*87Opinion

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 zygote1 formed of the gametes2 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.

Facts3

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 bom 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 *88insurance 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. Tfte 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 *89now provide for labeling children as legitimate or illegitimate and defining their legal rights and those of their parents accordingly. In place of these cruel and outmoded provisions, SB 347 would enact the Uniform Parentage Act which bases parent and child rights on the existence of a parent and child relationship rather than on the marital status of the parents.”

The pertinent portion of Senate Bill No. 347, which passed with negligible opposition, became part 7 of division 4 of the California Civil Code, sections 7000-7021.5

Civil Code sections 7001 and 7002 replace the distinction between legitimate and illegitimate children with the concept of the “parent and child relationship.” The “parent and child relationship" means “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” (Civ. Code, § 7001.) “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” (Civ. Code, § 7002.) The “parent and child relationship” is thus a legal relationship encompassing two kinds of parents, “natural” and “adoptive.”

Passage of the Act clearly was not motivated by the need to resolve surrogacy disputes, which were virtually unknown in 1975. Yet it facially applies to any parentage determination, including the rare case in which a child’s maternity is in issue. We are invited to disregard the Act and decide this case according to other criteria, including constitutional precepts and our sense of the demands of public policy. We feel constrained, however, to decline the invitation. Not uncommonly, courts must construe statutes in factual settings not contemplated by the enacting legislature. For example, in People v. Salemme (1992) 2 Cal.App.4th 775 [3 Cal.Rptr.2d 398], the court upheld a conviction of burglary when the felony the defendant entered the residence to commit was that of the fraudulent sale of securities. This scenario likely was not within the Legislature’s contemplation when it enacted Penal Code section 459. Nonetheless, the burglary statute, on its face, addressed the defendant’s conduct and was properly interpreted to apply to it. Similarly, the Act offers a mechanism to resolve this dispute, albeit one not specifically tooled for it. We therefore proceed to analyze the parties’ contentions within the Act’s framework.

These contentions are readily summarized. Anna, of course, predicates her claim of maternity on the fact that she gave birth to the child. The *90Calverts 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 bom 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 *91and 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

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. 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 *92blood 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.)

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

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 *93simply 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.

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 bom 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 géstate 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 *95which 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.

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 . ... [ID 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 *96surrogacy 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 *97absolute 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 géstate 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 géstate 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 *99father 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.

*100Moreover, 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 géstate 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 *101such 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].)

*102The 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 *103the 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.

*104We 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.1

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.

*105III. 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 j'ust 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 *106take 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” *107before 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 *108of 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 *109to 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. [][]... [f] 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. ... [SI] ...[][]... Surrogate parenting alters deep-rooted social and moral assumptions about the relationship between parents and children. . . . [<j[]. . . [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 bom 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 *110for 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 bom 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.

*111In 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.

*112VI. 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.).2 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 bom 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 *113provisions. 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 *114genetic 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 *115bargained-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.).)3 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 *117a 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 “ ‘[ujