.)

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 discussed above.

The commissioners gave careful consideration to the competing interests of the various participants in assisted conception arrangements, and sought to accommodate those interests in the model legislation. Their overriding concern, however, was the well-being of children born of gestational surrogacy and other types of assisted conception. As the foreword to the model legislation notes, the extraordinary circumstances of these children's births deprive them of parentage in the traditional sense. (9B West's U. Laws Ann. (1992 Supp.) USCACA, supra, at p. 123.) Thus, the intent of the proposed legislation was to define with precision the legal status of these children as well as to codify the rights of the other participants in a surrogacy arrangement. The commissioners proposed alternative versions of the USCACA: one that would disallow gestational surrogacy and another that would permit it only under court supervision.

[111] 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).)

To obtain court approval, the parties to the surrogacy arrangement must file a petition. (USCACA, § 6, subd. (a).) The model legislation provides for the court to appoint a guardian ad litem for the intended child and legal counsel for the surrogate mother. (Ibid.) Before approving a surrogacy arrangement, the trial court must conduct a hearing and enter detailed findings, including the following: medical evidence shows the intended mother's inability to bear a child or that for her to do so poses an unreasonable risk to the unborn child or to the physical or mental health of the intended mother; all parties to the surrogacy agreement (including the surrogate's husband if she has one) meet the standards of fitness of adoptive parents; the agreement was voluntary and all parties understand its terms; the surrogate mother has undergone at least one successful pregnancy and medical evidence shows that another pregnancy will not endanger her physical or mental health or pose an unreasonable risk to the unborn child; and all parties have received professional mental health counseling pertaining to the effect of the surrogacy arrangement. (USCACA, § 6, subd. (b).) These provisions serve to minimize the potential for overreaching and to ensure that all parties to a surrogacy arrangement understand their respective roles and obligations.

The USCACA offers predictability in delineating the parentage of children born of gestational surrogacy arrangements. Under the model legislation, if enacted, there would never be a question as to who has the legal responsibility for a child born of a gestational surrogacy arrangement: If the couple who initiated the surrogacy had complied with the provisions of the legislation, they would be the child's legal parents. If they had not, the rights and responsibilities of parenthood would go to the woman who gave birth to the child and her spouse.

Because California Legislature has not enacted the Uniform Status of Children of Assisted Conception Act, its provisions were not followed in this case.

[112] VI. THE UNIFORM PARENTAGE ACT

The only California statute defining parental rights is the Uniform Parentage Act (hereafter also UPA). (See Civ. Code, § 7000 et seq.).^[16] The Legislature enacted the UPA to abolish the concept of illegitimacy and to replace it with the concept of parentage. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 828 [4 Cal. Rptr.2d 615, 823 P.2d 1216].) The UPA was never intended by the Legislature to govern the issues arising from new reproductive technologies such as gestational surrogacy. Nevertheless, the UPA is on its face broadly applicable, and it is in any event the only statutory guidance this court has in resolving this case.

The provisions of the UPA "extend[] equally to every child and to every parent, regardless of the marital status of the parents." (§ 7002.) The parent-child relationship defined by the UPA accords a child's parents both rights and obligations. (§ 7001.) A primary focus of the UPA is the determination of paternity and enforcement of financial responsibility. (§§ 7006 [actions to determine paternity], 7012 [specifying financial support obligations].)

When a child is born by gestational surrogacy, as happened here, the two women who played biological roles in creating the child will both have statutory claims under the UPA to being the child's natural mother. The UPA permits a woman to establish that she is "the natural mother" of a child by "proof of ... having given birth to the child...." (§ 7003, subd. (1).) Thus, a gestational mother qualifies as a "natural mother" under the statute. (Ibid.) Alternatively, the UPA allows a woman to prove she is a mother in the same manner as a man may prove he is a father. (§§ 7003, subd. (1), 7015 [permitting actions to establish a mother and child relationship using parts of the UPA "applicable to the father and child relationship"].) A man may demonstrate he is a child's natural father through genetic marker evidence derived from blood testing. (§ 7004, subd. (a); Evid. Code, §§ 621, 892, 895.) Accordingly, a genetic mother may also demonstrate she is a child's natural mother through such genetic evidence. Here, both Anna, the gestational mother, and Crispina, the genetic mother, have offered proof acceptable under the UPA to qualify as the child's natural mother.

By its use of the phrase "the natural mother," however, the UPA contemplates that a child will have only one natural mother. (§ 7003, subd. (1), italics added.) But the UPA provides no standards for determining who that natural mother should be when, as here, two different women can offer biological proof of being the natural mother of the same child under its [113] provisions. Thus, the UPA by its terms cannot resolve the conflict in this case.

VII. ANALYSIS OF THE MAJORITY'S "INTENT" TEST

Faced with the failure of current statutory law to adequately address the issue of who is a child's natural mother when two women qualify under the UPA, the majority breaks the "tie" by resort to a criterion not found in the UPA — the "intent" of the genetic mother to be the child's mother.

This case presents a difficult issue. The majority's resolution of that issue deserves serious consideration. 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 [114] 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 [115] 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 their 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.

Thus, three of the majority's four arguments in support of its exclusive reliance on the intent of the genetic mother as determinative in gestational surrogacy cases cannot withstand analysis. And, as I shall discuss shortly, the majority's fourth rationale has merit, but does not support the majority's conclusion. But before turning to the majority's fourth rationale, 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: [116] 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." (Id. 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.).)^[17] 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.

To summarize, the woman who carried the fetus to term and brought a child into the world has, like the genetic mother, a substantial claim to be the natural mother of the child. The gestational mother has made an indispensable and unique biological contribution, and has also gone beyond biology in an intangible respect that, though difficult to label, cannot be denied. Accordingly, I cannot agree with the majority's devaluation of the role of the gestational mother.

I find the majority's reliance on "intent" unsatisfactory for yet another reason. By making intent determinative of parental rights to a child born of [117] a gestational surrogacy arrangement, the majority would permit enforcement of a gestational surrogacy agreement without requiring any of the protections that would be afforded by the Uniform Status of Children of Assisted Conception Act. Under that act, the granting of parental rights to a couple that initiates a gestational surrogacy arrangement would be conditioned upon compliance with the legislation's other provisions. They include court oversight of the gestational surrogacy arrangement before conception, legal counsel for the woman who agrees to gestate the child, a showing of need for the surrogacy, medical and mental health evaluations, and a requirement that all parties meet the standards of fitness of adoptive parents. (USCACA, §§ 5, 6.)

In my view, protective requirements such as those set forth in the USCACA are necessary to minimize any possibility in gestational surrogacy arrangements for overreaching or abuse by a party with economic advantage. As the New Jersey Supreme Court recognized, it will be a rare instance when a low income infertile couple can employ an upper income surrogate. (Matter of Baby M., supra, 537 A.2d 1227, 1249.) The model act's carefully drafted provisions would assure that the surrogacy arrangement is a matter of medical necessity on the part of the intending parents, and not merely the product of a desire to avoid the inconveniences of pregnancy, together with the financial ability to do so. Also, by requiring both pre-conception psychological counseling for all parties and judicial approval, the model act would assure that parties enter into a surrogacy arrangement only if they are legally and psychologically capable of doing so and fully understand all the risks involved, and that the surrogacy arrangement would not be substantially detrimental to the interests of any individual. Moreover, by requiring judicial approval, the model act would significantly discourage the rapid expansion of commercial surrogacy brokerage and the resulting commodification of the products of pregnancy. In contrast, here the majority's grant of parental rights to the intending mother contains no provisions for the procedural protections suggested by the commissioners who drafted the model act. The majority opinion is a sweeping endorsement of unregulated gestational surrogacy.

The majority's final argument in support of using the intent of the genetic mother as the exclusive determinant of the outcome in gestational surrogacy cases is that preferring the intending mother serves the child's interests, which are "`[u]nlikely to run contrary to those of adults who choose to bring [the child] into being.'" (Maj. opn., ante, at p. 94, quoting Schultz, Reproductive Technology, supra, 1990 Wis. L.Rev. at p. 397.)

I agree with the majority that the best interests of the child is an important goal; indeed, as I shall explain, the best interests of the child, rather than the [118] intent of the genetic mother, is the proper standard to apply in the absence of legislation. The problem with the majority's rule of intent is that application of this inflexible rule will not serve the child's best interests in every case.

I express no view on whether the best interests of the child in this case will be served by determining that the genetic mother is or is not the natural mother under California's Uniform Parentage Act. It may be that in this case the child's interests will be best served by recognizing Crispina as the natural mother. But this court is not just making a rule to resolve this case. Because the UPA does not adequately address the situation of gestational surrogacy, this court is of necessity making a rule that, unless new legislation is enacted, will govern all future cases of gestational surrogacy in California. And all future cases will not be alike. The genetic mother and her spouse may be, in most cases, considerably more affluent than the gestational mother. But "[t]he mere fact that a couple is willing to pay a good deal of money to obtain a child does not vouchsafe that they will be suitable parents...." (Capron & Radin, Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood, in Surrogate Motherhood, supra, at pp. 65-66.) It requires little imagination to foresee cases in which the genetic mothers are, for example, unstable or substance abusers, or in which the genetic mothers' life circumstances change dramatically during the gestational mothers' pregnancies, while the gestational mothers, though of a less advantaged socioeconomic class, are stable, mature, capable and willing to provide a loving family environment in which the child will flourish. Under those circumstances, the majority's rigid reliance on the intent of the genetic mother will not serve the best interests of the child.

VIII. THE BEST INTERESTS OF THE CHILD

As I have discussed, in California the existing statutory law applicable to this case is the Uniform Parentage Act which was never designed to govern the new reproductive technology of gestational surrogacy. Under the UPA, both the genetic mother and the gestational mother have an equal right to be the child's natural mother. But the UPA allows one natural mother for each child, and thus this court is required to make a choice. To break this "tie" between the genetic mother and the gestational mother, the majority uses the legal concept of intent. In so doing, the majority has articulated a rationale for using the concept of intent that is grounded in principles of tort, intellectual property and commercial contract law.

But, as I have pointed out, we are not deciding a case involving the commission of a tort, the ownership of intellectual property, or the delivery of goods under a commercial contract; we are deciding the fate of a child. In [119] the absence of legislation that is designed to address the unique problems of gestational surrogacy, this court should look not to tort, property or contract law, but to family law, as the governing paradigm and source of a rule of decision.

The allocation of parental rights and responsibilities necessarily impacts the welfare of a minor child. And in issues of child welfare, the standard that courts frequently apply is the best interests of the child. (See §§ 222.20, 222.36, 224.64 [matters relating to adoption and temporary placement], 4600 [child custody], 4601 [visitation].) Indeed, it is highly significant that the UPA itself looks to a child's best interests in deciding another question of parental rights. (§ 7017, subd. (d)(2).) This "best interests" standard serves to assure that in the judicial resolution of disputes affecting a child's well-being, protection of the minor child is the foremost consideration. Consequently, I would apply "the best interests of the child" standard to determine who can best assume the social and legal responsibilities of motherhood for a child born of a gestational surrogacy arrangement.^[18]

The determination of a child's best interests does not depend on the parties' relative economic circumstances, which in a gestational surrogacy situation will usually favor the genetic mother and her spouse. (See Matter of Baby M., supra, 537 A.2d at p. 1249.) As this court has recognized, however, superior wealth does not necessarily equate with good parenting. (See Burchard v. Garay (1986) 42 Cal.3d 531, 540 [229 Cal. Rptr. 800, 724 P.2d 486, 62 A.L.R.4th 237].)

[120] Factors that are pertinent to good parenting, and thus that are in a child's best interests, include the ability to nurture the child physically and psychologically (Cahill, The Ethics of Surrogate Motherhood: Biology, Freedom, and Moral Obligation, in Surrogate Motherhood, supra, at p. 160), and to provide ethical and intellectual guidance (see In re Marriage of Carney (1979) 24 Cal.3d 725, 739 [157 Cal. Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028]). Also crucial to a child's best interests is the "well recognized right" of every child "to stability and continuity." (Burchard v. Garay, supra, 42 Cal.3d at p. 546 (conc. opn. of Mosk, J.).) The intent of the genetic mother to procreate a child is certainly relevant to the question of the child's best interests; alone, however, it should not be dispositive.

Here, the child born of the gestational surrogacy arrangement between Anna Johnson and Mark and Crispina Calvert has lived continuously with Mark and Crispina since his birth in September 1990. The trial court awarded parental rights to Mark and Crispina, concluding that as a matter of law they were the child's "genetic, biological and natural" parents.^[19] In reaching that conclusion, the trial court did not treat Anna's statutory claim to be the child's legal mother as equal to Crispina's, nor did the trial court consider the child's best interests in deciding between those two equal statutory claims. Accordingly, I would remand the matter to the trial court to undertake that evaluation.

CONCLUSION

Recent advances in medical technology have made it possible for the human female reproductive role to be divided between two women, the genetic mother and the gestational mother. Such gestational surrogacy arrangements call for sensitivity to each of the adult participants. But the paramount concern must be the well-being of the child that gestational surrogacy has made possible.

The model legislation proposed by the National Conference of Commissioners on Uniform Laws would protect such children's well-being by precisely defining their parentage. Such precision is not possible using a "best interests of the child" standard, which requires a case-by-case evaluation after the birth of the child. But that evaluation would afford many protections similar to those set out in USCACA, such as judicial oversight, legal counsel, and an opportunity for the court to determine who best can provide for the child.

I recognize that, for couples such as Mark and Crispina, gestational surrogacy offers the only hope of raising a child who is genetically related to [121] both. But the desire for a genetically related child does not diminish the substantial concerns expressed by a broad spectrum of commentators that surrogacy left unregulated poses a fundamental threat to the well-being of women and children. This threat could largely be allayed by legislation permitting gestational surrogacy, but under court supervision and with the type of procedural requirements proposed in the USCACA that serve to protect all of those affected by a gestational surrogacy arrangement, particularly the child. In my view, the Legislature should turn its attention to the complex issues posed by gestational surrogacy.

In this opinion, I do not purport to offer a perfect solution to the difficult questions posed by gestational surrogacy; perhaps there can be no perfect solution. But in the absence of legislation specifically designed to address the complex issues of gestational surrogacy and to protect against potential abuses, I cannot join the majority's uncritical validation of gestational surrogacy.

I would reverse the judgment of the Court of Appeal, and remand the case to the trial court for a determination of disputed parentage on the basis of the best interests of the child.

[1] An organism produced by the union of two gametes. (McGraw-Hill Dict. of Scientific and Technical Terms (4th ed. 1989) p. 783.)

[2] 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.)

[3] The statement of facts and the discussion of the legislative history of the Uniform Parentage Act, post, pages 88-89, are adapted from the opinion of the Court of Appeal.

[4] At the time of the agreement, Anna already had a daughter, Erica, born in 1987.

[5] Effective January 1, 1994, Civil Code sections 7000-7021 have been repealed and replaced with equivalent provisions in the Family Code. (Stats. 1992, ch. 162, § 4; see Fam. Code, §§ 7600-7650 [eff. Jan. 1, 1994].)

[6] Evidence Code section 621 provides in relevant part as follows: "(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. [¶] (b) Notwithstanding subdivision (a), if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7, are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." Effective January 1, 1994, Evidence Code sections 621 and 890 through 897 have been repealed and replaced with equivalent provisions of the Family Code. (Stats. 1992, ch. 162, §§ 8, 9; see Fam. Code, §§ 7500-7501, 7550-7557 [eff. Jan. 1, 1994].)

[7] Civil Code section 7004 provides as follows: "(a) A man is presumed to be the natural father of a child if he meets the conditions as set forth in Section 621 of the Evidence Code or in any of the following paragraphs: [¶] (1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court. [¶] (2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following are true: [¶] (i) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (ii) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (i) With his consent, he is named as the child's father on the child's birth certificate. [¶] (ii) He is obligated to support the child under a written voluntary promise or by court order. [¶] (4) He receives the child into his home and openly holds out the child as his natural child. [¶] (5) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. [¶] This paragraph shall remain in effect only until January 1, 1997, and on that date shall become inoperative. [¶] ... [¶] (c) Except as provided in Section 621 and 621.1 of the Evidence Code, a presumption under this section is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise under this section which conflict with each other, the presumption which, on the facts, is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man."

[8] 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.

[9] The Court of Appeal interpreted Civil Code section 7003, subdivision (1), to mean that only a "natural" mother can establish a mother and child relationship by proof of having given birth, and that a woman must first demonstrate, through blood test evidence, that she is the "natural" mother of the child before her evidence of having given birth can establish that she is the child's natural mother. We disagree with the Court of Appeal's reading of the statute. In our view, the term "natural" as used in subdivision (1) of Civil Code section 7003 simply refers to a mother who is not an adoptive mother. Section 7003 does not purport to answer the question before us, i.e., who is to be deemed the natural mother when the biological functions essential to bringing a child into the world have been allocated between two women.

[10] 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.

[11] Penal Code section 273 provides, in pertinent part, as follows: "(a) It is a misdemeanor for any person or agency to offer to pay money or anything of value, or to pay money or anything of value, to a parent for the placement for adoption, for the consent to an adoption, or for cooperation in the completion of an adoption of his or her child. [¶] (b) This section does not make it unlawful to pay the maternity-connected medical or hospital and necessary living expenses of the mother preceding and during confinement as an act of charity, as long as the payment is not contingent upon placement of the child for adoption, consent to the adoption, or cooperation in the completion of the adoption."

See also Penal Code section 181, which provides: "Every person who holds, or attempts to hold, any person in involuntary servitude, or assumes, or attempts to assume, rights of ownership over any person, or who sells, or attempts to sell, any person to another, or receives money or anything of value, in consideration of placing any person in the custody, or under the power or control of another, or who buys, or attempts to buy, any person, or pays money, or delivers anything of value, to another, in consideration of having any person placed in his custody, or under his power or control, or who knowingly aids or assists in any manner any one thus offending, is punishable by imprisonment in the state prison for two, three, or four years."

[12] See Andrews and Douglass, Alternative Reproduction (1991) 65 So.Cal.L.Rev. 623, 673-678.

[13] The trial court analogized Anna's relationship with the child to that of a foster mother, whose liberty interest, if any, in her relationship with the foster child is surely more attenuated than that of the natural parents with the child. (See Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 845-847 [53 L.Ed.2d at pp. 35-37] [declining to define the constitutional contours of the foster relationship].)

[14] Civil Code section 7005 provides as follows: "(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown. [¶] (b) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived."

[15] The terms "surrogacy" and "surrogate" have been criticized as being inaccurate, particularly when applied to the type of arrangement involved in Baby M., in which the child a woman bears, intending to relinquish at birth, was formed from her own egg. (See Capron & Radin, Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood, in Surrogate Motherhood (Gostin edit. 1990) p. 72, fn. 2; Annas, Fairy Tales Surrogate Mothers Tell, in Surrogate Motherhood, supra, at p. 46 [suggesting that the phrase "surrogate mother" derives from Harlow's monkey studies, in which the responses of newborn monkeys were tested by isolating them in cages with cloth or wire "surrogate mothers."].)

Because "gestational surrogacy" is now widely used to describe the situation in which one woman agrees to be impregnated with an embryo formed from another woman's fertilized egg, I use the phrase throughout this opinion and occasionally also refer to the woman who gestates the fetus as the "surrogate."

[16] Further undesignated statutory references are to the Civil Code.

[17] In my view, the United States Supreme Court's decision in Lehr v. Robertson, supra, 463 U.S. 248, does not, despite the language I have just quoted, compel a conclusion that either the gestational mother or the genetic mother in a gestational surrogacy arrangement has, at the birth of the child, a fully vested and matured constitutional right to be a parent. Rather, I read the quoted language as indicating that the high court considers that a woman who conceives by traditional means and carries a fetus to term is a parent, and that a critical indicator of parenting status for a woman is gestation. Gestation is neither necessary nor sufficient to establish motherhood; it is, however, a factor the significance of which cannot be ignored, as the majority in effect does.

This reading of Lehr v. Robertson seems consistent with the plurality opinion in Michael H. v. Gerald D., supra, 491 U.S. 110, 123 [105 L.Ed.2d 91, 105-106], holding that a claim to fatherhood premised on biology plus "an established parental relationship" did not necessarily warrant constitutional protection. The court's precedents are, however, not entirely clear as to what will establish motherhood in a gestational surrogacy case, undoubtedly because the court has never dealt with such a case.

[18] In a footnote responding to this opinion, the majority confuses questions of custody, which I do not address, with the issue of maternal parentage, which I do address. (See maj. opn., ante, at p. 93, fn. 10.) The majority suggests that it is somehow inappropriate for a court to look to the child's best interests when deciding a question of parentage under the UPA; this is refuted by the express terms of the UPA itself, which, as noted above, requires the court to consider the child's best interests in deciding another question of parentage. (§ 7017, subd. (d)(2).)

The majority is also wrong when it suggests that the "best interests" approach for resolving the disputed issue of parentage, more than the majority's "intent" approach, raises the "specter of governmental interference" in fundamentally private matters. (Maj. opn., ante, at p. 93, fn. 10.) This court's grant of review to decide who is the natural mother of the child placed one branch of government squarely in the middle of this controversy — as did the parties' decisions to resort to the court system in the first place. Judicial resolution of family law matters, by its nature, necessarily involves some governmental interference in what would otherwise be private concerns.

On another point, the majority writes that the gestational mother could "voluntarily contract[] away any rights to the child," and that this would represent a "concession" as to the child's best interests. (Maj. opn., ante, at p. 93, fn. 10.) It is questionable whether the parentage of children is a proper subject of contract. But even assuming that a parent could contract away parental rights to a child — for instance, by selling the child into slavery — this would not logically amount to a binding "concession" that such a sale would be in the child's best interests.

[19] It is uncontested that Mark is the natural father of this child.

[1221] COUNSEL

Nancy Bunn and David Bunn for Appellant.

Leslee J. Newman for Respondent.

Richard C. Gilbert and Diane J. Marlowe for Intervener and Respondent.

Harold L. Flamme and John L. Dodd for Minor.

OPINION

SILLS, P.J. —

I. INTRODUCTION

This case squarely presents the issue of the enforceability of a "traditional" surrogacy contract — an issue not addressed in California's first two surrogacy cases, Johnson v. Calvert (1993) 5 Cal.4th 84 [19 Cal. Rptr.2d 494, 851 P.2d 776] and Adoption of Matthew B. (1991) 232 Cal. App.3d 1239 [284 Cal. Rptr. 18]. (1) By "traditional" surrogacy we mean an arrangement where a woman is impregnated with the sperm of a married man with the prior understanding that the resulting child is to be legally the child of the [1222] married man and his infertile wife.^[1] It is to be contrasted with "gestational" surrogacy, where the sperm of the married man is artificially united with the egg of his wife, and the resulting embryo implanted in another woman's womb. It is also to be contrasted with cases where a sperm donor asserts parental rights.^[2]

Traditional surrogacy is a relatively less expensive substitute for gestational surrogacy. Conception can be accomplished with a needleless syringe or similar device.^[3] The resulting offspring, however, is genetically related to the "intended" father and the "unintended" mother.

In traditional surrogacy the so-called "surrogate" mother is not only the woman who gave birth to the child, but the child's genetic mother as well. She is, without doubt, the "natural" parent of the child, as is the father. This fact is critical if the "surrogate" changes her mind before she formally consents to an adoption. In such a case, only the initial agreement itself can arguably defeat her claim to parenthood.

In the present case, there has been no formal consent to adoption, so there is only the surrogacy agreement to deprive the "surrogate" of the legal parental tie she would otherwise possess. We decline to enforce the agreement, not for the public policy reasons sometimes advanced by those who oppose surrogacy,^[4] but because enforcement of a traditional surrogacy contract by itself is incompatible with the parentage and adoption statutes already on the books.^[5]

[1223] II. FACTS AND LEGAL HISTORY

This portion of the opinion is adapted from the statement of decision of the trial court.

Robert and Cynthia Moschetta desired to start a family. Cynthia, however, is sterile. In February 1989 the Moschettas met with a surrogacy broker in Los Angeles who introduced them to Elvira Jordan. In late June and early July of the same year the Moschettas and Jordan signed an agreement which provided Jordan would be artificially inseminated with Robert Moschetta's semen so as to bear his "biological offspring." Jordan promised that Robert Moschetta could obtain sole custody and control of any child born. She also promised to sign all necessary papers to terminate her parental rights and "aid" Cynthia Moschetta in adopting the child. Robert and Cynthia agreed to pay Jordan $10,000 in "recognition" of Robert's "obligations to support [the] child and his right to provide [Jordan] with living expenses."

In November 1989 Jordan became pregnant through artificial insemination. However, by January 1990 the Moschettas were having marital problems, and in April Robert told Cynthia he wanted a divorce. Jordan learned of the Moschettas' domestic difficulties on May 27 while she was in labor. The next day she delivered baby Marissa.

Jordan began to reconsider the surrogacy agreement, and for two days she refused to allow Robert to see the baby. On May 31 she relented, and allowed Robert and Cynthia to take the child home after they told her they would stay together. However, the marriage deteriorated; and within seven months, on November 30, 1990, Robert left the family residence, taking Marissa with him. Less than a month later, on December 21, Cynthia filed a petition for legal separation (No. D324349), and a petition to establish custody of Marissa (No. 645368); less than a month after that, on January 11, 1991, she filed a petition to establish parental relationship, alleging she was the "de facto mother" of Marissa (No. AD 59584). In February Jordan sought to join the dissolution action (granted in March), while Robert filed responsive pleadings requesting a judgment of dissolution rather than legal separation.

The actions were consolidated and ordered trifurcated for trial, which commenced April 1991. The first phase determined the parental rights of Cynthia Moschetta and Elvira Jordan. The second phase determined custody and visitation rights. The third phase was the marital dissolution case apart [1224] from the legal and physical custody of Marissa. At trial no party asked the court to enforce the surrogacy contract; all agreed it was unenforceable. At the time they did not have the benefit of Johnson v. Calvert, supra, 5 Cal.4th at page 95, which held that gestational surrogacy contracts do not, on their face, offend public policy. The judgment, filed in December 1992, provided Robert Moschetta and Elvira Jordan were the legal parents of Marissa and should each have joint legal and physical custody of the child.

Robert Moschetta has appealed from the judgment, challenging the determination that Elvira Jordan is the legal mother of Marissa. He also contends the trial court abused its discretion in awarding the parties joint legal and physical custody. In contrast to his concession at the trial level, and in the wake of Johnson v. Calvert, Robert Moschetta now contends that the surrogacy contract should be enforced. He also asserts his erstwhile wife, Cynthia Moschetta, is the legal mother of the child by virtue of the Uniform Parentage Act (Fam. Code, § 7600 et seq.).^[6] Cynthia Moschetta did not initiate adoption proceedings and has filed a brief in this court supporting the judgment.

III. DISCUSSION

A. Operation of the Uniform Parentage Act

(2a) We examine Robert's Uniform Parentage Act position first. Robert presents two arguments concerning the operation of the Act. The first argument is: Under the Act, Cynthia Moschetta and Elvira Jordan are equally the mother of Marissa; but, under the Act, a child can have only one mother. Johnson v. Calvert solved this conundrum by breaking the tie in favor of the party who was originally intended to be the mother. Here, Cynthia was clearly intended to be the mother and therefore the "tie" should be broken in her "favor."^[7]

The flaw in the argument is that Cynthia is not "equally" the mother of Marissa. In fact, she is not Marissa's mother at all. There is no "tie" to break.

To show that both Cynthia Moschetta and Elvira Jordan have equal claims to motherhood under the Act, Robert relies on two portions of the Uniform Parentage Act which establish certain legal presumptions concerning fatherhood. The first presumption is the traditional rule of law that the child of a [1225] wife, cohabiting with her husband, is conclusively presumed to be a child of the marriage unless the husband is impotent or sterile. The rule is codified in Family Code section 7540, formerly Evidence Code section 621, subdivision (a): "Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." His argument asks us to treat women as interchangeable with men for the purposes of this presumption. According to Robert, applying this rule in a "gender-neutral" manner (i.e., simply reading "husband" for "wife" and "wife" for "husband") would mean that the child of a husband (and there is no dispute that Marissa is Robert's child), cohabiting with his wife, would also be conclusively presumed the child of the marriage.^[8]

The argument fails because the presumption is not absolutely conclusive, and may be defeated by blood tests which show that the husband is not the genetic father of the child. The key phrase in California's statutory codification of the rule is, "Except as provided in Section 7541." Subdivision (a) of Family Code section 7541 provides that if the conclusions of "all the experts, as disclosed by the evidence based on blood tests," is that "the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." (Italics added.) Even though Family Code section 7541, subdivision (a) is couched in terms of what "experts" say about blood tests rather than what those tests themselves actually reveal, the intent of the statute is undeniable: Genetic parenthood established by blood tests trumps a presumption based on the cohabitation of a married couple. The exceptions to this "blood test override" (essentially that the blood tests must be done within two years from the date of birth) do not apply here.^[9] The trial court ordered blood tests on its own motion and established that Elvira Jordan is Marissa's genetic mother.

[1226] The argument also fails because it is undisputed Cynthia Moschetta is sterile. Even if we indulge the notion of gender interchangeability in the presumption, by its terms Family Code section 7540 only applies where the other spouse is not sterile.

Robert also presents a second argument based on an alternative presumption in the Act: A man is also presumed to be the natural father of a child if he "receives the child into his home and openly holds out the child as his natural child." (Fam. Code, § 7611, subd. (d).) Robert argues that because he and Cynthia took Marissa home from the hospital and Cynthia afterwards held the child out as her own, Cynthia should be presumed to be the natural mother because she "received" the child into her home. Therefore, just as Robert's "receiving" Marissa into his home would establish that he was the presumed father,^[10] Cynthia's "receiving" Marissa into her home made Cynthia the child's presumed mother.

On the simplest level, the argument is unpersuasive because Cynthia never held Marissa out as her "natural" child. There never was any doubt that Marissa has no biological, natural or genetic connection with Cynthia.

A more fundamental reason the argument fails is that the statute simply does not have any reasonable application to surrogacy cases. The presumption is rooted in the old law of illegitimacy (see In re Richard M. (1975) 14 Cal.3d 783, 793 [122 Cal. Rptr. 531, 537 P.2d 363] ["receiving" element of the statute has been traditionally construed liberally with a view toward establishing a child's legitimacy]), and even then was to be applied in light of the "particular circumstances of the case." (Id. at p. 794.) The presumption allowed a child who was otherwise illegitimate (because he or she was born to a mother not married to the natural father) to attain the status of a legitimate child if the father acknowledged the child as his own and "received" the child into his household. While the legal status of illegitimacy has been abolished, the presumption has been retained because it continues to serve the function of settling questions of biological parenthood. In essence, it removes the doubt as to the identity of a child's biological father.

Again, assuming for the sake of argument that the statutory presumption can be made gender interchangeable, the statutory presumption is inapplicable because of the absence of doubt as to the identity of the natural mother. There is no question of biological parenthood to settle. Unlike the context of illegitimacy from which the presumption arose, in surrogacy there is no need to resort to presumptions. All parties know who gave birth and who is genetically related to whom.

[1227] B. The Enforceability of the Contract

1. Should We Even Consider the Issue?

Robert Moschetta's final argument is that the surrogacy contract should be enforced so as to preclude Elvira Jordan from being the legal mother of Marissa. Preliminarily, however, we must consider whether Robert Moschetta can make this argument on appeal, given his decision at trial not to request enforcement of the surrogacy contract and his concession (albeit without the benefit of the decision in Johnson v. Calvert) that the contract was unenforceable because it "was against social policy."^[11]

(3) The standard rule, of course, is that a party may not raise a new contention on appeal. There is an exception, however, in cases where a new point of law is decided after the trial (see Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 3 [209 Cal. Rptr. 682, 693 P.2d 261] ["It is well settled that a court will consider on appeal a new point of law decided while the appeal is pending"])^[12] or where the new theory "presents a question of law to be applied to undisputed facts in the record" (Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App.4th 10, 15 [1 Cal. Rptr.2d 805]).

These exceptions would easily be sufficient in the present case, were it not for the express waiver of the enforcement theory by Robert Moschetta at trial. One of the reasons parties are not normally allowed to raise new issues on appeal is that it is unfair to their opponents who did not have the opportunity to attack that theory factually or legally in the trial court, and to the trial court itself, which may be required to retry issues that might have been handled more efficiently the first time around. (See Ernst v. Searle (1933) 218 Cal. 233, 240-241 [22 P.2d 715].) In the case of the enforceability of a contract, these concerns are particularly potent because there are a number of fact-based defenses, including lack of capacity, actual fraud, and mistake of fact, which might have been developed in the trial court had the opposing party been given fair warning.

Ultimately however — and within the bounds of due process — application of the rule is discretionary with the reviewing court. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 322. p. 332.) Here, we exercise our discretion to consider the new argument because surrogacy — and in particular the enforcement of contracts for traditional surrogacy — is a matter of intense [1228] public and legal concern,^[13] and no California case has yet squarely considered the enforceability of such contracts. This vacuum makes it impossible for infertile couples and potential surrogate mothers to have a clear idea of their rights should they end up in court, like the parties in this case.

However, to avoid prejudice to the other parties, we have considered Robert Moschetta's contention with the understanding that should he prevail on the contract issue in the abstract, the most he could obtain on the parentage issue is a remand for further proceedings to allow the other parties to develop any factual defenses to the contract that were not otherwise presented to the trial court the first time around.

2. The Merits of Enforceability

(2b) As an intermediate appellate court we naturally look for guidance to the only surrogacy decision of our state Supreme Court.^[14] To determine the merits of Robert Moschetta's enforceability argument, a detailed review of our Supreme Court's decision in Johnson v. Calvert, supra, 5 Cal.4th 84 is necessary.^[15] Such a review demonstrates that enforcement of the traditional surrogacy contract here would be fundamentally incompatible with the rationale and analysis employed in Johnson v. Calvert.

After a brief introduction centering on the problem of determining the mother in the context of gestational surrogacy (5 Cal.4th at p. 87) and a statement of facts, Johnson v. Calvert begins its discussion with an exposition of the Act (id. at pp. 88-89). Of particular interest for our purposes is the court's recognition that while the Act was "not motivated by the need to resolve surrogacy disputes," the Act nevertheless "facially applies to any [1229] parentage determination" and "offers a mechanism to resolve" the pending surrogacy dispute. (Id. at p. 89.) Hence the court decides to "analyze the parties' contentions within the Act's framework." (Ibid.)

The opinion then analyzes "those few provisions of the Act directly addressing the issue of maternity" (see 5 Cal.4th at p. 90), including the obvious way of showing a woman gave birth to a child. In this discussion the court concludes that certain presumptions concerning paternity, such as the previously discussed receiving of a child into a man's home, do not apply. Such presumptions "describe situations in which substantial evidence points to a particular man as the natural father of the child" (id. at p. 91, italics added), while in the case before it, the "factual basis of each woman's claim is obvious." Accordingly, "... there is no need to resort to an evidentiary presumption to ascertain the identity of the natural mother." (Ibid.)

The opinion next concludes that both blood tests and the fact of giving birth can establish maternity under the Act, which it juxtaposes against the thought that "California law recognizes only one natural mother." (5 Cal.4th at p. 92.) After showing there is no preference for either method (see id. at pp. 92-93 and 92, fn. 9), i.e., that both the genetic mother and the birth mother are in a dead heat under the Act, the court comes to the punch-line: The tie is to be broken by reference to the "parties' intentions as manifested in the surrogacy agreement." (Id. at p. 93.) Looking to the parties' intentions means the child must be awarded to the intended, i.e., genetic, mother. The court then notes that the tie-breaker is used "when the two means [of showing maternity under the Act] do not coincide in one woman." (Id. at p. 93, italics added.)

The next portion of the opinion provides support for the use of intent "as manifested in the surrogacy agreement" by reference to a number of scholarly works on surrogacy, and ends with the specter that a different result would unjustly impose parenthood on a surrogate birth mother where the intending genetic mother declined to accept the child. (See 5 Cal.4th at pp. 93-95.)

The court next bolsters its use of intent "as expressed" in the surrogacy contract by showing why the contract "is not, on its face, inconsistent with public policy." (5 Cal.4th at p. 95.) After a quick digression showing that no conclusions may be drawn from either the recent passage of a surrogacy bill by the Legislature or the Governor's veto of it, the opinion tackles a series of social policy arguments made by the birth mother in the case. (See generally, id. at pp. 95-97.)

At this juncture the court first states that "gestational" surrogacy differs from adoption in "crucial respects," and therefore "is not subject to the [1230] adoption statutes." (5 Cal.4th at p. 96.) Among the reasons given is that the birth mother is not the genetic mother, and the circumstances of the child's conception involved in vitro fertilization and "related medical procedures." (Ibid.) The court then bats down one legal argument (involuntary servitude) and several social policy arguments (exploitation, dehumanization and inability to give true consent), and characterizes the idea that no surrogate mother can truly consent to a surrogacy contract as patronizing, if not outright discriminatory against women. (Id. at p. 97.)^[16]

The balance of the majority opinion then disposes of the problem of whether the result in the case deprived the losing party of any federal rights and affirms the judgment of the Court of Appeal awarding parenthood to the genetic mother.

Significantly, both Justice Arabian's concurring and Justice Kennard's dissenting opinions agree with the majority opinion's basic structure of first concluding the genetic mother and the birth mother were "tied" under the Act and then breaking the tie. (See 5 Cal.4th at p. 101 (conc. opn. of Arabian, J.) and p. 103 (dis. opn. of Kennard, J.).) Justice Arabian concurred because he sees no reason to go beyond the tie-breaker to address the question of whether surrogacy contracts are inconsistent with public policy. Justice Kennard dissents because she advocates a different tie-breaker, namely the best interest of the child.

We have gone to some length in discussing Johnson v. Calvert, supra, 5 Cal.4th to demonstrate beyond cavil two important points. First, the Johnson court never reached the issue of whether traditional surrogacy contracts are enforceable in their own right. The most that can be safely extracted from the opinion is that gestational surrogacy contracts do not necessarily offend public policy. Indeed, the court did not actually hold that the gestational surrogacy contract at issue in Johnson v. Calvert was enforceable as such. Rather, the court stated that such a contract is a proper basis on which to ascertain the intent of the parties because it does not offend public policy "on its face." (See 5 Cal.4th at p. 95.) In Johnson v. Calvert the function of the surrogacy contract was to serve as a vessel in which the parties could manifest or express their intention. (Id. at p. 93.) The gestational surrogacy contract was never held to be enforceable per se.

The other point — and it is one on which all the members of the Johnson v. Calvert court appeared to agree — is that cases of gestational surrogacy are [1231] properly analyzed in terms of parentage as it is determined under the Act. Hence there is a need for some tie-breaker because genetic-but-not-birth mothers and birth-but-not-genetic mothers have equal claims to maternity under the terms of the Act.

Robert Moschetta's core argument is that in determining that gestational surrogacy contracts are not inconsistent with public policy, the court in Johnson v. Calvert was necessarily saying traditional surrogacy contracts must be enforced according to their terms. As we have just shown, this is not true. The Supreme Court never said that gestational surrogacy contracts were enforceable per se, much less traditional surrogacy contracts.

Moreover, the framework employed by Johnson v. Calvert of first determining parentage under the Act is dispositive of the case before us. In Johnson v. Calvert our Supreme Court first ascertained parentage under the Act; only when the operation of the Act yielded an ambiguous result did the court resolve the matter by intent as expressed in the agreement. In the present case, by contrast, parentage is easily resolved in Elvira Jordan under the terms of the Act. Here, apropos the language in Johnson v. Calvert, supra, 5 Cal.4th on page 93 of the opinion, the two usual means of showing maternity — genetics and birth — coincide in one woman.

Having established that Elvira Jordan is the mother under the terms of the Act, the question next arises whether the surrogacy contract can serve as an adoption agreement. We think not; there is no basis on which to so hold. Under Family Code section 8814, an adoption statute, "birth parents" must specifically consent to an adoption in the presence of a social worker. There was no such consent here.

We thus decline to enforce the traditional surrogacy contract in this case because to do so would mean we would have to ignore both the analysis used by our Supreme Court in Johnson v. Calvert and the adoption statute that requires a formal consent to a child's adoption by his or her birth mother. The judgment declaring Elvira Jordan the legal mother of Marissa must therefore be affirmed.

C. Joint Custody

(4) The trial judge appointed a clinical psychologist and a marriage, family and child counselor as independent experts to recommend which custody arrangements would be in Marissa's best interests. (See Evid. Code, § 730 [court may appoint experts to investigate and report back on the matter as to which expert evidence is or may be required].)

[1232] In their joint report both experts recommended that Marissa's primary residence continue to be with her father. They noted that Robert showed "an acute sensitivity for his daughter's developmental needs" and Marissa had "continued to do well and thrive in the care of her father." Robert showed "no indications of any major deficits in his parenting skills."

By contrast, the experts thought Elvira Jordan had "difficulty in setting structure and limits as her children grow." Her two older children had dropped out of school and her eldest had "problems related to drugs." Her "attitudes, competitiveness, lack of self-awareness, and possessiveness" limited the type of custody plan that could be developed. The psychologist and the counselor noted Elvira Jordan's ability to benefit from professional help was "guarded."

Despite the recommendation of the psychologist and counselor, the trial court chose to award joint legal and physical custody to both Robert Moschetta and Elvira Jordan. Robert got physical custody on weekends and in the evenings, Elvira Jordan on weekdays.

The trial judge wrote a thorough and lucid statement of decision, taking a variety of factors into account in deciding to split custody down the middle. These factors included the status quo (which favored Robert Moschetta), respective parenting qualities (the judge wrote that Robert had an apparent "lack of sensitivity to the needs of the child as separate from his own" whereas Elvira Jordan's attitude was one of "giving" the "gift of life" to an infertile couple) and the importance of a child's having contact with both parents (the judge noted that Marissa would "benefit from regular contact with her mother in her mother's home"). If this were a run-of-the-mill child custody case, we would be hard put to find any abuse of discretion in the decision given the thoroughness of the trial judge's statement of decision.^[17]

But this is not a run-of-the-mill custody case; this is a case of first impression in California. We must reverse because the trial judge explicitly took into account two factors that were inherent in the very uniqueness of this litigation, and which should not have been considered.

Specifically, the trial judge considered both (1) Robert's legal and personal position that Elvira Jordan was not Marissa's true mother and (2) the [1233] circumstances surrounding the very surrogacy controversy itself in which the parties were embroiled. The trial judge wrote: "[A]lmost a year of Marissa's precious development had been eaten up in what the Court considered to be unnecessarily and aggressive litigation by Robert over Elvira's maternity." Elsewhere the trial judge stated that she chose joint custody because, among other things, of Robert's "predisposition about Elvira." The court contrasted Elvira Jordan's "intent" to "give the gift of life to an infertile couple," with Robert's "mindset" and "manipulative" behavior in "knowingly marr[ying] an infertile woman" and his tactics in attempting to obtain custody of his daughter in the wake of the breakup of his marriage and Elvira Jordan's reluctance to release Marissa after birth. Especially "problematic" was Robert's position at trial that he could serve as sole parent to Marissa and his reluctance to acknowledge Elvira Jordan as the girl's mother.

Taking these matters into consideration was error. In doing so, the court was, in effect, penalizing Robert for taking a position on a legal question of first impression.^[18] The court assumed that Elvira Jordan's claim to motherhood had already been established, and evaluated Robert's attitude toward and interactions with Jordan as if he had no right to question her parental claims. While Robert does not prevail in today's decision on that point, his position can hardly be described as frivolous. After all, Marissa would never have been conceived if Elvira Jordan had not agreed, in advance of the conception, to relinquish her parental claims.^[19]

As noted above, the question of surrogacy is a question of intense public interest. Whether a surrogate mother should have the same rights as other natural parents (or should be held to her initial agreement) is a topic on the very frontier of the law. Under such circumstances Robert was well within his rights to advocate the position that he was Marissa's only legal parent, and to take a less than welcoming view of Elvira Jordan's claim.

Additionally, the fact that Robert married an infertile woman and agreed at the hospital to try to make his marriage work in order to be able to take his daughter home from the hospital, while "manipulative" according to the trial [1234] court, is absolutely irrelevant to the question of Marissa's best interests in terms of which parent should have primary custody.

It is common knowledge among family law practitioners that the quickest way for a parent to lose primary physical custody is for that parent to obstruct the visitation rights of the other parent. There is more than a bit of this idea in the trial court's statement of decision. The statement of decision treats Robert Moschetta as a recalcitrant divorced parent who obstructs the legitimate visitation rights of a former spouse.

We cannot say that the outcome would have been the same had the trial court not taken Robert's position toward Elvira Jordan and his tactics at the time of birth into account. We therefore reverse the judgment so far as it awards joint physical and legal custody of Marissa to both Robert Moschetta and Elvira Jordan, and remand the matter to the trial court for reevaluation as to whether Robert should be awarded primary physical custody. This reevaluation must be without regard to Robert's "predisposition" toward Elvira Jordan, the fact that he married an infertile woman, or his tactics and positions in this case up to now. Of course, now that Elvira Jordan's parental claim has been established, Robert's present willingness to allow Jordan visitation, should he be awarded primary physical custody, does become relevant.

Our decision also renders Robert's contention that the trial court should have reconsidered its decision when the involvement of Jordan's eldest son in a drug-related murder came to light moot.^[20] The remand will allow the trial court to evaluate custody in light of currently relevant factors, including any threat that Jordan's eldest son might pose by virtue of his involvement with drugs or gangs.^[21]

CONCLUSION

While we affirm the judgment so far as it vests parental rights in the surrogate mother, we are not unmindful of the practical effect of our [1235] decision in light of Johnson v. Calvert. Infertile couples who can afford the high-tech solution of in vitro fertilization and embryo implantation in another woman's womb can be reasonably assured of being judged the legal parents of the child, even if the surrogate reneges on her agreement. Couples who cannot afford in vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law. For them and the child, biology is destiny.

The result is disquieting. Much has been written in the surrogacy area of the pain visited on the birth mother who contemplates giving up her child. Not so much appears to have been written about the disruption to the intended parents, who have — to put the matter in classic estoppel language — relied to their detriment in deciding to bring a child into the world. Let us be blunt here: Marissa would never have been born if Robert and Cynthia Moschetta had known Elvira Jordan would change her mind.^[22] On this point Robert Moschetta is certainly correct that surrogacy is fundamentally different than adoption, which contemplates a child already conceived.

On the other hand, there is also no doubt that enforcement of a surrogacy contract prior to a child's birth presents a host of thorny legal problems, particularly if such contracts were specifically enforced.^[23] Any result is disquieting.

Once again the need for legislative guidance regarding the difficult problems arising from surrogacy arrangements is apparent.^[24] The alternative is to let the matter go by default to the operation of the Uniform Parentage Act, which, as our Supreme Court noted in Johnson v. Calvert, was not enacted with surrogacy in mind.

The law as it now stands compels that the judgment be affirmed as it establishes Robert Moschetta and Elvira Jordan as Marissa's father and mother. The judgment is reversed so far as it awards joint physical custody to both parents. The matter of physical custody is remanded for reevaluation [1236] in light of the views expressed in this opinion. Each party is to bear its own costs on appeal.

Crosby, J., and Rylaarsdam, J.,^[25] concurred.

A petition for a rehearing was denied June 29, 1994, and appellant's petition for review by the Supreme Court was denied October 13, 1994.

[1] Strictly speaking it is not absolutely required that the man be married or that the wife be infertile.

[2] E.g., Jhordan C. v. Mary K. (1986) 179 Cal. App.3d 386 [224 Cal. Rptr. 530].

[3] See Gallagher, Enemies of Eros (1989) at page 168 ("The first recorded case of artificial insemination took place in 1790. The procedure is so simple women can easily perform it themselves. All you need is a mechanical device to suck up and then expel liquid.... A turkey baster will ... do.") (See also Wikler, Society's Response to the New Reproductive Technologies: the Feminist Perspectives (1986) 59 So.Cal.L.Rev. 1043, 1044, 1056; cf. Jhordan C. v. Mary K., supra, 179 Cal. App.3d at p. 390 [defendant "apparently performed the insemination by herself" or with help of a friend].)

[4] Justice Kennard summarizes, without editorial comment, a number of arguments against gestational surrogacy in her dissent in Johnson v. Calvert, supra, 5 Cal.4th at pages 107-110. These arguments, the core idea of which is a hostility to transactions between consenting adults which affect the legal status of parenthood, would appear to have equal force to traditional surrogacy. The leading judicial example of such hostility is In re Baby M. (1988) 109 N.J. 396 [537 A.2d 1227, 77 A.L.R.4th 1].

[5] By enforcement of the agreement, we mean the recognition of the parental rights sought to be established by the agreement. This case, like Johnson v. Calvert, involves a situation where the so-called surrogate mother changed her mind and sought parental rights and responsibilities which the surrogacy agreement contemplated she would not have. We do not reach the question of whether or how a traditional surrogacy agreement should be analyzed when all parties disclaim responsibility for the child (say, if the father died while the surrogate was still pregnant and the father's wife then wanted out of the agreement).

[6] All references to the "Act" are to the Uniform Parentage Act.

[7] We put quotation marks around "favor" because it is unclear whether it would really favor Cynthia Moschetta at all. In any event we do not reach the issue of liability for support when parties to a surrogacy agreement attempt to disclaim the parental responsibilities the agreement contemplates. (See fn. 5, ante.)

[8] Robert's premise is suspect. The Supreme Court's recent decision in In re Zacharia D. (1993) 6 Cal.4th 435 [24 Cal. Rptr.2d 751, 862 P.2d 751] is implicit authority for the idea that, in cases directly involving human reproduction, individuals of different sexes may be distinguished on the basis of different reproductive roles. Zacharia D. involved a natural father who did not "achieve" the "status" of "presumed" fatherhood (see id. at p. 449, fn. 15) of a child in the juvenile dependency system because he did not come forward early enough in the dependency process. (See id. at p. 451.) The court held he was not entitled to reunification services. The natural mother, to whom the child (a drug baby) was released after a brief period in protective custody following his birth, never faced the need to "achieve" the status of "presumed" motherhood.

[9] See Family Code section 7541, subdivisions (b) and (c). Subdivision (e) sets forth three other exceptions: the case reached final judgment of paternity on or before September 30, 1980, the wife, with the consent of her husband, was artificially inseminated with semen donated by a man not her husband (see Fam. Code, § 7613), and the wife, with the consent of her husband, "conceived by means of a surgical procedure." None of these other exceptions has any relevance to the case before us.

[10] The topic of presumed fatherhood is discussed in detail in In re Zacharia D., supra, 6 Cal.4th 435.

[11] The phrase is taken from a recitation in Robert Moschetta's own proposed statement of decision.

[12] Witkin describes the idea this way: "A court may refuse to follow the doctrine [of not hearing new arguments on appeal] where, after trial, there is a change in judicially declared law which validates a theory that would have been rejected if presented under the case law as it existed at the time of trial." (9 Witkin, Cal. Procedure (3d ed. 1985), Appeal, § 322, p. 333.)

[13] Surrogacy is one of those subjects where the law review articles easily outnumber the published decisions.

[14] Counsel for Elvira Jordan contended at the first oral argument that this court should ignore Johnson v. Calvert, which counsel compared to Dred Scott v. Sanford (1857) 60 U.S. (19 How.) 393 [15 L.Ed. 691]. Obviously the comparison was not meant as a compliment. Dred Scott has the odious distinction of holding that slaves were still property, subject to return to their owners, even if they managed to find their way to nonslave states. The decision is thought by some to have helped precipitate the Civil War. The comparison with Dred Scott is not only inapt, but borders on the insulting. It goes without saying, of course, that we decline counsel's invitation to stage an insurrection against the rule of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937] ["The decisions of this court are binding upon and must be followed by all the state courts of California."].) (A second oral argument was necessitated by the death of Justice Henry T. Moore, Jr.)

[15] The other surrogacy case, Adoption of Matthew B., supra, 232 Cal. App.3d 1239, is essentially a procedure case, dealing with a traditional surrogate mother's attempt to withdraw her consent to adoption. The court took pains to demonstrate the result would be the same regardless of whether the surrogate contract was legal. (Id. at p. 1259.)

[16] The exact language is: "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."

[17] Which is not to say that it would be an automatic affirmance. One issue in particular is troubling: Robert contends that Elvira Jordan got favorable treatment because she was a woman, and that a man in her circumstances (including her record with her other children and past welfare fraud) would never have received joint physical custody. Because the question of physical custody must be remanded in any event, we do not reach this issue. It is enough to reiterate the rule that courts must eschew "preconceptions about the parties because of their gender" in the process of decisionmaking. (See In re Marriage of Iverson (1992) 11 Cal. App.4th 1495, 1499 [15 Cal. Rptr.2d 70].) (Cf. fn. 19, post.)

[18] We do not think that just because Robert had concluded by the time of trial — and before Johnson v. Calvert was decided — that the surrogacy agreement was unenforceable, that he could not in good faith have taken the position that Elvira Jordan should not be the legal mother of his child.

[19] The idea that Robert's position would mean that Marissa would have only one parent clearly disturbed the trial court. The fact is, however, that California's artificial insemination laws allow a single woman to have a child where there is no legal father. (See Fam. Code, § 7613, subd. (b) [donor of semen provided to licensed physician and surgeon for use in artificial insemination of a woman — presumably even an unmarried one — is treated in law as if he were not the natural father of the child].)

[20] After trial, Robert Moschetta attempted to reopen the custody issue by introducing evidence that Jordan's elder son Ricardo had been involved in a drug-related murder, was wounded in the course of a robbery, and had been sent to prison. The court refused to modify its custody order in light of this revelation.

[21] We reject Robert's contention that joint physical custody is per se inappropriate for surrogacy deals gone awry. The logic of holding that Elvira Jordan is the legal as well as natural mother of Marissa compels the conclusion that joint physical custody may be appropriate if it is indeed in the child's best interest. (Cf. Fam. Code, § 3082.)

[22] Of course, Jordan's actions were precipitated by the failure of the Moschettas' marriage, a contingency unforeseen in the parties' agreement.

[23] What if a surrogate mother took drugs or alcohol during her pregnancy in violation of her contract? Or wanted an abortion? Could the contract be enforced by court order and subsequent contempt? Would there be a "surrogate mother's tank" in the local jail?

[24] See Note, Selling the Womb: Can the Feminist Critique of Surrogacy Be Answered? (1992) 68 Ind. L.J. 205, 210 (noting tendency of courts to request legislative action in surrogacy area).

[25] Judge of the Orange Superior Court sitting under assignment by the Chairperson of the Judicial Council.

[1411] COUNSEL

Van Deusen, Youmans & Walmsley and Robert R. Walmsley for Appellant.

Taylor Flynn and Mark Rosenbaum as Amici Curiae on behalf of Appellant and Minor.

Schwamb & Stabile, Thomas P. Stabile and Mark A. Hewitt for Respondent.

Jeffrey W. Doeringer, under appointment by the Court of Appeal, for Minor.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White and Mary A. Roth, Deputy Attorneys General, and Leslie Ellen Shear as Amici Curiae on behalf of Minor.

[1412] OPINION

SILLS, P.J. —

INTRODUCTION

Jaycee was born because Luanne and John Buzzanca agreed to have an embryo genetically unrelated to either of them implanted in a woman — a surrogate — who would carry and give birth to the child for them. After the fertilization, implantation and pregnancy, Luanne and John split up, and the question of who are Jaycee's lawful parents came before the trial court.

Luanne claimed that she and her erstwhile husband were the lawful parents, but John disclaimed any responsibility, financial or otherwise. The woman who gave birth also appeared in the case to make it clear that she made no claim to the child.

The trial court then reached an extraordinary conclusion: Jaycee had no lawful parents. First, the woman who gave birth to Jaycee was not the mother; the court had — astonishingly — already accepted a stipulation that neither she nor her husband were the "biological" parents. Second, Luanne was not the mother. According to the trial court, she could not be the mother because she had neither contributed the egg nor given birth. And John could not be the father, because, not having contributed the sperm, he had no biological relationship with the child.

We disagree. Let us get right to the point: Jaycee never would have been born had not Luanne and John both agreed to have a fertilized egg implanted in a surrogate.

The trial judge erred because he assumed that legal motherhood, under the relevant California statutes, could only be established in one of two ways, either by giving birth or by contributing an egg. He failed to consider the substantial and well-settled body of law holding that there are times when fatherhood can be established by conduct apart from giving birth or being genetically related to a child. The typical example is when an infertile husband consents to allowing his wife to be artificially inseminated. As our Supreme Court noted in such a situation over 30 years ago, the husband is the "lawful father" because he consented to the procreation of the child. (See People v. Sorensen (1968) 68 Cal.2d 280, 284-286 [66 Cal. Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093].)

The same rule which makes a husband the lawful father of a child born because of his consent to artificial insemination should be applied here — by [1413] the same parity of reasoning that guided our Supreme Court in the first surrogacy case, Johnson v. Calvert (1993) 5 Cal.4th 84 [19 Cal. Rptr.2d 494, 851 P.2d 776] — to both husband and wife. Just as a husband is deemed to be the lawful father of a child unrelated to him when his wife gives birth after artificial insemination, so should a husband and wife be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf. In each instance, a child is procreated because a medical procedure was initiated and consented to by intended parents. The only difference is that in this case — unlike artificial insemination — there is no reason to distinguish between husband and wife. We therefore must reverse the trial court's judgment and direct that a new judgment be entered, declaring that both Luanne and John are the lawful parents of Jaycee.^[1]

CASE HISTORY

John filed his petition for dissolution of marriage on March 30, 1995, alleging there were no children of the marriage. Luanne filed her response on April 20, alleging that the parties were expecting a child by way of surrogate contract. Jaycee was born six days later. In September 1996 Luanne filed a separate petition to establish herself as Jaycee's mother. Her action was consolidated into the dissolution case. In February 1997, the court accepted a stipulation that the woman who agreed to carry the child, and her husband, were not the "biological parents" of the child.^[2] At a hearing held in March, based entirely on oral argument and offers of proof, the trial court determined that Luanne was not the lawful mother of the child and therefore John could not be the lawful father or owe any support.

The trial judge said: "So I think what evidence there is, is stipulated to. And I don't think there would be any more. One, there's no genetic tie between Luanne and the child. Two, she is not the gestational mother. Three, [1414] she has not adopted the child. That, folks, to me, respectfully, is clear and convincing evidence that she's not the legal mother."

After another hearing on May 7, regarding attorney fees, a judgment on reserved issues in the dissolution was filed, terminating John's obligation to pay child support, declaring that Luanne was not the legal mother of Jaycee, and declining "to apply any estoppel proposition to the issue of John's responsibility for child support." Luanne then filed a petition for a writ of supersedeas to stay the judgment; she also filed an appeal from it. This court then granted a stay which had the effect of keeping the support order alive for Jaycee. We also consolidated the writ proceeding with the appeal.

In his respondent's brief in this appeal, John tries to intimate — though he stops short of actually saying it — that Jaycee was not born as a result of a surrogacy agreement with his ex-wife. He points to the fact that the actual written surrogacy agreement was signed on August 25, 1994, but the implantation took place a little less than two weeks before, on August 13, 1994. The brief states: "At the time that the implantation took place, no surrogacy contract had been executed by the parties to this action."

Concerned with the implication made in John's respondent's brief, members of this court questioned John's attorney at oral argument about it. It turned out that the intimation in John's brief was a red herring, based merely on the fact that John did not sign a written contract until after implantation. Jaycee was nonetheless born as a result of a surrogacy agreement on the part of both Luanne and John; it was just that the agreement was an oral one prior to implantation. The written surrogacy agreement, John's attorney acknowledged in open court, was the written memorialization of that oral contract.

Members of this panel also pressed John's attorney to state whatever factually based defenses John might have offered if the case had actually been tried. John's attorney had not specifically stated such defenses at the hearing in March 1996; he had only vaguely indicated that "the facts as testified to would be somewhat different than" those which the trial court had "assumed."

Again, there was less than was intimated. John's signature on the written surrogacy agreement was not forged, or anything of the sort. His one trump card, finessed out only after repeated questioning and the importuning of one of our panel to articulate his "best facts," was this: John would offer testimony to the effect that Luanne told him that she would assume all responsibility for the care of any child born. Luanne alone would assume "the burdens of childrearing."

[1415] Therefore, even though there was no actual trial in front of the trial court on the matter, this appellate court will assume arguendo that if there had been a trial the judge would have believed John's evidence on the point and concluded that Luanne had indeed promised not to hold John responsible for the child contemplated by their oral surrogacy agreement.

DISCUSSION

The Statute Governing Artificial Insemination Which Makes a Husband the Lawful Father of a Child Unrelated to Him Applies to Both Intended Parents in This Case

(1) Perhaps recognizing the inherent lack of appeal for any result which makes Jaycee a legal orphan, John now contends that the surrogate is Jaycee's legal mother; and further, by virtue of that fact, the surrogate's husband is the legal father. His reasoning goes like this: Under the Uniform Parentage Act (the Act), and particularly as set forth in section 7610 of Family Code, there are only two ways by which a woman can establish legal motherhood, i.e., giving birth or contributing genetically.^[3] Because the genetic contributors are not known to the court, the only candidate left is the surrogate who must therefore be deemed the lawful mother. And, as John's counsel commented at oral argument, if the surrogate and her husband cannot support Jaycee, the burden should fall on the taxpayers.

The law doesn't say what John says it says. It doesn't say: "The legal relationship between mother and child shall be established only by either proof of her giving birth or by genetics." The statute says "may," not "shall," and "under this part," not "by genetics." Here is the complete text of Family Code section 7610: "The parent and child relationship may be established as follows: [¶] (a) Between a child and the natural mother, it may be established by proof of her having given birth to the child, or under this part. [¶] (b) Between a child and the natural father, it may be established under this part. [¶] (c) Between a child and an adoptive parent, it may be established by proof of adoption."

The statute thus contains no direct reference to genetics (i.e., blood tests) at all. The Johnson decision teaches us that genetics is simply subsumed in the words "under this part." In that case, the court held that genetic consanguinity was equally "acceptable" as "proof of maternity" as evidence of giving birth. (Johnson v. Calvert, supra, 5 Cal.4th at p. 93.)

It is important to realize, however, that in construing the words "under this part" to include genetic testing, the high court in Johnson relied on several [1416] statutes in the Evidence Code (Evid. Code, former §§ 892, 895, & 895.5) all of which, by their terms, only applied to paternity. (See Johnson v. Calvert, supra, 5 Cal.4th at pp. 90-92.)^[4] It was only by a "parity of reasoning" that our high court concluded those statutes which, on their face applied only to men, were also "dispositive of the question of maternity." (5 Cal.4th at p. 92.)

The point bears reiterating: It was only by a parity of reasoning from statutes which, on their face, referred only to paternity that the court in Johnson v. Calvert reached the result it did on the question of maternity. Had the Johnson court reasoned as John now urges us to reason — by narrowly confining the means under the Act by which a woman could establish that she was the lawful mother of a child to texts which on their face applied only to motherhood (as distinct from fatherhood) — the court would have reached the opposite result.^[5]

[1417] In addition to blood tests there are several other ways the Act allows paternity to be established. Those ways are not necessarily related at all to any biological tie. Thus, under the Act, paternity may be established by:

— marrying, remaining married to, or attempting to marry the child's mother when she gives birth (see Fam. Code, § 7611, subds. (a) & (b));

— marrying the child's mother after the child's birth and either consenting to being named as the father on the birth certificate (Fam. Code, § 7611, subd. (c)(1)) or making a written promise to support the child (see Fam. Code, § 7611, subd. (c)(2)).

A man may also be deemed a father under the Act in the case of artificial insemination of his wife, as provided by section 7613 of the Family Code.^[6] To track the words of the statute: "If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived."^[7]

As noted in Johnson, "courts must construe statutes in factual settings not contemplated by the enacting legislature." (Johnson v. Calvert, supra, 5 [1418] Cal.4th at p. 89.) So it is, of course, true that application of the artificial insemination statute to a gestational surrogacy case where the genetic donors are unknown to the court may not have been contemplated by the Legislature. Even so, the two kinds of artificial reproduction are exactly analogous in this crucial respect: Both contemplate the procreation of a child by the consent to a medical procedure of someone who intends to raise the child but who otherwise does not have any biological tie.

If a husband who consents to artificial insemination under Family Code section 7613 is "treated in law" as the father of the child by virtue of his consent, there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them. The statute is, after all, the clearest expression of past legislative intent when the Legislature did contemplate a situation where a person who caused a child to come into being had no biological relationship to the child.

Indeed, the establishment of fatherhood and the consequent duty to support when a husband consents to the artificial insemination of his wife is one of the well-established rules in family law.^[8] The leading case in the country (so described by a New York family court in In re Adoption of Anonymous (1973) 74 Misc.2d 99 [345 N.Y.S.2d 430, 433]) is People v. Sorensen, supra, 68 Cal.2d 280, in which our Supreme Court held that a man could even be criminally liable for failing to pay for the support of a child born to his wife during the marriage as a result of artificial insemination using sperm from an anonymous donor.

In Sorensen, the high court emphasized the role of the husband in causing the birth, even though he had no biological connection to the child: "[A] reasonable man who ... actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood and criminal responsibility for nonsupport." (68 Cal.2d at p. 285, italics added.) The court went on to say that the husband was "directly responsible" for the "existence" of the child and repeated the point that "without defendant's active participation and consent the child would not have been procreated." (Ibid.)

Sorensen expresses a rule universally in tune with other jurisdictions. "Almost exclusively, courts which have addressed this issue have assigned [1419] parental responsibility to the husband based on conduct evidencing his consent to the artificial insemination." (In re Baby Doe (1987) 291 S.C. 389 [353 S.E.2d 877, 878]; accord, Gursky v. Gursky (1963) 39 Misc.2d 1083 [242 N.Y.S.2d 406, 411-412] [even though child was not technically "legitimate" under New York law at the time, husband's conduct in consenting to the artificial insemination properly invoked application of the doctrine of equitable estoppel requiring him to support the child]; Anonymous v. Anonymous (1964) 41 Misc.2d 886 [246 N.Y.S.2d 835, 836-837] [following Gursky]; K.S. v. G.S. (1981) 182 N.J. Super. 102 [440 A.2d 64, 68] [because husband did not offer clear and convincing evidence that he had withdrawn his consent to artificial insemination procedure, he was bound by initial consent given earlier and accordingly held to be lawful father of the child]; In re Marriage of Adams (1988) 174 Ill. App.3d 595 [124 Ill.Dec. 184, 528 N.E.2d 1075, 1087] [affirming child support award where trial court had determined there was "actual consent" to artificial insemination];^[9] K.B. v. N.B. (Tex. Ct. App. 1991) 811 S.W.2d 634, 639] [even though husband did not consent in writing to insemination procedure, his full knowledge of the facts and willing participation in the artificial insemination, involvement in child birth classes, speaking of the child as "our baby" and passage of time before repudiation established that he ratified procedure and was therefore liable for child support]; Levin v. Levin (Ind. 1994) 645 N.E.2d 601, 605 [consent of husband to wife's artificial insemination meant obligation to support because child was a "child of the marriage," the same as if the child had been adopted during the marriage].)

One New York family court even went so far as to hold the lesbian partner of a woman who was artificially inseminated responsible for the support of two children where the partner had dressed as a man and the couple had obtained a marriage license and a wedding ceremony had been performed prior to the inseminations. (Karin T. v. Michael T. (1985) 127 Misc.2d 14 [484 N.Y.S.2d 780].)^[10] Echoing the themes of causation and estoppel which underlie the cases, the court noted that the lesbian partner had "by her course of conduct in this case ... brought into the world two innocent children" and should not "be allowed to benefit" from her acts to the detriment of the children and public generally. (484 N.Y.S.2d at p. 784.)^[11]

Indeed, in the one case we are aware of where the court did not hold that the husband had a support obligation, the reason was not the absence of a [1420] biological relationship as such, but because of actual lack of consent to the insemination procedure. (See In re Marriage of Witbeck-Wildhagen (1996) 281 Ill. App.3d 502 [217 Ill.Dec. 329, 667 N.E.2d 122, 125-126] [it would be "unjust" to impose support obligation on husband who never consented to the artificial insemination].)

It must also be noted that in applying the artificial insemination statute to a case where a party has caused a child to be brought into the world, the statutory policy is really echoing a more fundamental idea — a sort of grundnorm to borrow Hans Kelsen's famous jurisprudential word — already established in the case law. That idea is often summed up in the legal term "estoppel." Estoppel is an ungainly word from the Middle French (from the word meaning "bung" or "stopper") expressing the law's distaste for inconsistent actions and positions — like consenting to an act which brings a child into existence and then turning around and disclaiming any responsibility.

While the Johnson v. Calvert court was able to predicate its decision on the Act rather than making up the result out of whole cloth, it is also true that California courts, prior to the enactment of the Act, had based certain decisions establishing paternity merely on the common law doctrine of estoppel. We have already discussed one of those decisions, People v. Sorensen, in detail. There an ex-husband was held, in light of his role in causing the birth of the child, to be estopped from disclaiming responsibility. Common law estoppel was also the basis for establishing paternity and its concomitant responsibility as far back as the 1961 decision of Clevenger v. Clevenger (1961) 189 Cal. App.2d 658, 662 [11 Cal. Rptr. 707, 90 A.L.R.2d 569] (husband who took illegitimate child into his home and held child out [1421] as his own "estopped" to assert illegitimacy and "avoid liability for its support").

There is no need in the present case to predicate our decision on common law estoppel alone, though the doctrine certainly applies. The estoppel concept, after all, is already inherent in the artificial insemination statute. In essence, Family Code section 7613 is nothing more than the codification of the common law rule articulated in Sorensen: By consenting to a medical procedure which results in the birth of a child — which the Sorensen court has held establishes parenthood by common law estoppel — a husband incurs the legal status and responsibility of fatherhood. (See People v. Sorensen, supra, 68 Cal.2d at p. 285.)

John argues that the artificial insemination statute should not be applied because, after all, his wife did not give birth. But for purposes of the statute with its core idea of estoppel, the fact that Luanne did not give birth is irrelevant. The statute contemplates the establishment of lawful fatherhood in a situation where an intended father has no biological relationship to a child who is procreated as a result of the father's (as well as the mother's) consent to a medical procedure.

Luanne is the Lawful Mother of Jaycee, Not the Surrogate, and Not the Unknown Donor of the Egg

In the present case Luanne is situated like a husband in an artificial insemination case whose consent triggers a medical procedure which results in a pregnancy and eventual birth of a child. Her motherhood may therefore be established "under this part," by virtue of that consent. In light of our conclusion, John's argument that the surrogate should be declared the lawful mother disintegrates. The case is now postured like the Johnson v. Calvert case, where motherhood could have been "established" in either of two women under the Act, and the tie broken by noting the intent to parent as expressed in the surrogacy contract. (See Johnson v. Calvert, supra, 5 Cal.4th at p. 93.) The only difference is that this case is not even close as between Luanne and the surrogate. Not only was Luanne the clearly intended mother, no bona fide attempt has been made to establish the surrogate as the lawful mother.^[12]

We should also add that neither could the woman whose egg was used in the fertilization or implantation make any claim to motherhood, even if she [1422] were to come forward at this late date. Again, as between two women who would both be able to establish motherhood under the Act, the Johnson decision would mandate that the tie be broken in favor of the intended parent, in this case, Luanne.

Our decision in In re Marriage of Moschetta, supra, 25 Cal. App.4th 1218, relied on by John, is inapposite and distinguishable. In Moschetta, this court held that a contract giving rise to a "traditional" surrogacy arrangement where a surrogate was simply inseminated with the husband's sperm could not be enforced against the surrogate by the intended father. (Id. at p. 1231.) In order for the surrogate not to be the lawful mother she would have to give the child up for adoption. (See id. at pp. 1231, 1233.) In Moschetta, the surrogate was the mother both by birth and genes; the woman contemplated as the intended mother in the surrogacy contract gave up any claim to the child. (Id. at pp. 1223-1225.) In fact, at the appellate level, she went so far as to file a brief in favor of the birth mother's claim. (See id. at p. 1224.)

Moschetta is inapposite because this court never had occasion to consider or discuss whether the original intended mother's participation in the surrogacy arrangement, which brought about the child's birth, might have formed the basis for holding her responsible as a parent. She had given up her claim; the issue was not before the court. Unlike the Johnson case there was no tie to break between two women both of whom could be held to be mothers under the Act. (See 25 Cal. App.4th at p. 1224. ["There is no `tie' to break."].) When courts do not consider propositions, their subsequent decisions are not precedent for them. (E.g., American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1039 [56 Cal. Rptr.2d 109, 920 P.2d 1314]; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [20 Cal. Rptr.2d 330, 853 P.2d 496].)

Moschetta is distinguishable because it involved the claim of a woman who both gave birth to the child, "contributed" the egg, and who wanted the child enough to go to court to seek custody. (See In re Marriage of Moschetta, supra, 25 Cal. App.4th at p. 1223.) The only alternative was a woman who did not give birth, did not contribute genes, and who gave up her claim. (Id. at pp. 1224-1225.) Only if the surrogacy contract were specifically enforced in Moschetta could this court have ruled in favor of the father's claim to exclusive parenthood.

There is a difference between a court's enforcing a surrogacy agreement and making a legal determination based on the intent expressed in a surrogacy agreement. (See 25 Cal. App.4th at pp. 1230, 1235, fn. 23.) By the same token, there is also an important distinction between enforcing a surrogacy [1423] contract and making a legal determination based on the fact that the contract itself sets in motion a medical procedure which results in the birth of a child.

In the case before us, we are not concerned, as John would have us believe, with a question of the enforceability of the oral and written surrogacy contracts into which he entered with Luanne. This case is not about "transferring" parenthood pursuant to those agreements. We are, rather, concerned with the consequences of those agreements as acts which caused the birth of a child.

The legal paradigm adopted by the trial court, and now urged upon us by John, is one where all forms of artificial reproduction in which intended parents have no biological relationship with the child result in legal parentlessness. It means that, absent adoption, such children will be dependents of the state. One might describe this paradigm as the "adoption default" model: The idea is that by not specifically addressing some permutation of artificial reproduction, the Legislature has, in effect, set the default switch on adoption. The underlying theory seems to be that when intended parents resort to artificial reproduction without biological tie the Legislature wanted them to be screened first through the adoption system. (Thus John, in his brief, argues that a surrogacy contract must be "subject to state oversight.")

The "adoption default" model is, however, inconsistent with both statutory law and the Supreme Court's Johnson decision. As to the statutory law, the Legislature has already made it perfectly clear that public policy (and, we might add, common sense) favors, whenever possible, the establishment of legal parenthood with the concomitant responsibility. Family Code section 7570, subdivision (a) states that "There is a compelling state interest in establishing paternity for all children." The statute then goes on to elaborate why establishing paternity is a good thing: It means someone besides the taxpayers will be responsible for the child: "Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits...." (Ibid.) In light of this strong public policy, the statutes which follow section 7570, subdivision (a) seek to provide a "simple system allowing for the establishment of voluntary paternity." (Fam. Code, § 7570, subd. (b).)

Family Code Section 7570 necessarily expresses a legislative policy applicable to maternity as well. It would be lunatic for the Legislature to declare that establishing paternity is a compelling state interest yet conclude that establishing maternity is not. The obvious reason the Legislature did not include an explicit parallel statement on "maternity" is that the issue almost never arises except for extraordinary cases involving artificial reproduction.

[1424] Very plainly, the Legislature has declared its preference for assigning individual responsibility for the care and maintenance of children; not leaving the task to the taxpayers. That is why it has gone to considerable lengths to ensure that parents will live up to their support obligations. (Cf. Moss v. Superior Court (1998) 17 Cal.4th 396, 424 [71 Cal. Rptr.2d 215, 950 P.2d 59] [noting legislative priority put on child support obligations].) The adoption default theory flies in the face of that legislative value judgment.

As this court noted in Jaycee B. v. Superior Court (1996) 42 Cal. App.4th 718, 731 [49 Cal. Rptr.2d 694], the Johnson court had occasion, albeit in dicta, to address "pretty much the exact situation before us." The language bears quoting again: "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...." (Johnson v. Calvert, supra, 5 Cal.4th at pp. 94-95.) This language quite literally describes precisely the case before us now: neither the woman whose ovum was used nor the woman who gave birth have come forward to assume custody of the child after birth.

John now argues that the Supreme Court's statement should be applied only in situations, such as that in the Johnson case, where the intended parents have a genetic tie to the child. The context of the Johnson language, however, reveals a broader purpose, namely, to emphasize the intelligence and utility of a rule that looks to intentions.

The statement, quoted above, is at the bottom of 5 Cal.4th at page 94 and top of page 95 of the opinion. Contextually, however, it is part of the development of a series of ideas which begin on page 93. The Johnson court had just enunciated its conclusion that in cases of "genetic consanguinity" and "giving birth" the intended mother is to be held the lawful mother.^[13] The court then found "support" for its conclusions in the writings of several legal commentators (id. at p. 93), the first of whom, Professor Hill, had made the point that the intended parents are the "`first cause, or prime movers, of the procreative relationship.'" (Id. 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.) The court then quoted two more law review [1425] articles, both of which emphasized the same theme as Professor Hill.<sup>[14]</sup> This laid the foundation for the court's next point, which was that people who "`choose'" to bring a child into being are likely to have the child's best interest at heart,^[15] which the court immediately juxtaposed against the surrogate's position which would result in a woman becoming the legal mother against her expectations. (Johnson v. Calvert, supra, 5 Cal.4th at p. 94.) Then came the sentence which we have already quoted addressing the "extremely rare situation" where — as is precisely the case before us now — neither the woman who has given birth nor the woman who provided the ovum were "willing to assume custody of the child after birth" — and therefore recognizing intentions as the best rule to promote certainty and stability for the child. (Id. at pp. 94-95.)

In context, then, the high court's considered dicta is directly applicable to the case at hand. The context was not limited to just Johnson-style contests between women who gave birth and women who contributed ova, but to any situation where a child would not have been born "`but for the efforts of the intended parents.'" (5 Cal.4th at p. 94, quoting Hill, op. cit., supra, 66 N.Y.U.L.Rev. at p. 415.)

Finally, in addition to its contravention of statutorily enunciated public policy and the pronouncement of our high court in Johnson, the adoption default model ignores the role of our dependency statutes in protecting children. Parents are not screened for the procreation of their own children; they are screened for the adoption of other people's children. It is the role of the dependency laws to protect children from neglect and abuse from their own parents. The adoption default model is essentially an exercise in circular reasoning, because it assumes the idea that it seeks to prove; namely, that a child who is born as the result of artificial reproduction is somebody else's child from the beginning.

In the case before us, there is absolutely no dispute that Luanne caused Jaycee's conception and birth by initiating the surrogacy arrangement whereby an embryo was implanted into a woman who agreed to carry the [1426] baby to term on Luanne's behalf. In applying the artificial insemination statute to a gestational surrogacy case where the genetic donors are unknown, there is, as we have indicated above, no reason to distinguish between husbands and wives. Both are equally situated from the point of view of consenting to an act which brings a child into being.^[16] Accordingly, Luanne should have been declared the lawful mother of Jaycee.

John Is the Lawful Father of Jaycee Even If Luanne Did Promise to Assume All Responsibility for Jaycee's Care

The same reasons which impel us to conclude that Luanne is Jaycee's lawful mother also require that John be declared Jaycee's lawful father. Even if the written surrogacy contract had not yet been signed at the time of conception and implantation, those occurrences were nonetheless the direct result of actions taken pursuant to an oral agreement which envisioned that the fertilization, implantation and ensuing pregnancy would go forward. Thus, it is still accurate to say, as we did the first time this case came before us, that for all practical purposes John caused Jaycee's conception every bit as much as if things had been done the old-fashioned way. (Jaycee B. v. Superior Court, supra, 42 Cal. App.4th at p. 730.)

When pressed at oral argument to make an offer of proof as to the "best facts" which John might be able to show if this case were tried, John's attorney raised the point that Luanne had (allegedly, we must add) promised to assume all responsibility for the child and would not hold him responsible for the child's upbringing. However, even if this case were returned for a trial on this point (we assume that Luanne would dispute the allegation) it could make no difference as to John's lawful paternity. It is well established that parents cannot, by agreement, limit or abrogate a child's right to support.^[17]

The rule is nicely illustrated by the case of In re Marriage of Ayo (1987) 190 Cal. App.3d 442 [235 Cal. Rptr. 458]. There, a husband adopted his [1427] wife's son from a previous marriage, then the couple were divorced. (Id. at p. 445.) A year after the dissolution, the son's natural father (despite the fact he had already been adopted) started visiting him. (Ibid.) In light of the natural father's renewed interest, and in settlement of some arrearages in the division of community property and child support by a lump sum payment, the parties entered into a written agreement in which the wife promised, as Luanne has allegedly promised in this case, to hold the husband "harmless from any claims of any kind regarding her minor child." (Id. at p. 448.) The agreement was filed as a written stipulation with the court and was even signed by the trial judge after the words, "it is so ordered." (Id. at p. 448.)

More than five years later the wife reneged on the agreement and sought to renew the husband's child support obligation. (190 Cal. App.3d at p. 445.) The appellate court held that the agreement was invalid, reasoning that the "rights of the contracting parties under agreements such as this one affecting children must yield to the welfare of the children." (Id. at p. 451.)

The rule against enforcing agreements obviating a parent's child support responsibilities is also illustrated by Stephen K. v. Roni L. (1980) 105 Cal. App.3d 640 [164 Cal. Rptr. 618, 31 A.L.R.4th 383], a case which is virtually on point about Luanne's alleged promise. In Stephen K., a woman was alleged to have falsely told a man that she was taking birth control pills. In "reliance" upon that statement the man had sexual intercourse with her. (Id. at p. 642.) The woman became pregnant and brought a paternity action. While the man did not attempt to use the woman's false statement as grounds to avoid paternity, he did seek to achieve the same result by cross-complaining against the woman for damages based on her fraud.

The trial court dismissed the cross-complaint on demurrer and the appellate court affirmed. The cross-complaint was "nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct." (105 Cal. App.3d at pp. 644-645.)

There is no meaningful difference between the rule articulated in Stephen K. and the situation here — indeed, the result applies a fortiori to the present [1428] case: If the man who engaged in an act which merely opened the possibility of the procreation of a child was held responsible for the consequences in Stephen K., how much more so should a man be held responsible for giving his express consent to a medical procedure that was intended to result in the procreation of a child. Thus, it makes no difference that John's wife Luanne did not become pregnant. John still engaged in "procreative conduct." In plainer language, a deliberate procreator is as responsible as a casual inseminator.^[18]

CONCLUSION

Even though neither Luanne nor John are biologically related to Jaycee, they are still her lawful parents given their initiating role as the intended parents in her conception and birth. And, while the absence of a biological connection is what makes this case extraordinary, this court is hardly without statutory basis and legal precedent in so deciding. Indeed, in both the most famous child custody case of all time,^[19] and in our Supreme Court's Johnson v. Calvert decision, the court looked to intent to parent as the ultimate basis of its decision.^[20] Fortunately, as the Johnson court also noted, intent to parent "`correlate[s] significantly'" with a child's best interests. (Johnson v. Calvert, supra, 5 Cal.4th at p. 94, quoting Schultz, op. cit. supra, Wis. L.Rev., at p. 397.) That is far more than can be said for a model of the law that renders a child a legal orphan.^[21]

Again we must call on the Legislature to sort out the parental rights and responsibilities of those involved in artificial reproduction. No matter what [1429] one thinks of artificial insemination, traditional and gestational surrogacy (in all its permutations), and — as now appears in the not-too-distant future, cloning and even gene splicing — courts are still going to be faced with the problem of determining lawful parentage. A child cannot be ignored. Even if all means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts will still be called upon to decide who the lawful parents really are and who — other than the taxpayers — is obligated to provide maintenance and support for the child. These cases will not go away.

Courts can continue to make decisions on an ad hoc basis without necessarily imposing some grand scheme, looking to the imperfectly designed Uniform Parentage Act and a growing body of case law for guidance in the light of applicable family law principles. Or the Legislature can act to impose a broader order which, even though it might not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques. As jurists, we recognize the traditional role of the common (i.e., judge-formulated) law in applying old legal principles to new technology. (See, e.g., Hurtado v. State of California (1884) 110 U.S. 516, 530 [4 S.Ct. 111, 118, 28 L.Ed. 232] ["This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law."]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394 [115 Cal. Rptr. 765, 525 P.2d 669] ["in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them"].) However, we still believe it is the Legislature, with its ability to formulate general rules based on input from all its constituencies, which is the more desirable forum for lawmaking.

That said, we must now conclude the business at hand.

(1) The portion of the judgment which declares that Luanne Buzzanca is not the lawful mother of Jaycee is reversed. The matter is remanded with directions to enter a new judgment declaring her the lawful mother. The trial court shall make all appropriate orders to ensure that Luanne Buzzanca shall have legal custody of Jaycee, including entering an order that Jaycee's birth certificate shall be amended to reflect Luanne Buzzanca as the mother.

(2) The judgment is reversed to the extent that it provides that John Buzzanca is not the lawful father of Jaycee. The matter is remanded with directions to enter a new judgment declaring him the lawful father. Consonant with this determination, today's ruling is without prejudice to John in future proceedings as regards child custody and visitation as his relationship [1430] with Jaycee may develop.^[22] The judgment shall also reflect that the birth certificate shall be amended to reflect John Buzzanca as the lawful father.

(3) To the degree that the judgment makes no provision for child support it is reversed. The matter is remanded to make an appropriate permanent child support order. Until that time, the temporary child support order shall remain in effect. (See Jaycee B. v. Superior Court, supra, 42 Cal. App.4th at p. 730.)

Luanne and Jaycee will recover their costs on appeal.

Wallin, J., and Crosby, J., concurred.

Respondent's petition for review by the Supreme Court was denied June 10, 1998.

[1] Technically, artificial insemination is classed as one of two kinds, (1) with or (2) without using the husband's semen, known respectively as homologous artificial insemination and heterologous artificial insemination. (See People v. Sorensen, supra, 68 Cal.2d at p. 284, fn. 2.) When we refer to artificial insemination in this opinion we are only referring to the heterologous variety.

[2] John's attorney was present at the hearing when the court accepted the stipulation that the surrogate was not the "biological" parent of Jaycee. He made no objection. Yet in the respondent's brief on appeal and in oral argument, he has argued that the surrogate is the lawful mother of Jaycee by virtue of the biological connection of having given birth.

One reaction to this inconsistency might be to hold, simply, that John is barred from arguing the point that the surrogate is the lawful mother because he did not object to the surrogate being let off the hook when he had the chance at the trial level. We reject that course of analysis because in this case of first impression it would be an intellectual cheat. Particularly in matters regarding children and parental responsibilities, courts must be wary of allowing lawyers from trying to cleverly (or inadvertently) maneuver a case into a posture where the court's decision does not reflect the underlying legal reality.

[3] The Act can be found in 9B West's Uniform Laws Annotated (1987) Uniform Parentage Act (1973 act) page 287.

[4] All three of the statutes were designed for proceedings involving disputed paternity. None mentioned maternity. Here is the relevant portion of each statute as it read in 1993 when Johnson was decided, all emphasis ours:

Evidence Code former section 892: "In a civil action in which paternity is a relevant fact, the court may ... order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party.... Any party's refusal ... shall be admissible in evidence in any proceeding to determine paternity." (Italics added.)

Evidence Code former section 895: "If the court finds that the conclusions of all the experts ... are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree ... or if the tests show the probability of the alleged father's paternity, the question ... shall be submitted upon all the evidence, including evidence based upon the tests." (Italics added.)

Evidence Code former section 895.5: "(a) There is a rebuttable presumption, affecting the burden of proof, of paternity, if the court finds that the paternity index ... is 100 or greater." (Italics added.)

With the introduction of the Family Code, Evidence Code former sections 892, 895, and 895.5 have become, respectively, Family Code sections 7551, 7554, and 7555. There is no material change in the language; the statutes still refer only to paternity.

[5] In In re Marriage of Moschetta (1994) 25 Cal. App.4th 1218, 1224-1226 [30 Cal. Rptr.2d 893], the court refused to apply certain presumptions regarding paternity found in the Act to overcome the claim of a woman who was both the genetic and birth mother. Relying on In re Zacharia D. (1993) 6 Cal.4th 435 [24 Cal. Rptr.2d 751, 862 P.2d 751], we observed that there may be times when the Act cannot be applied in a gender interchangeable manner. (See In re Moschetta, supra, 25 Cal. App.4th at p. 1225, fn. 8.)

It made sense in Moschetta not to apply the paternity statutes cited by the father to the biologically unrelated intended mother because those statutes merely embody presumptions. The statutes were: (1) the presumption that a child of a wife cohabiting with her husband at the time of birth is conclusively presumed to be a child of the marriage unless the husband is impotent or sterile (see Fam. Code, § 7540), and (2) the presumption that a man is the natural father if he receives the child into his home and openly holds out the child as his own (Fam. Code, § 7611, subd. (d)). We rejected application of these presumptions because, even assuming they could be applied to a woman, they were only presumptions and, just like a paternity case, could be overcome by blood tests showing an actual genetic relationship. (In re Marriage of Moschetta, supra, 25 Cal. App.4th at pp. 1225-1226.) Most fundamentally, as we pointed out on page 1226 of the opinion, the presumptions were inapposite because they arose out of the "old law of illegitimacy" and were designed as evidentiary devices to make a determination of a child's biological father.

Moschetta thus cannot be read for the proposition that statutes which are part of the Act and refer to an individual of one sex can never be applied to an individual of another. For one reason, Moschetta never said that. For another, such a broad proposition would contradict the rationale used by a higher court in Johnson.

[6] Family Code section 7613 is California's enactment of the artificial insemination provision of section 5 of the Act

[7] The entire statute reads as follows: "If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only upon an order of the court for good cause shown. [¶] (b) The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." (Fam. Code, § 7613.)

Family Code section 7613 varies from the promulgated version in that it omits the word "married" in subdivision (b) in front of the word "woman," a textual indication that the California Legislature contemplated use of artificial insemination by single women.

[8] The cases have been collected in the Annotation, Rights and Obligations Resulting From Human Artificial Insemination (1991) 83 A.L.R.4th 295.

[9] Adams was later reversed on the procedural ground that Florida law, not Illinois law, governed the dispute and the case was remanded to the trial court for further proceedings in light of that. (See In re Marriage of Adams (1990) 133 Ill.2d 437 [141 Ill.Dec. 448, 551 N.E.2d 635].)

[10] Michael T.'s name was originally Marlene. (Karin T. v. Michael T., supra, 484 N.Y.S.2d at p. 781.)

[11] In Karin T. v. Michael T., the court held in a case involving child support that the lesbian partner was "indeed a `parent' to whom such responsibility attaches." (484 N.Y.S.2d at p. 784.) By contrast, Nancy S. v. Michael G. (1991) 228 Cal. App.3d 831 [279 Cal. Rptr. 212] held that the lesbian partner of a woman who gave birth to two children through artificial insemination was not a parent for purposes of custody and visitation, even though the partner alleged that she "helped facilitate the conception and birth of both children." (Id. at p. 836.) The parties presented no issue of support obligation in Nancy S., so while the court acknowledged the doctrine of estoppel in that context, it declined to extend the estoppel doctrine "for the purpose of awarding custody and visitation to a nonparent." (Id. at p. 839.)

Likewise, in West v. Superior Court (1997) 59 Cal. App.4th 302 [69 Cal. Rptr.2d 160], the court held that a former lesbian partner did not even have standing to obtain visitation rights. As in Nancy S. there was no issue of child support based on the partner's role in the conception and birth.

In the present case we are dealing with a man and woman who were married at the time of conception and signing of the surrogacy agreement, and we are reasoning from a statute, Family Code section 7613, which contemplates parenthood on the part of a married man without biological connection to the child borne by his wife. Whether section 7613 might be applied by a parity of reasoning, as we do today to a married couple, to a nonmarried couple is not before us and we will not speculate as to the answer. It is enough to say that because the Nancy S. and West cases did not involve the issue of support and did involve nonmarried couples at the time of the artificial insemination, they are distinguishable.

[12] As noted in footnote 2, ante, John's attorney did nothing to object when the trial court accepted a stipulation taking the surrogate and her husband out of this case. Accordingly, nothing in this opinion is intended to address the question of who might be responsible for a child when only the surrogate mother is available.

[13] This rule, incidentally, has the salutary effect of working both ways. Thus if an intended mother who could carry a baby to term but had no suitable eggs was implanted with an embryo in which the egg was from a donor who did not intend to parent the child, the law would still reflect the intentions of the parties rather than some arbitrary or imposed preference.

[14] The Johnson court quoted Professor Schulz to the effect that "`intentions that are voluntarily chosen, deliberate, express and bargained-for ought presumptively to determine legal parenthood'" (Johnson v. Calvert, supra, 5 Cal.4th at p. 94, quoting Schultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality (1990) Wis. L.Rev. 297, 323) and a Yale Law Journal Note that the "`[m]ental concept of the child is a controlling factor of its creation'" (Johnson v. Calvert, supra, 5 Cal.4th at p. 94, quoting Note, Redefining Mother: A Legal Matrix for New Reproductive Technologies (1986) 96 Yale L.J. 187, 196 (italics added).)

[15] See Johnson v. Calvert, supra, 5 Cal.4th at page 94, quoting Schulz, op. cit. supra, Wis. L.Rev. at page 397.

[16] Apropos our discussion in footnote 5, ante, it may be — though the question does not need to be decided now — that some of the other ways by which paternity may be shown under the Act in addition to genetics are not "interchangeable" between the sexes. (In re Marriage of Moschetta, supra, 25 Cal. App.4th at p. 1225.) The artificial insemination statute, however, most certainly is. Unlike presumptions used to establish paternity which have their root in the "old law of illegitimacy" (see id., at p. 1226), the artificial insemination statute bears directly on a medical procedure which contemplates parenthood apart from any biological tie with the father.

[17] The legal consequences of John's allegation that Luanne would assume sole responsibility were briefed. Minor's appointed counsel specifically anticipated the point on page 11, footnote 11 of the minor's opening brief. Rather than attempt to show that Luanne's alleged promise would make a difference, John's respondent's brief merely alludes to a vague need to consider "[a]ll of the aspects of contract formation ... including, but not limited to, the issues of mistake of law or fact, fraud, coercion and duress" and claims that John had been precluded from presenting evidence on these issues by the "preemptive ruling of the trial court." Three times now — when this case was here before (Jaycee B. v. Superior Court, supra, 42 Cal. App.4th 718), at the trial, and in his respondent's brief — John has had the opportunity to present offers of proof of facts to the court which would change the result which would otherwise flow from his oral and written consent to the surrogacy. Having chosen not to respond to a point made by minor's counsel in her opening brief, John cannot now be heard to complain that he didn't have the opportunity to brief it. Then again, to be fair, John's attorney may himself have recognized that Luanne's alleged promise was of no consequence and it would be almost frivolous to press the issue at the appellate level. Every family law attorney knows that courts will not enforce promises by one parent to hold the other parent harmless from any claims of child support.

[18] This specific point was urged by Attorney Shear, counsel for amicus curiae Association of Certified Family Law Specialists, at oral argument. The phrase "casual inseminator" was coined by Justice Mosk in his concurring opinion in Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 797 [218 Cal. Rptr. 39, 705 P.2d 362].

[19] See 1 Kings 3: 25-26 (dispute over identity of live child by two single women, each of whom had recently delivered a child but one child had died, resolved by novel evidentiary device designed to ferret out intent to parent).

[20] While in each case intent to parent was used as a tiebreaker as between two claimants who either had or claimed a biological connection, it is still undeniable that, when push came to shove, the court employed a legal idea that was unrelated to any necessary biological connection.

[21] It is significant that even if the Johnson majority had adopted the position of Justice Kennard advocating best interest as the more flexible and better rule (see 5 Cal.4th at p. 118 (dis. opn. of Kennard, J.)) there is no way the trial court's decision could stand. Luanne has cared for Jaycee since infancy; she is the only parent Jaycee has ever known. It would be unthinkable, given the facts of this case and her role as caregiver for Jaycee, for Luanne not to be declared the lawful mother under a best interest test.

As for the father, John would not be the first man whose responsibility was based on having played a role in causing a child's procreation, regardless of whether he really wanted to assume it.

[22] Luanne has had actual physical custody of Jaycee from the beginning. Obviously, it would be frivolous of John to seek custody of Jaycee right now in light of that fact. However, as the lawful father he certainly must be held to have the right, consistent with Jaycee's best interest, to visitation. Our decision today leaves Luanne and John in the same position as any other divorced couple with a child who has been exclusively cared for by the mother since infancy.

And while it may be true that John's consent to the fertilization, implantation and pregnancy was done as an accommodation to allow Luanne to surmount a formality, who knows what relationship he may develop with Jaycee in the future? Human relationships are not static; things done merely to help one individual overcome a perceived legal obstacle sometimes become much more meaningful. (See, e.g., Nicholson, Shadowlands (1990) [play based on true story of prominent British author who married American citizen in Britain in perfunctory civil ceremony to allow her to remain in country; a deeper relationship then developed].)

[1269] Brian M. Barnard, James L. Harris, Jr., Utah Legal Clinic, Salt Lake City, UT, for plaintiffs.

Philip C. Pugsley, Utah Attorney General's Office, Salt Lake City, UT, for defendants.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

JENKINS, Senior District Judge.

The plaintiffs, J.R., M.R. and W.K.J., filed the instant action against the defendants under 42 U.S.C. § 1983 (2000) on March 6, 2002, seeking declaratory and injunctive relief, nominal monetary damages and attorney's fees against the defendants arising from an alleged violation of plaintiffs' federal and state constitutional rights resulting from defendants' compliance with Utah Code Ann. § 76-7-204 (1999), a Utah statute dealing with the validity and enforcement of contracts involving surrogate motherhood.

On May 7, 2002, plaintiffs filed a motion for summary judgment (dkt. no. 24); on September 5, 2002, after conducting limited discovery, the defendants filed a motion for summary judgment (dkt. no. 42), at the same time responding to plaintiffs' earlier motion. (Memorandum in Support of Defendants' Motion for Summary Judgment and in Opposition to Motion Filed by Plaintiffs, filed September 5, 2002 (dkt. no. 43) ("Defs' Mem.").) Plaintiffs filed a reply memorandum, together with exhibits (dkt. nos. 46-48).^[1]

[1270] The motions were heard on September 17, 2002. Brian M. Barnard appeared on behalf of the plaintiffs; Philip C. Pugsley, Assistant Attorney General, appeared on behalf of the defendants. Having reviewed the memoranda, affidavits and exhibits submitted by the parties, and having heard the arguments of counsel, the court took the matter under advisement.

FACTUAL BACKGROUND

The facts in this case remain essentially undisputed.

M.R. and J.R., husband and wife, are citizens of the State of Utah, as is W.K.J., an unmarried adult woman. Unable for medical reasons to have children on their own, J.R. and M.R., entered into a written agreement^[2] with W.K.J. in February 1999 in which W.K.J, agreed to serve as a gestational carrier surrogate^[3] for a child to be conceived in vitro by J.R. and M.R. W.K.J. agreed to carry the implanted embryo through delivery, to have J.R. and M.R.'s names entered on the child's birth certificate as the parents of the child, and to "voluntarily surrender and waive all custody rights, if any, to the child's parents immediately upon birth of the child." (Agreement at 4 ¶ 11.) To that end, W.K.J. agreed to "fully cooperate with any paternity/maternity proceedings or adoption proceedings necessary to establish parentage on behalf of the Intended Parents," J.R. and M.R., and to "sign all affidavits and consents and attend any scheduled court hearing(s) either prior to or after the birth of the child to finalize the proceedings." (Id. at 3 ¶ 10.)

In consideration for W.K.J.'s services as a gestational carrier surrogate,^[4] J.R. and M.R. agree to pay a list of various expenses, including legal fees, incurred by W.K.J, in connection with her pregnancy and childbirth under the terms of the Agreement. (Id. at 2 ¶ 15, 3 ¶ 10, 4 ¶ 11, 5 ¶¶ 14(A) 14(G).)^[5] They also agree to "immediately accept custody and assume full legal responsibility for the child born to [W.K.J.] pursuant to this Agreement," (id. at 4 ¶ 11), and promise to take the child as [1271] is—"recognizing that the child may have genetic or congenital abnormalities." (Id.)

Shortly after the making of the Agreement, viable embryos conceived in vitro using J.R.'s ova and M.R.'s sperm were implanted in W.K.J.'s uterus through a procedure performed in the State of California.^[6] W.K.J. carried her pregnaney to term, giving birth to twin children in January, 2000, in Salt Lake County, State of Utah.

Notwithstanding the terms of the Agreement and the facts surrounding the plaintiffs' gestational surrogacy procedure, the Utah State Office of Vital Records and Statistics has declined plaintiffs' request that birth certificates be issued listing J.R. and M.R. as the parents of the two children. Instead, the existing birth certificates list W.K.J, as the mother and no one as the father. While defendant Nangle, acting as Director of that Office, has indicated that M.R. could be added to the certificates as father of the children based upon M.R. and W.K.J.'s acknowledgment, the Office would decline to remove W.K.J, and list J.R. as the mother of the children, at least "based solely on the written representations of W.K.J., M.R. and J.R. that J.R. is the biological mother of the children." (Plaintiffs' Statement of Facts at 8-9 ¶¶ 30-31.)

PLAINTIFFS' LEGAL THEORIES

Plaintiffs seek declaratory and injunctive relief (1) holding Utah Code Ann. § 76-7-204 (1999) unconstitutional under the Fourteenth Amendment to the United States Constitution and Article I, §§ 7 and 25 of the Utah Constitution; (2) forbidding compliance with or enforcement of Utah Code Ann. § 76-7-204 by the defendant state officers; (3) validating the plaintiffs' In Vitro/Surrogate Implantation Agreement; and (4) requiring that the Utah Office of Vital Records and Statistics issue birth certificates for the plaintiffs' children "reciting that J.R. and M.R. are the parents of the children." (Complaint, filed March 6, 2002 (dkt. no. 1), at 2 ¶ 1.)

Utah Code Ann. § 76-7-204 (1999) reads:

76-7-204. Prohibition of surrogate parenthood agreements-Status of child-Basis of custody.

(1) (a) No person, agency, institution, or intermediary may be a party to a contract for profit or gain in which a woman agrees to undergo artificial insemination or other procedures and subsequently terminate her parental rights to a child born as a result.

(b) No person, agency, institution, or intermediary may facilitate a contract prohibited by Subsection (1). This section does not apply to medical care provided after conception.

(c) Contracts or agreements entered into in violation of this section are null and void, and unenforceable as contrary to public policy.

(d) A violation of this subsection is a class B misdemeanor.

(2) An agreement which is entered into, without consideration given, in which a woman agrees to undergo artificial insemination or other procedures and subsequently terminate her parental rights to a child born as a result, is unenforceable.

[1272] (3) (a) In any case arising under Subsection (1) or (2), the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes.

(b) In any custody issue that may arise under Subsection (1) or (2), the court is not bound by any of the terms of the contract or agreement but shall make its custody decision based solely on the best interest of the child.

(4) Nothing in this section prohibits adoptions and adoption services that are in accordance with the laws of this state.

(5) This section applies to contracts or agreements that are entered into after April 24,1989.

Plaintiffs J.R. and M.R. assert that the statute infringes upon their fundamental constitutional right to procreate by denying them the right to make an enforceable agreement to obtain the assistance of a third party in bearing children that J.R. is medically incapable of bearing on her own. If enforced according to its terms, plaintiffs argue, Utah Code Ann. § 76-7-204 effectively leaves them childless, thereby denying their right to procreate altogether. Further, the statute "[r]emov[es] the possibility that a biological mother can become the legal parent of children produced through gestational surrogacy" because it conclusively presumes the surrogate mother to be the legal parent of the child. (Memorandum in Support of Plaintiffs' Motion for Summary Judgment, filed May 7, 2002 (dkt. no. 25) ("Pits' Mem."), at 23.) This presumption also denies equal protection to J.R., plaintiffs assert, because under Utah law and administrative practice, the genetic/biological father of a child born to an unmarried gestational surrogate may be listed as the father on the child's birth certificate, while the genetic/biological mother may not. (Id. at 18-22.)

The Constitutional Right to Procreate

Counsel points to language in a series of United States Supreme Court cases indicating that "[a]n individual's right to procreate and produce a family is well established in our nation's history and traditions," and that the right to procreate represents "`a basic liberty,'" "`one of the basic civil rights of man ... fundamental to the very existence and survival of the race.'" (Pltfs' Mem. at 4, 5 (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942)).)

Moreover, the Supreme Court has explicitly recognized that the fundamental right of privacy protected under the Due Process Clause encompasses individual decisions regarding procreation, marriage and parentage. Carey v. Population Svcs. Int'l, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The Carey Court stated that "it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education." Id. (internal quotations and citations omitted) (citing Skinner, 316 U.S. at 541-42, 62 S.Ct. 1110). Of all these personal choices, "decisions whether to accomplish or to prevent conception are among the most private and sensitive." Id. at 685. Thus, the decision to procreate "is at the very heart of this cluster of constitutionally protected choices." Id.; see also Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."); Glucksberg [1273] 521 U.S. at 720, 117 S.Ct. 2258 ("[T]he `liberty' specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, [and] to marital privacy." (internal citations omitted)).

(Id. at 5.) The right to procreate, plaintiffs maintain, "is inextricably linked to the right to assume the role of parent to the procreated children." (Id. at 6.) They point to cases such as Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), vindicating an unwed father's fundamental interest in the care and custody of his three children, and Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), acknowledging the historical importance of biological relationships to the concept of family.^[7] (Id.)

Plaintiffs also rely on the Utah Supreme Court's declaration that "the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child under Article I, § 7 and § 25." In re J.P., 648 P.2d 1364, 1377 (Utah 1982). Striking down a Utah law allowing the state to terminate a mother's parental rights involuntarily without a first establishing that she was unfit, the In re J. P. court reaffirmed the right to procreate as one of the "rights inherent in family relationships ... which are the most obvious examples of rights retained by the people. They are `natural,' `intrinsic,' or `prior' in the sense that our Constitutions presuppose them." Id. at 1373.

Gestational Surrogacy & the Right to Procreate

J.R. and M.R. assert that "[b]y engaging in the process of gestational surrogacy to produce their own child, J.R. and her husband, M.R. have exercised their fundamental right to procreate." (Reply & Response Memorandum in Support of Plaintiffs' Motion for Summary Judgment, filed September 16, 2002 (dkt. no. 46) ("Pltfs' Reply/Resp. Mem."), at 8.) They argue that Utah Code Ann. § 76-7-204 unduly burdens the exercise of their right to procreate by declaring surrogacy contracts to be unenforceable. This attempt to limit access to this procreative means may be justified only by compelling state interests. In Carey, for example, a state law restricting access to contraceptives was held to limit the exercise of the right to decide not to procreate, and did not survive strict scrutiny. Carey v. Population Services International, 431 U.S. 678, 686-91, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Likewise, plaintiffs insist, Utah's surrogacy statute limits these plaintiffs' access to medical technology that enables them to exercise their right to decide to procreateto have children and a family-and it must therefore undergo strict scrutiny as well. (Pltfs' Mem. at 8-16.) "The State has no justifiable interest in preventing infertile couples from procreating through the gestational surrogacy process" absent some profit motive or actual monetary gain, and the State cannot justify the burden imposed upon the exercise of plaintiffs' rights by Utah Code Ann. § 76-7-204 on public policy grounds; plaintiffs submit that the statute should be held unconstitutional under both the federal and Utah constitutions. (Id. at 16-18.)

[1274] J.R. and M.R. aver that gestational surrogacy represents their only opportunity to "bear or beget a child" that would truly be theirs, a true genetic and biological child of the marriage. Absent gestational surrogacy, their marriage would remain childless. Their singular opportunity to procreate through gestational surrogacy necessarily implicates their fundamental right to bear children, thereby invoking the protections of the United States Constitution and the Utah Constitution. See Marsha Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage, 113 Harv.L.Rev. 835, 856 (2000) ("[A] complete state ban on access to reproductive technology thus would also be constitutionally suspect, as it would deprive the infertile of their only chance at genetic parenthood." (footnote omitted)).

On the same basis, Plaintiffs also challenge § 76-7-204(3)(a)'s presumption that "the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes." If this presumption is given conclusive effect, the statute frustrates J.R. and M.R.'s exercise of their right to procreate through gestational surrogacy by denying them legal parenthood of children who are unquestionably their own. Plaintiffs also contend that § 76-7-204(3)(a) infringes on W.K.J.'s fundamental right to make procreative decisions by "forc[ing] legal parenthood on her against her will." (Pltfs' Mem. at 14-15.) By creating a statutory presumption that a surrogate is the mother of children born to her, "[i]n effect, the State has declared, against W.K.J.'s own wishes, that W.K.J. has engaged in procreation although the children are not W.K.J.'s genetic or intended children." (Id. at 15.) See Soos v. Superior Court, 182 Ariz. 470, 897 P.2d 1356, 1361 (1994) (Gerber, J., concurring) (a surrogate's "contract is to carry the child, not to nurture or raise it.").

Beyond that, the plaintiffs challenge the State's existing administrative recordkeeping scheme, under which the genetic/biological father's name may be placed upon the birth certificates of a child born to a gestational carrier surrogate (if the surrogate mother is unmarried), but the genetic/biological mother's name cannot. This disparity, they assert, operates to deny the genetic/biological mother the equal protection of the laws guaranteed by the Fourteenth Amendment. (Id. at 18-22.) The court in Soos reached essentially the same conclusion in striking down a similar disparity on equal protection grounds: "By affording the Father a procedure for proving paternity, but not affording the Mother any means by which to prove maternity, the State has denied her equal protection of the laws." 897 P.2d at 1361.

Defendants' Response

Counsel for the defendants acknowledges that "[t]he ability to procreate and decisions between a man and wife relating thereto have been considered to be a fundamental right under the Due Process Clause of the United States Constitution, and that `if privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'" (Defs' Mem. at 9 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)).) Counsel argues that § 76-7-204 does not infringe upon J.R. and M.R.'s fundamental right to procreate because that right has not yet been extended to embrace gestational surrogacy: "the Supreme Court has not extended the fundamental right to procreate to encompass the type of reproductive technology involved in this case," (id. at 9), and cases [1275] such as the Baby M case do not extend that right to cover surrogacy arrangements. (Id. at 4-7, 9-12.) See In re Baby M, 109 N.J. 396, 537 A.2d 1227, 1253, 77 A.L.R.4th 1 (1988) ("The right to procreate very simply is the right to have natural children, whether through sexual intercourse or artificial insemination," and does not include the custody, care, companionship and nurturing that follow birth).

Defendants submit that state legislation such as this should not be struck down unless the finding of unconstitutionality proves to be "strictly unavoidable," (id. at 3), and that given appropriate deference, the Utah surrogacy statute should be upheld as against plaintiffs' facial or "as applied" constitutional challenge. (Id. at 4.) The statute serves legitimate state interests in the protection of the health and well-being of surrogate mothers and the children born to them, and in avoiding the commercialization of childbirth: " `[a]s overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities.' " (Id. at 13-20 (quoting Doe v. Attorney General, 194 Mich.App. 432, 487 N.W.2d 484, 486 (1992)).)

Defense counsel contends that Utah's surrogacy statute addresses questions of public policy well suited to determination by the Legislature. (Id. at 4-7); see Johnson v. Calvert, 5 Cal.4th 84, 97, 19 Cal. Rptr.2d 494, 851 P.2d 776 (1993) ("[w]e 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."). The "time and research required to study and resolve a complicated social issue such as surrogacy are available to a legislative body," where "`fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated.'" (Id. at 5) (quoting Calvert, 5 Cal.4th at 102, 19 Cal.Rptr.2d 494, 851 P.2d at 788 (Arabian, J., concurring) (quoting Satz v. Perlmutter, 379 So.2d 359, 360 (Fla.1980))). The Utah surrogacy statute "was passed after due deliberation and study by the Legislature," and "[a] legislative decision having been made in Utah, it should be respected. Thus, in this case, the court should defer to the will of the people because it is reasonable," and deciding otherwise would infringe on the prerogatives of the legislative branch. (Id. at 6, 7.)^[8]

Defense counsel also asserts that the constitutional questions raised by plaintiffs need not even be decided in this case because the result sought by plaintiffs— full legal recognition of J.R. and M.R. as the parents and guardians of their children and the issuance of conforming birth certificates—may be achieved through Utah adoption proceedings without running afoul of the provisions of the surrogacy statute. (Id. at 7-8; see Utah Code Ann. § 76-7-204(4) ("Nothing in this section prohibits adoptions and adoption services that are in accordance with the laws of this state."); Utah Code Ann. §§ 78-30-1 through 78-30-19 (2002).)

GESTATIONAL SURROGACY & PLAINTIFFS' CONSTITUTIONAL RIGHTS

While the United States Supreme Court has not yet addressed gestational surrogacy as a constitutional matter, the Court's more recent enumeration of "certain fundamental [1276] rights and liberty interests" counsels a broader reading of those rights and interests than the defendants now suggest:

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); to bodily integrity, Rochin v. Califomia, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S. at 278-279, 110 S.Ct. 2841.

Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). The Court has "recognized on numerous occasions that the relationship between parent and child is constitutionally protected." Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); accord Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (describing the "fundamental liberty interest of natural parents in the care, custody, and management of their child").^[9]

Moreover, the Utah Supreme Court has defined the "constitutional right of parents" in expansive terms:

This Court has recently declared that "the ideals of individual liberty which... protect the sanctity of one's home and family" are "essential in a free society...." In re Castillo, Utah, 632 P.2d 855, 856 (1981). A parent has a "fundamental right, protected by the Constitution, to sustain his relationship with his child." State in re Walter B., 577 P.2d 119, 124 (1978) (plurality opinion). It is fundamental to our jurisprudence that "the custody, care and nurture of the child reside first in the parents," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), and that the parents' right "to direct the upbringing and education of children under their control," Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925), is protected by the Constitution. In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), the Supreme Court included family relationships in the "liberty" of which a state cannot deprive any person without due process of law under the Fourteenth Amendment to the United States Constitution....

In re J.P., 648 P.2d at 1372. Justice Oaks, writing for the Utah Supreme Court, emphasized the deep roots of parents' right to maintain their relationship with their children:

We deal here with a fundamental principle. The Constitution of Utah [1277] declares, "Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." Article I, § 27. The cornerstone of democratic government is the conviction that governments exist at the sufferance of the people, in whom "(a)ll political power is inherent...." Utah Const. Art. I, § 2. A residuum of liberty reposes in the people. That liberty is not limited to the exercise of rights specifically enumerated in either the United States or the Utah Constitutions. Thus, Article I, § 25 of the Utah Constitution states, "This enumeration of rights shall not be construed to impair or deny others retained by the people." The Ninth Amendment to the United States Constitution states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." See generally Griswold v. Connecticut, 381 U.S. 479, 486-99, 85 S.Ct. 1678, 1682-90, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring); L. Tribe, American Constitutional Law, § 11-3 (1978).

The rights inherent in family relationships-husband-wife, parent-child, and sibling-are the most obvious examples of rights retained by the people. They are "natural," "intrinsic," or "prior" in the sense that our Constitutions presuppose them, as they presuppose the right to own and dispose of property.... Blackstone deemed "the most universal relation in nature ... (to be) that between parent and child." 1 W. Blackstone, Commentaries * 446.

Id. at 1372-73. The Utah Supreme Court views the right of a parent to maintain the relationship with a child as axiomatic: "The integrity of the family and the parents' inherent right and authority to rear their own children have been recognized as fundamental axioms of Anglo American culture, presupposed by all our social, political, and legal institutions."

This parental right transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct. Thus, the United States Supreme Court has declared that "the liberty interest in family privacy has its source ... in intrinsic human rights...." Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977).... Similarly, this Court has stated that the parent's right, as well as duty, to care for a child "may be termed natural, as well as legal and moral." Mill v. Broivn, 31 Utah 473, 483, 88 P. 609, 613 (1907). More recently, this Court has spoken of "the natural right and authority of the parent to the child's custody," State in re Jennings, 20 Utah 2d 50, 52, 432 P.2d 879, 880 (1967), and of "the prior and fundamental right of a parent to rear his child...." In re Castillo, 632 P.2d at 856.

Id. at 1373-74 (some quotations & citations omitted). In re J.P. emphatically reaffirms that "the rights embodied in family relationships are inherent, natural, and retained rights," fundamental in nature, and that "`[t]he integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.' " Id. at 1374 (quoting Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. 1208 (citations omitted)).

The question, then, is not one of "extending constitutional protection to an asserted right or liberty interest," or being "asked to break new ground in this field," Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258, because the fundamental right to [1278] bear and raise children within the context of a marriage is already clearly established. See, e.g., Roska v. Peterson, 304 F.3d 982, 993-94 (10th Cir.2002) (constitutionally protected liberty interest in family relationship between parents and child is clearly established; infringement of that interest by removing child from parents' custody without a hearing constitutes a denial of due process for which qualified immunity was not available); Carey v. Population Services International, 431 U.S. at 687, 97 S.Ct. 2010 ("[T]he Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State."); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) ("This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."); State ex rel. M.W., 12 P.3d 80, 83 (Utah 2000) ("The court of appeals correctly stated in its decision that `the Utah Constitution and the United States Constitution "recognize[] and protect[ ] the inherent and retained right of a parent to maintain parental ties to his or her child."'" (citations omitted)); Matter of Adoption of B.O., 927 P.2d 202, 207 (Utah Ct.App.1996) ("We agree ... that `a parent has a fundamental right to maintain a relationship with his or her child.' This right is by now well established by both United States and Utah precedent." (citations omitted)); State in Interest of E.D. v. E.J.D., 876 P.2d 397, 400 n. 5 (Utah Ct.App.1994) ("It is well established that the Utah Constitution and the United States Constitution `"[recognize] and [protect] the inherent right of a parent to maintain parental ties to his or her child."'" State ex rel. P.H. v. Harrison, 783 P.2d 565, 569 (Utah App.1989) (quoting In re J.P., 648 P.2d 1364, 1377 (Utah 1982)); accord State ex rel. D.W. Ill v. W.M., 856 P.2d 363, 367 (Utah App. 1993).").

Rather, the question is whether the statute unduly burdens the exercise of that right in a fashion that demands a judicial remedy.

CONFLICT BETWEEN STATUTE AND CONSTITUTION

Where an act of the legislature comes into conflict with the command of the United States Constitution or the constitution of the state of its enactment, there is no question as to the outcome: the statute fails and the constitution prevails. See, e.g., Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) ("[A] statute apparently governing a dispute cannot be applied by judges, consistently with their obligations under the Supremacy Clause, when such an application of the statute would conflict with the Constitution. Marbury v. Madison, [5 U.S.] 1 Craneh 137, 2 L.Ed. 60 (1803)."); Mississippi University for Women v. Hogan, 458 U.S. 718, 732-33, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ("neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.")

The more difficult question arises in trying to define the nature and extent of the conflict, if indeed a conflict between statute and constitution exists at all. See, e.g., Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (no conflict between statute prohibiting abortions and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), as applied to attempted abortion by untrained and unlicensed practitioner).

In the context of reproductive or procreative choice, a state law " *which imposes an undue burden on the woman's decision'" concerning procreative matters "is unconstitutional.... An `undue burden is ... shorthand for the conclusion that a [1279] state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman'" seeking to make procreative choices. Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 877, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion)).^[10] "[W]here a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests." Carey, 431 U.S. at 686, 97 S.Ct. 2010. See Edwards v. Valdez, 789 F.2d 1477, 1483 (10th Cir.1986) ("If a statute... infringes upon a fundamental right, it is subject to strict scrutiny and will be sustained only if it is precisely tailored to further a compelling state interest.").

Plaintiffs' Challenge to Utah Code Ann. § 76-7-204 (1999)

The Utah surrogacy statute, Utah Code Ann. § 76-7-204 (1999), does not prohibit use of gestational surrogacy as a procreative method, or deny persons access to that medical technology, in contrast to cases such as Carey, in which distribution of nonprescription contraceptives was limited to licensed pharmacists. 431 U.S. at 681-82, 97 S.Ct. 2010. It is uncontroverted that plaintiffs utilized this method to accomplish the birth of twin children, and to that extent, have effectively exercised their rights to procreate.

The question now facing this court is whether the Utah surrogacy statute unduly burdens J.R. and M.R. in the exercise of their procreative and parental rights by denying them the recognition and rights of legal parents to the care and custody of their children because the children were born through gestational surrogacy.^[11] Plaintiffs challenge the constitutionality of Utah Code Ann. § 76-7-204(2) and (3),^[12] alleging that these provisions "prevent J.R. and M.R. from legally being acknowledged as parents of their own children," even though DNA testing indicates to a presumptive certainty that "J.R. and M.R. are, respectively, the biological mother and father of the twins who are in part the subject matter of this action." (Pltfs' Reply/Response Mem. at 3 ¶¶ 6, 7.)

Plaintiffs & Utah Code Ann. § 76-7-204(2)

Section 76-7-204(2) declares surrogacy agreements to be unenforceable even when not made for profit or gain as proscribed by § 76-7-204(1). Yet this provision says nothing about whether or not J.R. and [1280] M.R. may be "legally ... acknowledged as parents of their own children." That question falls outside of the terms of the parties' Agreement, be it enforceable or not.

The court has reviewed the Complaint with some care, and it appears that none of the relief sought by plaintiffs in this action involves the actual enforcement of any of the terms of the plaintiffs' Agreement against any party. The Agreement reflects a mutual exchange of promises between J.R. and M.R. on the one hand, and W.K.J. on the other. All three parties to the Agreement are aligned as plaintiffs in this action, and none of them have alleged any controversy arising out of the terms of their Agreement.^[13]

Absent some genuine issue concerning the enforcement of the plaintiffs' Agreement, the plaintiffs lack standing to challenge § 76-7-204(2) because they have alleged no injury in fact resulting from the application or enforcement of this statutory provision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("plaintiff must have suffered an injury in fact'—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent", not "conjectural" or "hypothetical." Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly tracefable] to the challenged action of the defendant, ..." (citations omitted)); Z.J. Gifts D-k, L.L.C. v. City of Littleton, 311 F.3d 1220, 1226 (10th Cir. 2002).

Utah Code Ann. § 76-7-204(3)(a) & Determination of Parental Rights

As noted above, Utah Code Ann. § 76-7-204(3)(a) provides that "the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes." In contrast to § 76-7-204(2), this provision may bear directly upon the question whether J.R. and M.R. may be "legally ... acknowledged as parents of their own children." (Pltfs' Reply/Resp. Mem. at 3 ¶ 7.) Plaintiffs have alleged the requisite "injury in fact" that affords them standing to pursue their constitutional challenge to this statutory presumption.

Defendants' counsel submits that § 76-7-204(3)(a) was enacted to ensure that whatever else may happen, a child born of a surrogacy arrangement comes into the world with at least one easily identifiable legal parent and guardian-the birth mother-and thus cannot be orphaned at birth at the whim of the genetic parents. (Defs' Mem. at 14-16 (citing John J. Mandler, Developing a Concept of the Modern Family: A Proposed Uniform Surrogate Parenthood Act, 73 Geo. L.J. 1283, 1285-86 (1985)).)^[14] However, where the genetic/biological parents actively assert their rights and interests in the child and seek full custody of the child, the State's concern about orphanage largely dissipates.

[1281] If, even in that setting, Utah Code Ann. § 76-7-204(3)(a) applies to preclude either the assertion by J.R. and/or M.R. of their parental relationship with the children they have conceived or the recognition of J.R. and M.R. as legal parents of the children, then at that point, the law takes flight from the facts and plaintiffs' fundamental right to procreate and to maintain family relations may be unduly burdened.^[15]

Construction of Utah Code Ann. § 76-7-204(3)(a)

The Utah surrogacy statute was first enacted in 1989, following on the heels of the controversial "Baby M" litigation in the courts of the State of New Jersey. See In re Baby M, 109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (1988). The Legislature likely was concerned about the protection of the procreative rights of birth mothers who conceived children through artificial insemination pursuant to contracts under which they agreed in advance to forfeit their parental rights to their own genetie/biological/birth children in favor of the genetic/biological father with whom they had agreed, much like the circumstances of Baby M. Legislatures in nearly half of the states enacted similar measures at about the same time. See, e.g., Lori Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood 81 Va. L.Rev. 2343, 2346-49 (1995).

As plaintiffs point out, however, medical technology has moved beyond artificial insemination and traditional surrogacy^[16] to the viable implantation of embryos fertilized in vitro using ova and sperm cells from the "intended parents," not the surrogate birth mother. To the extent that the meaning of a statute is defined by the problem that it was designed to remedy,^[17] it may be that the Utah surrogacy statute simply did not contemplate the unique interplay of interests involved in the implantation of live embryos in the womb of a genetic stranger, in contrast to the more conventional dispute between the genetic/biological birth mother and genetic/biological father in the Baby M case.^[18]

A narrowing construction^[19] of § 76-7-204(3)(a) that would limit its application to [1282] surrogate birth mothers who have contributed their own genetics to the conception of the child would obviate the application of the statutory presumption to cases of true gestational surrogacy—such as this one—and avoid any conflict with the fundamental rights of genetic/biological parents such as J.R. and M.R.

"It is well-settled that a federal court must uphold a statute if it is `"readily susceptible" to a narrowing construction that would make it constitutional Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d 1174, 1194 (10th Cir.2000) (quoting Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)).

The key to application of this principle is that the statute must be `readily susceptible' to the limitation; we will not rewrite a state law to conform it to constitutional requirements. American Booksellers, 484 U.S. at 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (citations omitted, emphasis added). Even the Supreme Court is "without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent." Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 2616, 147 L.Ed.2d 743 (2000) (quotations and citations omitted); see also Almendarez-Torres v. United States, 523 U.S. 224, 238, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (statute must be "genuinely susceptible" to narrowing construction); City of Houston v. Hill, 482 U.S. 451, 468, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) ("fairly" or "obviously susceptible"); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) ("easily susceptible").

Id.

Weighing against a narrowing construction of § 76-7-204(3)(a) is its reference to "any case arising under Subsection (1) or (2)"; both subsections (1) & (2) refer to "a woman [who] agrees to undergo artificial insemination or other procedures " resulting in the birth of a child. Utah Code Ann. § 76-7-204(1), (2) (1999) (emphasis added). The "artificial insemination or other procedures" language of § 76-7-204(1) & (2) thus defines the class of persons who are affected by § 76-7-204(3)(a). Nothing in § 76-7-204 further defines the scope or expanse of the phrase "or other procedures," or indicates whether it was intended to cover gestational surrogacy or not.

Plaintiffs submit that there is no legislative history available for Utah Code Ann. § 76-7-204, and they point out that the legislative materials cited by defense counsel refer to the substance of other legislative proposals that were not enacted. (Pltfs' Reply/Resp. Mem. at 11-12; see [1283] Exhibits re: Legislative History, filed September 17, 2002 (dkt. no. 48).)

Neither plaintiffs nor the Attorney General have suggested a narrowing construction of the statute as a means of avoiding the alleged clash of constitution and statute in this case.^[20] This court is reluctant to impose a narrowing construction sua sponte, at least in the absence of interpretive aids such as legislative history that support such a reading of the statute's plain language.^[21] Given its ordinary meaning, the phrase "artificial insemination or other procedures " appears to contemplate medical procedures beyond or in addition to the artificial insemination utilized in Baby M, including in vitro fertilization-a procedure that was available by 1989 when the statute was passed.^[22] A narrowing construction must be rejected if it "conflicts with the statutory language," Stenberg, 530 U.S. at 942, 120 S.Ct. 2597, as it appears that it would in this instance.

Fundamental Rights vs. Compelling Interests

To the extent that Utah Code Ann. § 76-7-204(3)'s declaration that "the surrogate mother is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes" may be read to limit or even preclude the assertion of parental rights or interests by the genetic/biological father or mother of the child, the genetic/biological parents' constitutionally protected rights have been burdened by the statute. Absent a compelling state interest justifying that burden,^[23] a finding that § 76-7-204(3) is unconstitutional as applied becomes "strictly unavoidable" if the genetic/biological parents' fundamental rights—and the constitutions that guarantee them—are to be vindicated.

The State's "Compelling Interests"

That gestational surrogacy implicates J.R. and M.R.'s fundamental rights does not mean that all other interests instantly give way, or that the State has nothing to say about the process. The gestational carrier surrogate is still the birth mother of the child, with at least some legally protected interests. The State asserts ongoing interests in protecting the health, safety and welfare of both the birth mother [1284] and the child born of that pregnancy, whatever the child's genetic origins may be. Indeed, defense counsel asserts that the State's legitimate—even compelling— interests include (1) protecting the best interests of the child born through gestational surrogacy;^[24] (2) avoiding complicated and unsettling custody disputes; (3) protecting the surrogate birth mother's physical health and emotional well being, and her interest in a relationship with the child she had borne; (4) preventing the exploitation of women, particularly through surrogacy-for-profit arrangements; and (5) preventing children from becoming "commodities" to be purchased and sold. (Defs' Mem. at 12-23.)

"The Best Interests of the Child"

Defendants argue that "the best interest of the child [is] a sufficiently compelling interest to justify government intrusion into a person's fundamental, but qualified right to procreate," particularly when "surrogacy contracts avoid any objective determination of the best interest of the child." (Id. at 14 (citing Doe v. Attorney General, 194 MichApp. 432, 487 N.W.2d 484, 486-87 (1992)).) Plaintiffs respond that § 76-7-204(3)'s conclusive presumption that the gestational surrogate (and her spouse, if any) is the legal parent of the child also "avoids any objective determination of the best interest of the child," contrary to the defendants' assertion that "those interests must be paramount." (Pltfs' Reply/Resp. Mem. at 14.)

The question of "the best interests of the child" proves inescapably fact-driven.^[25] Yet § 76-7-204(3) requires no fact-finding to decide that it is in "the best interest of the child" in all instances for the gestational surrogate birth mother to be deemed the legal parent of the child— regardless of the circumstances of the genetic/biological parents who actually conceived the child—and to do so without a [1285] hearing. In every instance, it finds the fact of parenthood from the fact of childbirth. In the context of gestational surrogacy, § 76-7-204(3) serves as "an irrebuttable presumption often contrary to fact," lacking "critical ingredients of due process...." United States Dept. of Agriculture v. Murry, 413 U.S. 508, 514, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973).^[26]

Utah Code Ann. § 76-7-204(3)(a) operates in every instance to abrogate the parental rights and interests of genetic/biological parents at the moment of their child's birth, without any prior opportunity for hearing on the merits of those rights and interests vis-a-vis the "best interests of the child"-an obviously inappropriate result in any other context, even in dealing with children born out of wedlock. See Stanley v. Illinois, 405 U.S. at 654-59, 92 S.Ct. 1208 (striking down state's irrebuttable statutory presumption that all unmarried fathers are not qualified to raise their children; hearing on the merits required); Caban v. Mohammed, 441 U.S. 380, 388-94, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (invalidating statute which requires consent of the mother of a child born out of wedlock to adoption, but denied the same right to the father of the child); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (requiring proof by no less than clear and convincing evidence to justify termination of parental rights).^[27]

The Utah Supreme Court has already determined that under both the United States Constitution and the Utah Constitution, the Legislature may not predetermine that "the best interests of the child" alone warrant the involuntary abrogation of parental rights where there has been no adjudication of a parent's unfitness, or a showing of abandonment or substantial] neglect. "[T]hat the child's welfare is the `paramount consideration'" does not "imply that the child's welfare is the sole consideration, to the exclusion of parental rights." In re J.P., 648 P.2d at 1377.

In re J.P. amplified Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), in which a unanimous Court underscored the constitutional inadequacy of a finding of a "child's best interest" as the sole means of overriding the constitutional right of parents who have not been shown to be unfit, echoing the observation in Stantosky that the State's "interest favors preservation, not severance, of natural familial bonds," at least "while there is still reason to believe that positive, nurturing parent-child relationships exist." 455 U.S. at 766-67, 102 S.Ct. 1388.^[28]

[1286] The parent-child relationship is a, fact— one having legal significance and legal consequences, but a fact nonetheless. Parenthood is not brought into being by the operation of state or federal law. It arises from the conception and birth of children. Parenthood differs from, say, the privilege to form a corporation, or to distribute one's property by will, or to drive an automobile, because the parent-child relationship finds its source not in a legislative act, but in the facts of life itself.

Childbirth makes parents of ordinary persons. The Legislature does not.

This parental right transcends all property and economic rights. It is rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct. Thus, the United States Supreme Court has declared that "the liberty interest in family privacy has its source ... in intrinsic human rights...." Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 53 L.Ed.2d 14, ...

In re J.P., 648 P.2d at 1373.^[29] See also Belsito v. Clark, 67 Ohio Misc.2d 54, 644 N.E.2d 760 (1994) (the natural parents of a child conceived through in vitro fertilization and born to a gestational surrogate are the persons who have provided the "genetic imprint" for that child, unless they have affirmatively relinquished their rights).

The parent-child relationship between J.R. and M.R. and the children born to W.K.J, likewise remains an uncontroverted genetic and biological fact. The Legislature cannot overcome that fact (or the fundamental interests that arise from that fact) using the simplistic device of a conclusive presumption that the fact does not exist. And "the State registers no gain towards its declared goals when it separates children from the custody of fit parents." Stanley v. Illinois, 405 U.S. at 652, 92 S.Ct. 1208.

In re J.P. left no doubt that the Legislature cannot elect to end a parent's relationship with a child by "substitut[ing] a finding of `the child's best interest' for a finding that a parent is `unfit or incompetent' as a basis for the involuntary termination of parental rights." 648 P.2d at 1377-78. See State in Interest of G.D. v. L.D., 894 P.2d 1278 (Utah Ct.App.1995) ("In fact, it is unconstitutional to terminate a parent's rights based upon a finding of the best interests of the child without first finding that the parent is below some minimum threshold of fitness. In re J.P., 648 P.2d 1364,1374-77 (Utah 1982).")^[30]

States must "provide the parents with fundamentally fair procedures" protecting against improper termination of the parent-child relationship, Santosky, 455 U.S. at 754, 102 S.Ct. 1388, including parentchild relationships between genetic/biological mothers and fathers and children born through gestational surrogacy. The State's concern for the "best interests of the child," however compelling it may be, [1287] cannot sustain a legislative act that would summarily rewrite the facts of parenthood to suit legislative preferences as to matters of public policy.

Protection of the Surrogate Mother

Defendants also assert that Utah Code Ann. § 76-7-204 protects the surrogate birth mother's physical health and emotional well being, and that § 76-7-204(3)(a) protects her interest in a relationship with the child to whom she has given birth by deeming her in every instance to be "the mother of the child for all legal purposes," whether she desires to be or not. Plaintiffs object that this is "forcing parenthood" upon someone who does not want it, someone who has given birth to another couple's child solely to assist them in building their family.^[31]

The California Supreme Court 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, and cert, dismissed, 510 U.S. 938, 114 S.Ct. 374, 126 L.Ed.2d 324 (1993), acknowledged that both the genetic/biological mother and the gestational surrogate birth mother had submitted credible evidence of a mother and child relationship under California's version of the Uniform Parentage Act.^[32] Given those relationships, the court turned to the intent of the parties to the surrogacy agreement to determine that the natural and legal parents of the child were those who intended to bring about the birth and raise the child as their own-the genetic/biological mother and father. However, the court rejected the claim that the gestational surrogate was exercising "her own right to make procreative choices; she is agreeing to provide a necessary and profoundly important service without (by definition) any expectation that she will raise the resulting child as her own." 19 Cal.Rptr.2d 494, 851 P.2d at 787. To the Calvert court, the choice to gestate and deliver a baby for the genetic parents pursuant to a surrogacy agreement is not the constitutional equivalent of the decision whether to bear a child of one's own; "any constitutional interests [the gestational surrogate] possesses in this situation are something less than those of a mother." Id. at 786.

However, this court is not prepared to say that a surrogate birth mother—even a surrogate birth mother who is a genetic stranger to the child born to her—is not exercising her fundamental rights, viz., her right to procreate and to make her own decisions about reproduction (e.g., whether to terminate or continue a pregnancy), or that she has no legally protected interest in her relationship to the child she has carried to term and to whom she in fact gave birth.

Pregnancy and childbirth have physiological and psychological impacts upon the person experiencing the pregnancy and giving birth to the child, whatever the genetic particulars may be. Life is process, and this extraordinary process of human [1288] childbirth implicates the fundamental procreative rights of the birth mother as well as those of the mother and father whose best efforts at procreation have furnished the embryo. See, e.g., A.H.W. v. G.H.B., 339 NJ.Super. 495, 772 A.2d 948, 952-54 (2000); Alayna Ohs, Note, The Power of Pregnancy: Examining Constitutional Rights in a Gestational Surrogacy Contract, 29 Hastings Const. L.Q. 339, 355-61 (2002) (gestational surrogacy implicates fundamental procreative rights of surrogate mother).

The question becomes whether § 76-7-204(3)(a)'s parentage rule is "narrowly tailored" to serve the State's compelling interest in protecting the interests of the gestational surrogate in her own pregnancy and her relationship with the child, taking into consideration the burden imposed upon the fundamental procreative and parental rights of the genetic/biological parents. See, e.g., Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 ("the Fourteenth Amendment `forbids the government to infringe... "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.'" (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)) (emphasis in original)); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) ("Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest.")

If accorded conclusive effect, § 76-7-204(3)(a) "could hardly be described as narrowly tailored." Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d at 1199. The statute establishes the surrogate's parental rights to the exclusion of the genetic/biological mother, and if the surrogate is married, to the exclusion of the genetic/biological father as well.^[33] No fact-specific determination of the relative fitness of the surrogate or the genetic/biological parents is required. Instead, § 76-7-204(3)(a)'s self-operative parentage rule supplants the parental rights of the genetic/biological parents by putting the surrogate (and her spouse, if any) in their place, regardless of the particular facts and circumstances surrounding each surrogacy arrangement.^[34]

The State's Other Interests

The remaining interests asserted by the State either are not "compelling" (e.g., "avoiding complicated and unsettling custody disputes"), or involve facts not presented in this case (viz., exploitation of women through surrogacy-for-profit contracts, or children becoming commodities). (Defs' Mem. at 12-23.)

Even assuming that the State has compelling interests in avoiding surrogacy for profit, Utah Code Ann. § 76-7-204(3)(a) cannot be said to be narrowly tailored to serve these interests because it affects all surrogate births, not just those entered into for profit or financial gain. No one has alleged that W.K.J.'s surrogacy was entered into for profit or gain; there is no allegation that W.K J. has been "exploited" in some fashion, or that her interest in the children has been unfairly overborne in favor of the genetic/biological parents; and [1289] none of the uncontroverted facts of this case even hints that the two children conceived by J.R. and M.R. and borne by W.K.J, have been treated as a commodity (i.e., "anything bought or sold; any article of commerce"^[35]), by anyone. Yet defendants assert that § 76-7-204(3)(a) applies to define the parental rights of W.K.J., J.R. and M.R. no less than it would in the case of a blatant surrogacy-for-profit scheme.

Utah Code Ann. § 76-7-204(3)(a) burdens the fundamental parental rights of J.R. and M.R. by attempting to abrogate them through substitution of another legal parent, and that burden cannot be justified as serving these asserted "compelling interests," particularly where they have very little bearing upon the uncontroverted facts of this case.

Conclusive Effect & "Undue Burden"

In the context of gestational surrogacy, Utah Code Ann. § 76-7-204(3)(a) establishes a rule of substantive law that genetic/biological parents—particularly genetic/biological mothers who are not the birth mother—are not qualified to raise their children and declares that they will have no parental rights or legal relationship as a parent with the children they have conceived. It mandates that the surrogate mother "is the mother of the child for all legal purposes, and her husband, if she is married, is the father of the child for all legal purposes," to the exclusion of the child's natural parents.

In doing so, § 76-7-204(3)(a) places a substantial obstacle in the path of a woman in J.R.'s position who is seeking to make procreative choices, Stenberg, 530 U.S. at 921, 120 S.Ct. 2597 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 877, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion)), and to bear and raise her own children, unduly burdening the exercise of her fundamental rights. Indeed, when the State undertakes to extinguish parental rights, "it seeks not merely to infringe that fundamental liberty interest, but to end it. `If the State prevails, it will have worked a unique kind of deprivation.... A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.'" Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

This blanket presumption is not narrowly tailored to serve the State's compelling interests in safeguarding the best interests of the child and the health, safety and procreative interests of the surrogate mother. It may be that some genetic/biological parents are unsuited to have custody of children, and in those instances, the exercise of parental rights may not be in the best interests of the child. But certainly many natural parents "are not in this category; some are wholly suited to have custody of their children," Stanley v. Illinois, 405 U.S. at 654, 92 S.Ct. 1208 (footnote omitted), and at minimum, the Due Process Clause requires the State to provide them with a fundamentally fair hearing on that question before depriving them of legal parenthood of their own children. Id, at 654-58, 92 S.Ct. 1208. As the Utah Supreme Court has explained,

[W]e conclude that the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child under Article I, § 7 and § 25, and that the United States Constitution recognizes and protects the same right under the Ninth and Fourteenth Amendments. We further conclude that, under both Constitutions, a mother is entitled to a showing of unfitness, abandonment, or [1290] substantial neglect before her parental rights are terminated.

In re J. P., 648 P.2d at 1377. Utah Code Ann. § 76-7-204(3)(a) requires no such showing on a fact-specific, case-by-case basis; it cannot be rebutted by evidence of the genetic/biological fact of parenthood, and thus cannot satisfy the requirements of Due Process.

Can Adoption Relieve the Statutory Burden on Plaintiffs' Rights?

Counsel for the defendants argues that the plaintiffs may gain the legal rights and status of parents of the children they conceived by pursuing the matter through a Utah State adoption proceeding, and any burden on their procreative and parental rights is thereby relieved:

More than twenty-four hours have passed since the birth of the twins (Utah Code Ann. §'78-30-4.19) and WKJ has the absolute legal right to irrevocably (Utah Code Ann. § 78-30-4.20) consent to their adoption by J.R. and M.R. pursuant to Utah Code Ann. § 78-30-4.14. Once she has done so, JR and MR can petition either the district or juvenile court for a decree of adoption. Utah Code Ann. § 78-30-7. Approval of such a petition would be subject only to a home study of their ability to financially and morally care for the children. Utah Code Ann. § 78-30-14.

(Defs' Mem. at 7-8.) The availability of the adoption process, counsel continues, would obviate any need for this court to decide the constitutional questions raised by plaintiffs' challenge to the statute. (Id.)

The contemplated adoption proceeding does not require a court to enforce the Agreement itself. As defense counsel suggests, W.K.J. need only agree to the termination of any parental rights she may have in favor of the adoption of the children by J.R. and M.R., and J.R. and M.R. need only present the required petitions and make the required showings that would enable a Utah state court to bring law into harmony with genetics, and grant their adoption of the children that in fact they have conceived. As counsel suggests, completing the anticipated adoption proceedings would produce the result now desired by all of the plaintiffs without running afoul of the restrictions of Utah Code Ann. § 76-7-204.

Plaintiffs concede that the adoption process is available,^[36] but argue that resort to adoption should not be required where it is uncontroverted that J.R. and M.R. are the genetic/biological parents of the children born to W.K.J. (Pltfs' Reply/Resp. Mem. at 17 n. 4 ("That they must adopt their own children rankles biological parents of a gestational surrogacy. The possibility that in an adoption the court could deny them parenthood of their own children is troublesome.").) J.R. and M.R.'s fundamental interests in parenting the children they have conceived would be burdened by the requirements of the adoption process, and by the risk, however remote, that a finding of the best interests of their children could be adverse to J.R. and M.R., resulting in a denial of parental rights.

Other courts considering the question of surrogacy in the context of adoption proceedings have found that "[gestational surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes." Johnson v. Calvert, 5 [1291] Cal.4th at 96, 19 Cal.Rptr.2d 494, 851 P.2d at 784. In Culliton v. Beth Israel Deaconess Medical Center, 435 Mass. 285, 291, 756 N.E.2d 1133, 1138 (2001), the Massachusetts Supreme Court distinguished gestational surrogacy from traditional surrogacy, in which the birth mother also contributed her own genetics, and concluded that "[a]s is evident from its provisions, the adoption statute was not intended to resolve parentage issues arising from gestational surrogacy agreements." The Utah appellate courts have yet to address this question.

Utah Code Ann. § 76-7-204(4) provides that "[n]othing in this section prohibits adoptions and adoption services that are in accordance with the laws of this state," at least implying that the parent-child relationships presumed to exist under § 76-7-204(3)(a) could be realigned in favor of the child's genetic/biological parents using the State's adoption procedure.

Resort to the adoption process to gain legal recognition of J.R. and M.R.'s parental rights, effective though it might be, still fails to account for the parent-child relationship that already exists in fact between J.R. and M.R. and the twin children they conceived, and thus continues to burden J.R. and M.R.'s fundamental parental rights in the same fashion as § 76-7-204(3)(a).

Parents who bear and raise children in the traditional way need not seek the imprimatur of the State before exercising their rights as parents, or being recognized as such by the law. The State's interest in the child's well-being "favors preservation, not severance, of natural familial bonds," Santosky, 455 U.S. at 766-67, 102 S.Ct. 1388, and the same would seem to be true of natural familial bonds that happened to be aided in their formation through use of medical technology.

Requirement of a Hearing

To say that plaintiffs need not resort to traditional adoption procedures to vindicate J.R. and M.R.'s fundamental parental rights does not mean that some form of adjudicative hearing is not required. Given the legally protected interests of both the genetic/biological parents and the gestational surrogate mother, due process would seem to require a hearing in which those interests are examined and reconciled in light of the facts. A finding of genetic consanguinity between intended parents and child, based upon the results of DNA testing or other probative evidentiary facts, would provide a factual footing for formally acknowledging the relationships that exist and serve as the basis for the registration of a supplemental birth certificate reflecting the child's true genetic/biological parentage. At the same time, the surrogate birth mother would be afforded an opportunity to assert whatever interest she may have in her relationship with the children she has borne.^[37]

One provision of the State's adoption statute may provide for such a hearing:

78-30-4.24. Determination of rights prior to adoption petition.

Any interested party may petition the court for a determination of the rights and interests of any person who may claim an interest in a child under this chapter, at any time prior to the filing of a petition for adoption, including any time prior to the child's birth.

Utah Code Ann. § 78-30-4.24 (2002).

Culliton v. Beth Israel Deaconess Medical Center involved a similar procedure in the Massachusetts courts in which the genetic [1292] biological parents, joined by the gestational surrogate, sought a prenatal declaration of maternity and paternity as to their unborn twin children, apart from the traditional adoption or paternity procedures. The Massachusetts Supreme Court held that the Probate and Family Court Department had the power to grant the relief they sought:

Here, where (a) the plaintiffs are the sole genetic sources of the twins; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment the plaintiffs agree that they have waived any contradictory provisions in the contract (assuming those provisions could be enforced in the first place), we conclude that pursuant to the Probate and Family Court's general equity jurisdiction under G.L. c. 215, § 6, the judge had authority to consider the merits of the relief sought here.

435 Mass. at 291-92, 756 N.E.2d at 1138 (footnote omitted). Culliton concluded that the traditional adoption procedure "was not intended to resolve parentage issues arising from gestational surrogacy agreements"; that the statutory paternity procedure "is simply an inadequate and inappropriate device to resolve parentage determinations of children born from this type of gestational surrogacy"; and that the state artificial insemination statute simply "does not apply." Id., 435 Mass. at 290-91, 756 N.E.2d at 1137-38. Instead, Culliton looked to the general equity jurisdiction of the court and sought to find a balance between concerns for the best interests of the child and the rights of the genetic/biological parents, who everyone acknowledged to be the parents of the twin children born to the surrogate. The Culliton court granted the relief sought by the genetic/biological parents, seeing no need to remand the matter where all parties had entered into a stipulation for the entry of a judgment, and no interested party had raised any objection: "Since the complaint was filed, the twins have been born. It is consequently now appropriate to order the entry of a judgment declaring the plaintiffs the lawful parents of the twins." Id., 435 Mass. at 295, 756 N.E.2d at 1141. A judgment was to be entered "declaring the plaintiffs as the legal parents of the children" and ordering that plaintiffs' names be placed on the applicable records of birth, "listing the plaintiffs as the mother and father, respectively, of the children." Id., 435 Mass. at 296, 756 N.E.2d at 1141.

Culliston offers helpful guidance for the satisfactory resolution of the controversy in this case. Entry of an order establishing J.R. and M.R.'s relationship to their twin children through a proceeding under Utah Code Ann. § 78-30-2.24 would afford the legal recognition they seek for their parental relationship with their children, and would furnish a basis for issuance of supplementary birth certificates under Utah Code Ann. § 26-2-10 (1998)^[38] listing [1293] J.R. and M.R. as the mother and father of the children.

The only significant obstacle is § 76-7-204(3)(a)'s presumption that W.K.J, is the "mother of the childfren] for all legal purposes," if that presumption is to be given conclusive effect.

RELIEF TO WHICH PLAINTIFFS ARE ENTITLED

This court concludes that Utah Code Ann. § 76-7-204(3)(a)'s presumption that W.K.J, as a surrogate mother is the "mother of the child for all legal purposes" cannot lawfully be given preclusive or conclusive effect in the light of evidence that J.R. and M.R. are in fact the genetic/biological parents of the twin children that W.K.J. gave birth to in January of 2000. Giving § 76-7-204(3)(a) any preclusive or conclusive effect with reference to J.R. and M.R. would unduly burden J.R. and M.R.'s fundamental rights of to bear and raise children as guaranteed by both the United States Constitution and the Utah Constitution. That burden is neither necessary to, nor narrowly tailored to serve any compelling State interest; and the statute is not readily susceptible to a narrowing construction that would avoid the collision between this legislative act and the plaintiffs' fundamental rights.

Plaintiffs are entitled to a declaratory judgment that Utah Code Ann. § 76-7-204(3)(a) is unconstitutional as applied to J.R. and M.R. to the extent that § 76-7-204(3)(a)'s rule of parentage would be given preclusive or conclusive effect in any state court proceeding or other setting in which J.R. and M.R. seek legal recognition of their parental relationship with the twin children born to W.K.J. in January, 2000, based upon evidence that J.R. and M.R. are the genetic/biological parents of the children.

Section 76-7-204(3)(a) may legitimately presume in the first instance that W.K.J., as the birth mother of the twin children born in January of 2000, is their mother, as indeed the law would routinely presume as to all birth mothers at the moment of childbirth. Upon presentation of evidence of genetic consanguinity between those children and J.R. and M.R., however, that presumption must dissolve and be given no further force or effect. Otherwise, the effect of the statute would be that of a rule of substantive law denying legal recognition to the uncontroverted fact of J.R. and M.R.'s parentage of the two children, unduly burdening and frustrating J.R. and M.R.'s exercise of their constitutionally guaranteed fundamental rights to maintain that relationship and to raise their own children.

In so ruling, this court simply follows in the footsteps of the Utah Supreme Court in cases such as In re J.P., which eloquently reaffirmed these fundamental rights to bear and raise children in the most emphatic of terms, and held them to be protected by both the United States Constitution and the Utah Constitution. In so ruling, this court also follows decisions of the United States Supreme Court that have consistently "held that the fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters as procreation, childrearing, marriage, and contraceptive choice," cases that "embody the principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reach of government." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 926-27, 112 S.Ct. 2791, 120 L.Ed.2d [1294] 674 (1992) (Blackmun, J., concurring in part) (citing Eisenstadt, 405 U.S. at 453, 92 S.Ct. 1029).

The Court has long held that limitations on these fundamental rights are permissible only if they survive "strict" constitutional scrutiny—that is, only if the governmental entity imposing the restriction can demonstrate that the limitation is both necessary and narrowly tailored to serve a compelling governmental interest. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The defendants have made no such showing in favor of § 76-7-204(3)(a)'s parentage rule that would justify it being given any conclusive effect.

Application of § 76-7-204(3)(a)'s parentage rule in this case may also run afoul of the Fourteenth Amendment's guarantee of equal protection of the laws, at least to the extent that under Utah law and administrative practice, M.R. can be listed as the father on the birth certificates of the children born to W.K.J., an unmarried woman, but J.R. cannot be listed as their mother. The equal protection problems that arise in that scenario have been examined with some care in Soos v. Superior Court, 182 Ariz. 470, 897 P.2d 1356 (1994), which held that a state statute violated the Fourteenth Amendment's Equal Protection Clause when it permitted a genetic/biological father to prove paternity, but did not allow for a genetic/biological mother to prove maternity. Instead, it automatically granted a gestational carrier surrogate the status of legal mother. The Soos court concluded that the State's statute affected fundamental liberty interests of parental rights and thus was subject to a strict scrutiny analysis. Soos held that the State had not shown any compelling interest to justify the dissimilar treatment of men and women similarly situated (the biological father and the biological mother of the same child), and therefore, that the statute was unconstitutional. Id., 182 Ariz, at 474-75, 897 P.2d at 1360-61.

This court is satisfied that Soos is well reasoned and that its conclusion is sound. The State may not close its eyes to the fact of a parental relationship simply because the parent happens to be a woman. This problem may be avoided, however, if § 76-7-204(3)(a)'s parentage rule is not given any preclusive or conclusive effect.^[39]

Severability of § 76-7-204(3)(a)

Counsel for the defendants suggests that if a portion of § 76-7-204 is invalidated, the remainder of the statute should stand unaffected. (Defs' Mem. at 31.) Plaintiffs respond that § 76-7-204 contains no "savings clause," that "there is no basis for severability" of § 76-7-204's provisions, and that the entire statute may be "declared to be unconstitutional and invalid." (Pltfs' Reply/Resp. Mem. at 6-7.)

In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985), the Court reversed the facial invalidation of a state statute according to the "normal rule that partial, rather than facial, invalidation is the required course." Id. at 504, 105 S.Ct. 2794. Noting that "the same statute may be in part constitutional and in part unconstitutional," the Brockett Court held that "if the parts are wholly independent of each other, that which is constitutional may stand while [1295] that which is unconstitutional will be rejected." Id. at 502, 105 S.Ct. 2794.

More recently, the Tenth Circuit echoed Brockett in explaining that "[i]f the language of a statute is not readily susceptible to a narrowing construction, but the unconstitutional language is severable from the remainder of the statute, `that which is constitutional may stand while that which is unconstitutional will be rejected.'" Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d at 1194 (quoting Brockett, 472 U.S. at 502, 105 S.Ct. 2794 (internal quotations omitted)).

"In order to determine whether partial invalidation of a state statute is appropriate, federal courts look to state law." Id. at 1195 (citing Brockett, 472 U.S. at 506-07, 105 S.Ct. 2794); Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996) (per curiam) (severability is an issue of state law). Under Utah law, "When reviewing the construction of statutes, `[t]he general rule is "that statutes, where possible, are to be construed so as to sustain their constitutionality. Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done."'" State v. Lopes, 1999 UT 24, ¶¶ 18, 980 P.2d 191 (quoting Celebrity Club, Inc. v. Utah Liquor Control Comm'n, 657 P.2d 1293, 1299 (Utah 1982)). Gallivan v. Walker, 54 P.3d 1069,1098 (Utah 2002).

In determining if an unconstitutional subsection is severable from its umbrella statute, "we look to legislative intent." Id. at ¶¶ 19. When the legislature's intent is not expressly stated, we "turn to the statute itself, and examine the remaining constitutional portion of the statute in relation to the stricken portion." Id. Upon reviewing the statute as a whole and its operation absent the offending subsection, "[i]f the remainder of the statute is operable and still furthers the intended legislative purpose, the statute will be allowed to stand." Id.; see also Berry v. Beech Aircraft Corp., 717 P.2d 670, 686 (Utah 1985) ("Severability, where part of an act is unconstitutional, is primarily a matter of legislative intent[,] which generally is determined by whether the remaining portions of the act can stand alone and serve a legitimate legislative purpose." (citations omitted, alteration in original)); Stewart v. Pub. Serv. Comm'n, 885 P.2d 759, 779-80 (1994); Union Trust Co. v. Simmons, 116 Utah 422, 429, 211 P.2d 190, 193 (1949). In Union Trust Co., we further noted that "[t]he test fundamentally is whether the Legislature would have passed the statute without the objectionable[, i.e., the unconstitutional] part...." 116 Utah at 429, 211 P.2d at 193; see also Berry, 111 P.2d at 686.

Id. In Utah, then, the test is "whether the legislature would have passed the statute without the objectionable part...." American Target Advertising, Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir.), cert, denied, 531 U.S. 811, 121 S.Ct. 34, 148 L.Ed.2d 14 (2000).

"Frequently the courts are aided in the determination of legislative intent by the inclusion within a statute of a `saving clause.'" Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 779 (Utah 1994) (quoting Union Trust Co. v. Simmons, 116 Utah 422, 211 P.2d 190, 193 (1949)). Id. But as plaintiffs point out, there is no saving clause in § 76-7-204 to aid our interpretation. "Therefore, we must look to whether the statutory provisions `are so dependent upon each other that the court should conclude the intention was that the statute be effective only in its entirety.'" Id. (quoting Stewart, 885 P.2d at 779).

If § 76-7-204(3)(a)'s parentage rule is struck down to the extent it would otherwise have conclusive effect, this court must [1296] decide "whether the remaining sections [of the statute], standing alone, will further the legislative purpose." Stewart, 885 P.2d at 779.

Subsections (1), (2), (3)(b) and (5) of § 76-7-204 deal with the enforceability and legal consequences of surrogacy contracts. As explained above, the validity of these provisions is an issue that this court is not called upon to address at this point in this case. Subsection (4), stating that "[n]othing in this section prohibits adoptions and adoption services that are in accordance with the laws of this state" seems unlikely to engender any constitutional controversy at all.

This court has reviewed the statute as a whole, and it appears that the "contract" subsections and the "adoptions" subsection of § 76-7-204, "standing alone, will further the legislative purpose" of precluding the enforcement of surrogacy contracts in cases in which such arrangements fall into dispute, and may continue to do so without the aid of the conclusive effect of § 76-7-204(3)(a)'s parentage rule.

In reaching this conclusion, the court is expressing no view as to the validity or unconstitutionality of these subsections. The court is only concluding that these provisions may stand alone, for whatever value they may have, and that the Legislature probably would have enacted them even without giving the § 76-7-204(3)(a) parentage rule conclusive effect.

To the extent, then, that § 76-7-204(3)(a) may be denied conclusive effect under the United States Constitution and the Utah Constitution, the balance of § 76-7-204(1), (2), (3)(b), (4) and (5) appear to be severable from the affected subsection and do not depend upon § 76-7-204(3)(a) to achieve their purposes.

CONCLUSION

In this case, there is no genuine issue of material fact that plaintiffs J.R. and M.R. are the genetic/biological mother and father of twin children to whom plaintiff W.K.J. gave birth in January of 2002. As genetic/biological parents of children carried by a gestational carrier surrogate birth mother, J.R. and M.R. have a parent-child relationship with those children to which their fundamental constitutionally protected liberty interests apply. Utah Code Ann. § 76-7-204(3)(a) unduly burdens J.R. and M.R.'s fundamental liberty interests to the extent that it conclusively deems W.K.J. to be "the mother of the child[ren] for all legal purposes," to the exclusion of J.R. and M.R.'s "rights to conceive and raise one's children," Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. 1208, without unwarranted governmental interference.

J.R. and M.R. are entitled to declaratory relief pursuant to 42 U.S.C. § 1983 (2000) and 28 U.S.C. § 2201 (2000) in the form of a judgment that Utah Code Ann. § 76-7-204(3)(a) is unconstitutional as applied to J.R. and M.R. to the extent that it limits or precludes in any way the legal recognition or exercise of J.R. and M.R.'s fundamental rights as parents to raise the children they have conceived. By conclusively presuming W.K.J, to be "the mother of the child[ren] for all legal purposes," and thereby excluding J.R. from recognized legal motherhood of the children from and after the moment of their birth, § 76-7-204(3)(a) oversteps the limits on legislative power imposed by both the United States Constitution and the Utah Constitution in favor of the protection of fundamental liberty interests. U.S. CONST., Amends. IX, XIV; UTAH CONST. Art. I, §§ 7, 25. Upon the presentation of evidence in an appropriate forum establishing J.R. and M.R.'s genetic/biological relationship to the children born to W.K.J., § 76-7-204(3)(a) can have no binding force or effect on the legal [1297] recognition or enforcement of J.R. and M.R.'s parental rights.

J.R. and M.R.'s fundamental liberty interests in their parental relationship with their children arises from the fact of the biological parent-child relationship, independent of any grant of right, privilege or designation of status by the State. As cases such as In re J.P. instruct, J.R. and M.R.'s parental rights may be extinguished only upon clear and convincing evidence supporting an individualized finding of unfitness, abandonment or other sufficient grounds at a hearing meeting the requirements of the Due Process Clause of the Fourteenth Amendment, and Article I, § 7 of the Utah Constitution; they may not be supplanted or pre-empted by legislative act deeming a gestational surrogate mother to be the "mother of the child[ren] for all legal purposes."

Even as it is called upon to consider new questions thrust upon it by the advent of new technology, the Legislature, no less than the court, must keep the fundamental liberty interests of the people clearly in mind: "[T]he ideals of individual liberty which ... protect the sanctity of one's home and family" are "essential in a free society...." In re Castillo, 632 P.2d 855, 856 (Utah 1981). "`To protect the (individual) in his constitutionally guaranteed right to form and preserve the family is one of the basic principles for which organized government is established...."' In re J.P., 648 P.2d at 1372, 1373 (quoting Lacker v. Venus, 177 Wis. 558, 569, 188 N.W. 613, 617, 24 A.L.R. 403, 409 (1922)). As the Utah Constitution so wisely reminds us all, "Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." UTAH CONST. Art. I, § 27.

* * *

This court need not examine the constitutionality of the remaining subsections of § 76-7-204 because they are not in controversy in this action; any evaluation of their respective validity would at this point be purely advisory. Plaintiffs concede they lack standing to challenge § 76-7-204(1), and this court can find no existing dispute among these parties arising under their Agreement that would call into question § 76-7-204(2), (3)(b) or (5). Beyond that, § 76-7-204(4) is purely declarative that existing adoption laws remain undisturbed. Having determined that these provisions are severable from § 76-7-204(3)(a), this court's ruling leaves these remaining provisions essentially undisturbed, and plaintiffs' Complaint is dismissed as to § 76-7-204(1), (2), (3)(b), (4) and (5) without prejudice for lack of an existing case or controversy within the meaning of Article III of the United States Constitution.^[40] This court likewise sees no need to decide the validity of plaintiffs' In Vitro/Surrogate Implantation Agreement, and declines plaintiffs' invitation to do so for substantially the same reason, the lack of an existing case or controversy.^[41]

[1298] This court defers on plaintiffs' request for injunctive relief forbidding the defendant state officers to comply with or enforce Utah Code Ann. § 76-7-204(3)(a), and requiring that the Utah Office of Vital Records and Statistics issue birth certificates for the plaintiffs' children "reciting that J.R. and M.R. are the parents of the children," pending further hearing on whether "[f]urther necessary or proper relief based on a declaratory judgment" need be granted against "any adverse party whose rights have been determined by such judgment," pursuant to 28 U.S.C. § 2202 (2000). These are questions of remedy rather than substantive right, and a further showing of a threat of irreparable harm may need to be made before such relief is granted.^[42]

The declaratory relief set forth herein may well prove to be sufficient to vindicate the plaintiffs' fundamental liberty interests in their relationship with their own children, particularly where it appears that an appropriate state proceeding may be initiated to obtain recognition of that relationship—recognition by a state court that may well be sufficient to bring about the issuance of supplemental birth certificates with the form and content that plaintiffs seek.

Plaintiffs thus may be able to achieve their purposes without further direct intervention by this court into the workings of the government of the State of Utah.

Plaintiffs having demonstrated that there exists no genuine issue of material fact and that they are entitled—at least in part—to judgment as a matter of law, and the court having determined that there is no existing case or controversy as to the remainder of plaintiffs' claims,

IT IS ORDERED that the plaintiffs' motion for summary judgment is GRANTED IN PART as to the constitutionality of Utah Code Ann. § 76-7-204(3)(a), as applied to plaintiffs J.R. and M.R. and to the extent explained above, and DENIED IN PART as to the remainder of plaintiffs' substantive claims; plaintiffs' claims concerning the constitutionality of the balance of § 76-7-204(1), (2), (3)(b), (4) and (5) are DISMISSED WITHOUT PREJUDICE for want of an existing case or controversy; and that defendants' motion for summary judgment is DENIED.

[1] Plaintiffs exhibits were separately filed under the case caption, but without the authenticating affidavits contemplated by Fed.R.Civ.P. 56(e). See, e.g., T.J. Smith & Nephew, Ltd. v. Parke, Davis & Co., 623 F.Supp. 808, 813 (D.Utah 1985); 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2722, at 382-84 & nn. 40-42 (3d ed.1998). Absent objection by the defendants, and given the nature of the particular items submitted, this court has treated the plaintiffs' exhibits as authentic for the purposes of the pending summary judgment motions, but only for that purpose. See id. § 2722, at 384 & n. 43.

[2] See "IN VITRO/SURROGATE IMPLANTATION AGREEMENT," dated February 25, 1999 (the "Agreement"), annexed to Exhibit re: Surrogacy Agreement, filed September 16, 2002 (dkt. no. 47).

[3] This nomenclature is suggested by Adam P. Plant, Commentary, with a Little Help from My Friends: the Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical Advancement, 54 Ala. L.Rev. 639, 640-41 & n. 6 (2003).

[4] W.K.J, made additional promises, from agreeing to "adhere to a healthy diet," to follow "all medical instructions given to her," to abstain from "dangerous sports or activities," smoking cigarettes, drinking alcohol, engaging in "any `unsafe' sexual activity," or using illegal drugs, to submitting to medical and psychological evaluations and waiving confidentiality as to any reports or diagnoses. (Agreement at 2, 3.)

[5] Curiously, both plaintiffs and defendants assert that "[n]o contractual consideration was exchanged between W.K.J, and J.R. and M.R. as part of the Agreement." (Plaintiffs' Statement of Undisputed Facts re: Motion for Summary Judgment, filed May 7, 2002 (dkt. no. 26), at 6 ¶ 20; accord, Complaint at 6 ¶ 20; see Defs' Mem. at 8 ("Under the general rules of contract law, this agreement is not supported by consideration.").) The Court, on the other hand, finds itself at a loss to describe the parties' mutual exchange of promises in any other way-assuming that the parties intended their Agreement to be binding. See, e.g., Resource Management Co. v. Weston Ranch and Livestock Co., Inc., 706 P.2d 1028, 1036 (Utah 1985) ("Consideration is an act or promise, bargained for and given in exchange for a promise."). Plaintiffs may simply be trying to plead within Utah Code Ann. § 76-7-204(2) (referring to "[a]n agreement which is entered into, without consideration given").

[6] By its express terms, the Agreement "will be governed and interpreted by California law" and all parties "specifically submit to the jurisdiction of the California courts in resolving any dispute." (Agreement at 7 ¶ 22.) It also incorporates an arbitration clause requiring that "[a]ny and all disputes relating to this Agreement or breach thereof shall be settled by arbitration in the State of Utah, in accordance with the then-current rules of the American Arbitration Association, ..." (Id. at 7 ¶ 26.) These provisions appear to contradict each other.

[7] "[T]he usual understanding of `family' implies biological relationships, and most decisions treating the relation between parent and child have stressed this element. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), for example, spoke of `[t]he rights to conceive and to raise one's children' as essential rights, ..." Smith, 431 U.S. at 843, 97 S.Ct. 2094.

[8] However, as Chief Justice Stone observed in Skinner, "There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned. ..." 316 U.S. at 544, 62 S.Ct. 1110 (Stone, C.J., concurring).

[9] In Santosky, even the dissenting Justices did not dispute the principle that "the interest of parents in their relationship with' their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment." 455 U.S. at 774, 102 S.Ct. 1388 (Rehnquist, White, O'Connor, JJ. & Burger, C.J., dissenting).

[10] Both Stenberg and Casey examine procreative choice in the context of abortion procedures, but offer helpful guidance in this context as well. To give effect to the Fourteenth Amendment's guarantee of "the equal protection of the laws," the constitution's protection of procreative choice must be at least as vigorous when a woman decides to give birth to a child as when she decides not to do so. U.S. CONST., Amend. XIV, § 1. A state-imposed burden on affirmative procreative choice must therefore withstand the same degree of scrutiny as a state-imposed burden on the choice to seek an abortion.

[11] In this case, conception occurred and gestation began in California, a state that recognizes gestational surrogacy as a lawful procreative procedure. The State of Utah's concern under § 76-7-204 in this case is with the end result of that procedure, the live birth, care and custody of two children who are the genetic and biological offspring of J.R. and M.R.

[12] In their reply memorandum, plaintiffs concede that they lack standing to challenge the "contract for profit or gain" provisions of Utah Code Ann. § 76-7-204(1) (1999) because "plaintiffs did not enter in to a surrogacy `contract for profit or gain.' " (Pltfs' Reply/Resp. Mem. at 2 ¶ 2.) They also acknowledge that their Agreement "recites sufficient mutual promises to form a binding contract." (Id. at 5.) See note 5, supra.

[13] This case stands in striking contrast to the prior reported cases dealing with surrogacy issues, many of which involved a custody dispute between surrogate mother and a genetic parent. See Annotation, Determination of status as legal or natural parents in contested surrogacy births, 2000 WL 511488, 77 A.L.R. 5th 567 (2000), and cases discussed therein; Johnson v. Calvert, 5 Cal.4th 84, 19 Cal. Rptr.2d 494, 851 P.2d 776 (1993); In re Baby M, 109 N.J. 396, 537 A.2d 1227, 1253, 77 A.L.R. 4th 1 (1988).

[14] Ironically, as plaintiffs point out, if § 76-7-204 is enforced according to its terms, "neither the surrogate nor the state can force the biological or intended parents to take responsibility for the child they formerly wanted and helped create." (Pltfs' Reply/Resp. Mem. at 15.) Recognition of the genetic/biological parents' relationship to the child born to the surrogate, on the other hand, brings with it parental responsibilities as well as parental rights.

[15] This circumstance is not the one presented in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), in which a plurality of the Court upheld a California statute that established an irrebuttable presumption that a child born to a married woman living with her husband, who is neither impotent nor sterile, is a child of the marriage, observing that the presumption furthered "our traditions" that "have protected the marital family against the sort of claim" asserted by Michael H., a stranger to the marriage who asserted paternity of the couple's child, Victoria. 491 U.S. at 124, 109 S.Ct. 2333 (Scalia, O'Connor, Kennedy, JJ. & Rehnquist, C.J.).

[16] "Traditional surrogacy," in which the surrogate mother contributes her own ova to the effort along with carrying the pregnancy to term and giving birth, is not new; as a procreative method, it has been known for centuries. See, e.g., Genesis 16:1-4, 15; 30:1-10.

[17] Elliot Coal Min. Co., Inc. v. Director, Office of Workers' Compensation Programs, 17 F.3d 616, 631 (3rd Cir.1994) ("additional support for our parsing of the text of the Act . . . can be found in the `mischief rule, discussed in the venerable Heydon's Case, 76 Eng. Rep. 637 (Ex.1584). That canon of construction directs a court to look to the `mischief and defect' that the statute was intended to cure. Id. at 638.")

[18] Indeed, "Most surrogacy laws assume that the `surrogate' birth mother is genetically related to the child; they thus fail to address the increasingly common phenomenon of gestational surrogacy." Garrison, Law Making for Baby Making, supra, at 852.

[19]

It is well settled that federal courts have the power to adopt narrowing constructions of federal legislation. See, e.g., New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 3361, n. 24, 73 L.Ed.2d 1113 (1982); United States v. Thirty-Seven Photographs, 402 U.S. 363, 368-370, 91 S.Ct. 1400, 1404-1405, 28 L.Ed.2d 822 (1971). Indeed, the federal courts have the duty to avoid constitutional difficulties by doing so if such a construction is fairly possible. See, e.g., Ferber, supra, 458 U.S. at 769 n. 24, 102 S.Ct. at 3361 n. 24; Thirty-Seven Photographs, supra, 402 U.S. at 369, 91 S.Ct. at 1404; Schneider v. Smith, 390 U.S. 17, 26, 27, 88 S.Ct. 682, 687-688, 19 L.Ed.2d 799 (1968).

Boos v. Barry, 485 U.S. 312, 330-31, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). See also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893 (1937) ("The cardinal principle of statutory construction is to save and not to destroy."). To some extent, this duty extends to state statutes as well. See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) ("[A] state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts"); Frisby v. Schultz, 487 U.S. 474, 482, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

[20] Counsel for the defendants recites that "it is a basic rule of construction ... to construe the statute in such a way as to avoid the conclusion that it is unconstitutional," (Defs' Mem. at 3), but does not suggest a narrowing construction of § 76-7-204(3)(a) that would avoid the constitutional problem.

[21] Commentators viewing the Utah surrogacy statute in the context of other state statutes involving surrogacy have read § 76-7-204 as embracing gestational surrogacy as well as surrogate parentage of the kind addressed in Baby M. See, e.g., Adam P. Plant, Commentary, with a Little Help from My Friends: the Intersection of the Gestational Carrier Surrogacy Agreement, Legislative Inaction, and Medical Advancement, 54 Ala. L.Rev. 639, 650 & n. 77 (2003). At the same time, one author suggests that "if a state uses an alternate statutory construction that avoids the problems presented in" cases such as Soos v. Superior Court, 182 Ariz. 470, 897 P.2d 1356 1994), then the prohibition of surrogacy contracts "could potentially be upheld." Id. at 651. Construing § 76-7-204(3)(a) as applying only to genetic/biological surrogate mothers would avoid the equal protection problem raised in Soos under a statute that prevented the genetic/biological mother from establishing her own maternity apart from the gestational surrogate.

[22] The first in vitro fertilization birth occurred in 1978 in the United Kingdom. Garrison, supra, at 848 & n. 56.

[23] "While the Court has not described the exact parameters of the right to maintain family relationships, it clearly has indicated that regulation of these relationships must be justified by an overriding state interest." 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 18.28, at 584-85 (3d ed.1999) (footnote omitted).

[24] The defendants assert that

[i]f enforceable, surrogacy contracts would permit the intending parents, whose motivations for entering into the contract are driven by their desire to have and raise a child, to unilaterally and irrevocably determine the parentage and custody of the child or children born through such an arrangement.. . . Contrary to Utah law and public policy, however, this determination is made without considering whether the intending parents are "financially able and morally fit to have the care, supervision and training of the child."

(Defs' Mem. at 16 (quoting Utah Code Ann. § 78-30-9 (2002)).) Of course, for the many married couples that choose to conceive and bear a child without relying on a gestational surrogate, these considerations are routinely entrusted to their own judgment, without any state intervention.

[25] Utah courts speak of "those numerous factors which must be weighed in determining the `best interests of the child.' " Smith v. Smith, 726 P.2d 423, 425 (Utah 1986); see, e.g., Hutchison v. Hutchison, 649 P.2d 38 (Utah 1982):

Some factors the court may consider in determining the child's best interests relate primarily to the child's feelings or special needs: the preference of the child; keeping siblings together; the relative strength of the child's bond with one or both of the prospective custodians; and, in appropriate cases, the general interest in continuing previously determined custody arrangements where the child is happy and well adjusted. Other factors relate primarily to the prospective custodians' character or status or to their capacity or willingness to function as parents: moral character and emotional stability; duration and depth of desire for custody; ability to provide personal rather than surrogate care; significant impairment of ability to function as a parent through drug abuse, excessive drinking, or other cause; reasons for having relinquished custody in the past; religious compatibility with the child; kinship, including, in extraordinary circumstances, stepparent status; and financial condition. (These factors are not necessarily listed in order of importance.)

Id. at 42 (footnotes omitted).

[26] As one commentator cogently observes, "A so-called presumption which cannot be rebutted by evidence is not a presumption but a rule of substantive law." Michael H. Graham, Handbook of Federal Evidence § 301.9, at 106 (3d ed.1991). Indeed, "[t]he use of the terms irrebuttable and conclusive presumption, referring solely to rules of law and not presumptions, should be discontinued as useless and confusing." Id. (footnote omitted).

[27] Reasoning that "a natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right," 455 U.S. at 758-59, 102 S.Ct. 1388 (internal quotation marks omitted) the Santosky Court required a standard of proof that "reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." Id. at 755, 102 S.Ct. 1388.

Under the conclusory rule of § 76-7-204(3)(a), the risk of error falls entirely upon the genetic/biological parents.

[28] The defendants' assertion that § 76-7-204(3)(a)'s parentage rule protects the child against abandonment by his genetic/biological parents presupposes that "positive, nurturing parent-child relationships" will not exist between the genetic/biological parents and the child they have gone to such great lengths to produce. This seems counter-intuitive, at minimum, and clearly does not correspond to the facts in this case.

[29] What a far different experience life would be if the State undertook to issue children to people in the same fashion that it now issues driver's licenses. What questions, one wonders, would appear on the written test?

[30] Yet that appears to be exactly what § 76-7-204(3)(b) tries to do:

(b) In any custody issue that may arise under Subsection (1) or (2), the court is not bound by any of the terms of the contract or agreement but shall make its custody decision based solely on the best interest of the child.

Utah Code Ann. § 76-7-204(3)(b) (emphasis added). It would seem exceedingly difficult to sustain this provisions in light of In re J.P. and its progeny. However, because there is no "custody issue" arising under the Agreement between the parties to this action, the court need not decide the validity of § 76-7-204(3)(b) at this time.

[31] Cf. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Blackmun, J., concurring in part) ("This assumption-that women can simply be forced to accept the 'natural' status and incidents of motherhood—appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724-726, 102 S.Ct. 3331, 3336-3337, 73 L.Ed.2d 1090 (1982); Craig v. Boren, 429 U.S. 190, 198-199, 97 S.Ct. 451, 457-458, 50 L.Ed.2d 397 (1976)." (footnote omitted)).

[32] The gestational surrogate birth mother contended that she was the mother by reason of having given birth to the child, see Cal. Civil Code § 7003; the genetic parents contended that their paternity/maternity was established by blood tests, see Cal. Civil Code § 7015.

[33] In doing so, the § 76-7-204(3)(a) presumption may collide with the existing rule of Utah law that as "between a natural parent and a nonparent, we begin with the presumption that placing a child with his or her natural parent is in the child's best interests." State of Utah in the Interest of J.M., 940 P.2d 527, 530 (Utah Ct.App.1997).

[34] Plaintiffs suggest that "[n]arrowly tailored alternatives are readily available," such as judicial oversight of surrogacy arrangements or a post-natal proceeding for "a judicial acknowledgment of parentage." (Pltfs' Reply/Resp. Mem. at 17.)

[35] Webster's New World Dictionary 281 (3d. coll. ed.1991).

[36] That an adoption proceeding may be required to conclusively establish J.R. and M.R.'s parental relationship to the children was expressly contemplated by these parties, as plainly reflected in the second paragraph of the Agreement: "the parties have been advised that under Utah law, it is illegal for any party to profit or gain from a surrogacy arrangement and that an adoption may be required to establish the intended parents as the legal parents of the surrogate child." (Agreement at 1 (emphasis added).)

[37] If and when the day comes that in vitro fertilization is followed by in vitro gestation, and ultimately by in vitro birth of a live human child, then the interests of the birth mother will no longer be at issue because no surrogate will be required. Until then, the law will likely continue to protect the procreative rights of everyone involved.

[38] Section 26-2-10 provides, in pertinent part:

26-2-10. Supplementary certificate of birth.

(1) Any person born in this state . . . whose parentage has been determined by any U.S. state court .. . having jurisdiction,... may request the state registrar to register a supplementary certificate of birth on the basis of that status.

(2) The application for registration of a supplementary certificate may be made by the person requesting registration, if he is of legal age, by a legal representative, or by any agency authorized to receive children for placement or adoption under the laws of this or any other state.

(3) (a) The state registrar shall require that an applicant submit identification and proof according to department rules....

(4) (a) After the supplementary certificate is registered, any information disclosed from the record shall be from the supplementary certificate.

(b) Access to the original certificate and to the evidence submitted in support of the supplementary certificate are not open to inspection except upon the order of a Utah district court or as provided under Section 78-30-18.

[39] Plaintiffs assert that the law should do its best to recognize the legal existence of essential human relationships where those relationships exist in actual fact, and that public records, particularly vital records such as birth certificates, should be unfailingly accurate in the information they report. Both parent and child have an interest in having the child's birth certificate reflect their relationship.

The State also has a significant interest in the accuracy of the records it keeps, particularly vital records like birth certificates.

[40] This disposition may be variously phrased as a lack of standing on the part of the plaintiffs, or a lack of subject matter jurisdiction on the part of this court, but the end result is the same. Those provisions await adjudication on another day.

Though these claims are dismissed, the defendants have not made the requisite showing that they are entitled to judgment as a matter of law on the merits of these claims and their motion for summary judgment must be denied. As is true of plaintiffs' claims, this court lacks jurisdiction to decide the merits of defendant's Rule 56 motion beyond the question presented by § 76-7-204(3)(a).

[41] W.K.J. appears as a plaintiff in this action, but pleads no discrete "injury in fact" resulting from the fact that § 76-7-204(3)(a) deems her to be the legal mother of the children born to her in January of 2000. It should come as no surprise to her that the State of Utah presumes in the first instance that the birth mother is the mother of children to whom she has given birth. Nothing now before this court suggests that W.K.J, is not free to relinquish her parental rights in favor of J.R. and M.R., as apparently she has planned to do. Absent some more particularized showing of injury-in-fact flowing from the challenged statute, this court likely must also dismiss her claim for lack of standing.

[42] This court likewise defers the question of an award of nominal damages and statutory attorney's fees and costs (42 U.S.C. § 1988) for further consideration at an appropriate time and upon an appropriate record.

[68] Bernard E. Clair of counsel (Karen Golden on the brief; Rosenman & Colin, L. L. P., attorneys), for plaintiffs.

[69] Jay L.T. Breakstone of counsel (David H. Cohen and Ivan L. Tantleff on the brief; Tantleff, Cohen & Tantleff, P. C., and The Breakstone Law Firm, P. C., attorneys), for defendants.

WILLIAMS, J.P., TOM, ELLERIN and ANDRIAS, JJ., concur.

OPINION OF THE COURT

SAXE, J.

This appeal concerns a tragic mix-up at a fertility clinic through which a woman became a "gestational mother" to another couple's embryo, when the embryo was mistakenly implanted into the wrong woman's uterus. Since a determination of the issues presented may have far-ranging consequences, we attempt here to ensure that our holding is appropriately limited.

FACTS

In April 1998, plaintiffs Deborah Perry-Rogers and Robert Rogers began an in vitro fertilization and embryo transfer program with the In Vitro Fertility Center of New York. However, in the process, embryos consisting entirely of the Rogerses' genetic material were mistakenly implanted into the uterus of defendant Donna Fasano, along with embryos from Ms. Fasano's and her husband's genetic material. It is undisputed that on May 28, 1998 both couples were notified of the mistake and of the need for DNA and amniocentesis tests. The Rogerses further allege, and the Fasanos do not deny, that the Fasanos were unresponsive to the Rogerses' efforts to contact them.

On December 29, 1998, Donna Fasano gave birth to two male infants, of two different races. One, a white child, is concededly the Fasanos' biological child, named Vincent Fasano. The other, initially named Joseph Fasano, is a black child, who subsequent tests confirmed to be the Rogerses' biological son, now known as Akeil Richard Rogers.

The Fasanos took no action regarding the clinic's apparent error until the Rogerses, upon discovering that Ms. Fasano had given birth to a child who could be theirs, located and commenced an action against them.

PROCEDURAL HISTORY OF THE LITIGATION

On March 12, 1999, the Rogerses commenced a Supreme Court action against the Fasanos as well as the fertility clinic and its doctors. As against the medical defendants, the complaint alleged medical malpractice and breach of contract; as against the Fasanos, it sought a declaratory judgment declaring [70] the rights, obligations and relationships of the parties concerning Akeil.

On April 1 and April 2, 1999, DNA testing was conducted. The results of the test, issued on April 13, 1999, established that the Rogerses were the genetic parents of Akeil. However, according to Ms. Perry-Rogers, the Fasanos agreed to relinquish custody of Akeil to the Rogerses only upon the execution of a written agreement, which entitled the Fasanos to future visitation with Akeil. Ms. Perry-Rogers states that during the period between Akeil's birth on December 29, 1998 and May 10, 1999, the Fasanos only permitted her two brief visits with Akeil, and that she felt compelled to sign the agreement in order to gain custody of her son. The agreement, executed April 29, 1999, contains a visitation schedule providing for visits one full weekend per month, one weekend day each month, one week each summer, and alternating holidays. The agreement also contained a liquidated damages clause, providing that a violation of the Fasanos' visitation rights under the agreement would entitle them to $200,000.

On May 5, 1999 the Fasanos signed affidavits acknowledging that the Rogerses were the genetic parents of the infant, and consenting to the entry of a final order of custody of the child in favor of the Rogerses and to an amendment of the birth certificate naming the Rogerses as the biological and legal parents of the infant. On May 10, 1999, the Fasanos turned over custody of Akeil to the Rogerses, and the following day, May 11, 1999, counsel for the parties signed a stipulation discontinuing with prejudice the plenary action as against the Fasanos.

Despite the discontinuance, by order to show cause dated May 25, 1999, using the same index number of the plenary action, the Rogerses served a petition seeking a declaratory judgment against the Fasanos, naming the Rogerses as Akeil's legal and biological parents, granting them sole and exclusive custody, and permitting them to amend the birth certificate to reflect Akeil's biological heritage. Their application made no mention of the April 29, 1999 visitation agreement. The Fasanos submitted no opposition to the application, and the court granted the application without opposition in a decision dated June 7, 1999, directing settlement of an order.

The Fasanos then sought vacatur of the June 7, 1999 decision on the grounds that the Rogerses had failed to inform the court of the April 29, 1999 agreement, which they contended was a condition precedent to the signing of an order. The Fasanos proposed, in the alternative, a counterorder which specifically acknowledged the visitation agreement.

[71] Although on July 16, 1999, the motion court signed the Rogerses' proposed order, which made no mention of the April 29, 1999 visitation agreement, at the same time the motion court "So Ordered" those paragraphs in the April 29, 1999 agreement which provided for visitation by the Fasanos.

The Rogerses assert that over the next few months, the IAS Court issued oral "visitation orders" in apparent reliance upon the visitation agreement, and directed that a full forensic psychological evaluation of the parties and their infants be conducted by two sets of mental health experts. On January 14, 2000, the IAS Court granted the Fasanos visitation with the child every other weekend.

The Rogerses now challenge the court's January 14, 2000 visitation order. For their part, the Fasanos appeal from the order of July 16, 1999 giving the Rogerses custody of the child, contending that in view of the discontinuance and the failure to thereafter properly commence a new custody proceeding, the court lacked jurisdiction as well as statutory authority to award custody.

JURISDICTION AND PROCEDURAL OBJECTIONS

Initially, we deem the Fasanos to have waived their newly offered jurisdictional defense based upon the Rogerses' failure to procure a new index number and commence a new proceeding with their petition seeking an order of custody (see, Kamar v City of New York, 262 AD2d 57, 57-58). In any case, inasmuch as the new petition was not untimely, that failure may be corrected nunc pro tunc by the purchase of a new index number and the transfer of the submissions related to that matter to the new file (id.). The Supreme Court therefore had jurisdiction to make the custody order.

We also reject the Fasanos' contention that the court acted improperly in signing the Rogerses' proposed custody order because the Rogerses failed to mention the visitation agreement in their application. We do not consider the omission to constitute a failure of a condition precedent, and in any event, the Fasanos' June 21, 1999 order to show cause brought the visitation agreement to the attention of the court prior to the time it signed the Rogerses' proposed order.

SUBJECT MATTER JURISDICTION AND STANDING

The Rogerses suggest that the Supreme Court lacks subject matter jurisdiction over this dispute because the Fasanos are "genetic strangers" to Akeil. We decline to dispose of [72] the Fasanos' claim on this basis alone. The Supreme Court of the State of New York has subject matter jurisdiction over petitions for custody and visitation pursuant to both the Domestic Relations Law and the Family Court Act.

This is not to say that the Fasanos necessarily have standing to seek visitation with Akeil. However, on this issue we will not simply adopt the Rogerses' suggestion that no gestational mother may ever claim visitation with the infant she carried, in view of her status as a "genetic stranger" to the infant. In recognition of current reproductive technology, the term "genetic stranger" alone can no longer be enough to end a discussion of this issue. Additional considerations may be relevant for an initial threshold analysis of who is, or may be, a "parent" (see, Hill, What Does It Mean to Be a "Parent"? The Claims of Biology as the Basis for Parental Rights, 66 NYU L Rev 353).

In referring to the rights and responsibilities of parents, the laws of this State, as well as the commentaries and case law, often use the term "natural parents," as distinguished from adoptive parents, stepparents, and foster parents (see, e.g., Domestic Relations Law §§ 24, 111, 115, 116, 117; Social Services Law § 384-b; Matter of Carol Y. v David M., 150 AD2d 783). Until recently, there was no question as to who was a child's "natural" mother. It was the woman in whose uterus the child was conceived and borne (see, Stumpf, Redefining Mother: A Legal Matrix for New Reproductive Technologies, 96 Yale LJ 187).

It was only with the recent advent of in vitro fertilization technology that it became possible to divide between two women the functions that traditionally defined a mother, at least prenatally. With this technology, a troublesome legal dilemma has arisen: when one woman's fertilized eggs are implanted in another, which woman is the child's "natural" mother?

Although the technology is still fairly new, several cases have been decided that focus on competing claims to child custody arising out of the use of in vitro fertilization technology. These cases are not dispositive here, since visitation rights rather than custody is at issue. However, they contain analysis that provides important background for the issues raised on this appeal.

In Johnson v Calvert (5 Cal 4th 84, 851 P2d 776, cert denied 510 US 874), a surrogate mother, unrelated genetically to the child she had carried, declined to give the child to its genetic [73] parents upon its birth, as had been agreed in a surrogacy contract. While "recogniz[ing] both genetic consanguinity and giving birth as means of establishing a mother and child relationship," the California Supreme Court concluded that "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." (5 Cal 4th, at 93, 851 P2d, at 782.) It therefore affirmed an award of custody to the genetic parents.

The Second Department applied this "intent" analysis to the converse situation, to recognize the parental rights of a gestational mother who had carried a fetus created from the egg of an anonymous donor which was fertilized with her husband's sperm (see, McDonald v McDonald, 196 AD2d 7). The Court rejected the father's position, in the context of a divorce proceeding, that as "the `only genetic and natural parent available,'" his claim to custody was superior to that of his wife, and held that the gestational mother was legally the mother of the child to whom she had given birth (id., at 9, 12).

While the foregoing cases are not directly on point, since they deal with a gestational, nongenetic mother's asserted right to be regarded as the infant's sole natural mother, a claim for visitation by a gestational mother and her family also requires examination and clarification of their legal relationship to the child.

It is apparent from the foregoing cases that a "gestational mother" may possess enforceable rights under the law, despite her being a "genetic stranger" to the child. Given the complex possibilities in these kind of circumstances, it is simply inappropriate to render any determination solely as a consequence of genetics.

Parenthetically, it is worth noting that even if the Fasanos had claimed the right to custody of the child, application of the "intent" analysis suggested in Professor Hill's article (id.), and employed in Johnson v Calvert (supra) and McDonald v McDonald (supra) would—in our view—require that custody be awarded to the Rogerses. It was they who purposefully arranged for their genetic material to be taken and used in order to attempt to create their own child, whom they intended to rear.

STANDING TO SEEK VISITATION

To establish their claim that the Fasanos lack standing, the Rogerses focus upon the strict limits of New York statutory [74] and case law regarding who may seek visitation. Under New York statutory law, the only people who have the right to seek visitation are parents (Domestic Relations Law §§ 70, 240), grandparents (Domestic Relations Law §§ 72, 240) and siblings related by whole or half-blood (Domestic Relations Law § 71). The Rogerses rely on the proposition that because the statutes must be strictly construed, they must be interpreted to preclude the Fasanos from within their framework. Specifically, they suggest that by their act of ceding Akeil to the Rogerses, the child's genetic parents, the Fasanos have surrendered any conceivable right to the parental status necessary to claim visitation rights.

We agree that under the circumstances presented, the Fasanos lack standing under Domestic Relations Law § 70 to seek visitation as the child's parents. However, this is not because we necessarily accept the broad premise that in any situation where a parent, possessed of that status by virtue of having borne and given birth to the child, acknowledges another couple's entitlement to the status of parent by virtue of their having provided the genetic materials that created the child, the birth parent automatically gives up all parental rights.^[1]

Rather, we recognize that in these rather unique circumstances, where the Rogerses' embryo was implanted in Donna Fasano by mistake, and where the Fasanos knew of the error not long after it occurred, the happenstance of the Fasanos' nominal parenthood over Akeil should have been treated as a mistake to be corrected at soon as possible, before the development of a parental relationship. It bears more similarity to a mix-up at the time of a hospital's discharge of two newborn infants, which should simply be corrected at once,^[2] than to one where a gestational mother has arguably the same rights to [75] claim parentage as the genetic mother. Under such circumstances, the Fasanos will not be heard to claim the status of parents, entitled to seek an award of visitation.

Additionally, the Fasanos' child, Vincent, is not a sibling "by half or whole blood" with the right to proceed under Domestic Relations Law § 71, since the statute makes no reference to "gestational siblings."

In addition to the absence of statutory support for the Fasanos' visitation application, the policy underlying two important visitation cases in this State (see, Matter of Alison D. v Virginia M., 77 NY2d 651; Matter of Ronald FF. v Cindy GG., 70 NY2d 141) militates against their position as well. Even though, as we have noted, it is inaccurate to refer to a child's gestational mother as a "biological stranger," the strong policy considerations behind these cases, in which the Court considered visitation claims by "biological strangers," apply here. Where a child is properly in the custody of parents, it has been repeatedly held, those parents are accorded extremely broad rights to exclude any visitation, even by a person who has raised and nurtured the child as his or her own (see, Matter of Alison D. v Virginia M., supra; Matter of Ronald FF. v Cindy GG., supra).

APPLICABILITY OF A "BEST INTERESTS" APPROACH

The Fasanos argue that determination at this point of the parties' respective rights regarding Akeil would be premature, in view of the preliminary procedural posture of this case. Indeed, there has been neither testimony nor even joinder of issue. Nevertheless, in this instance, we conclude that a determination on the law may, and indeed must, be made at this time. While there may well be occasions where a dispute between gestational and genetic parents requires a full evidentiary "best interests" hearing to ensure that the child's interests are fully protected, this is not such a case.

The only facts needed for this determination are those that are clearly established on this meager record: (1) plaintiffs are the genetic parents of the child, Akeil Rogers, and are concededly entitled to custody of him; (2) defendant Donna Fasano is the child's "gestational mother," having given birth to him after being implanted by mistake with the fertilized embryo of [76] plaintiffs, (3) the parties were made aware of the mistake by the medical facility prior to the birth of the child, and (4) in the process of working out the transfer of Akeil to plaintiffs, the Fasanos and the Rogerses entered into an agreement providing for visitation.

In other circumstances, inquiry may be appropriate as to whether a psychological bond exists which should not be abruptly severed, and if so, what living arrangements would be in the child's best interests. For instance, when a child has been born into and raised as a part of a family for an extended period of time, a basis may be presented for directing custody with one family and visitation to another.

We are also cognizant that a bond may well develop between a gestational mother and the infant she carried, before, during and immediately after the birth (see, e.g., Noble-Allgire, Switched at the Fertility Clinic: Determining Maternal Rights When a Child is Born from Stolen or Misdelivered Genetic Material, 64 Mo L Rev 517 [Summer 1999]), and that indeed, here, the parties' visitation agreement itself proclaimed the existence of a bond between the two infants. Nevertheless, the suggested existence of a bond is not enough under the present circumstances.

In the present case, any bonding on the part of Akeil to his gestational mother and her family was the direct result of the Fasanos' failure to take timely action upon being informed of the clinic's admitted error. Defendants cannot be permitted to purposefully act in such as way as to create a bond, and then rely upon it for their assertion of rights to which they would not otherwise be entitled.

Nor may the parties' visitation agreement form the basis for a court order of visitation. "[A] voluntary agreement * * * will not of itself confer standing upon a person not related by blood to assert a legal claim to visitation or custody" (Matter of Cindy P. v Danny P., 206 AD2d 615, 616, lv denied 84 NY2d 808; see also, Matter of Canabush v Wancewicz, 193 AD2d 260).

Finally, the circumstances presented, tragic as they are, do not form the basis for application of the doctrine of equitable estoppel to prevent the Rogerses from challenging the Fasanos' standing to seek visitation (compare, Matter of Gilbert A. v Laura A., 261 AD2d 886 [years after divorce, mother sought to deny former husband visitation rights with child born during marriage, asserting—with proof—that a third party was the child's biological father; former husband found entitled to present proof as to whether mother should be equitably [77] estopped from denying his paternal rights]; Matter of Christopher S. v Ann Marie S., 173 Misc 2d 824 [child's former stepfather sought custody, mother estopped from challenging his standing where she had told the child that his stepfather was his father, and acted as such in all other respects]; Matter of J.C. v C.T., NYLJ, June 23, 2000, at 33, col 3 [Fam Court, Westchester County] [hearing directed as to whether petitioner, former domestic partner, seeking visitation with respondent's children, should be allowed to invoke the doctrine of equitable estoppel, due to her own actions in creating, nurturing and encouraging a parent-child relationship with the nonbiological "parent"]).

Accordingly, the order of the Supreme Court, New York County (Diane Lebedeff, J.), entered February 2, 2000, which granted defendants visitation with the infant Joseph Fasano, now known as Akeil Richard Rogers, should be reversed, on the law, without costs, and the application for an order of visitation denied. Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 2, 1999, which declared the Rogerses to be the parents of the infant, should be modified, on the law, to the extent of ordering the Rogerses to purchase a new index number for their special proceeding and thereupon transferring the relevant documents nunc pro tunc to that new file, and otherwise affirmed, without costs.

Order, Supreme Court, New York County, entered February 2, 2000, reversed, on the law, without costs, and the application for an order of visitation denied. Order, same court, entered September 2, 1999, modified, on the law, to the extent of ordering the plaintiffs to purchase a new index number for their special proceeding and thereupon transferring the relevant documents nunc pro tunc to that new file, and otherwise affirmed, without costs.

[1] Despite the longstanding tradition that a child cannot have more than one mother and one father at a time, some exceptions to that firm rule have recently begun to develop. For instance, it is now possible for both parties in a lesbian couple to be a child's mother (see, Matter of Jacob, 86 NY2d 651). It is also possible for a parent to assert rights to continuing visitation despite having given a child up for adoption (see, Social Services Law § 383-c; Matter of Gregory B., 74 NY2d 77, 91). It is certainly conceivable that under some other circumstances, we would have to treat both genetic and gestational mother as parents, at least for certain purposes.

[2] If a hospital mix-up is discovered right away, there should be no question that it must be corrected at once; although, in circumstances where years have passed before the error is discovered, courts might consider some arrangement other than a simple change of custody (compare, Twigg v Mays, 1993 WL 330624 [Fl Cir Ct, Aug. 18, 1993, No. 88-4489-CA-01 [switch discovered after 10 years, change of custody denied]; Pope v Moore, 261 Ga 253, 403 SE2d 205 [1991] [mistake discovered after four years, genetic mother awarded visitation, denied custody]; see generally, Note, What's Best for Babies Switched at Birth? The Role of the Court, Rights of Non-biological Parents, and Mandatory Mediation of the Custodial Agreements, 21 Whittier L Rev 315).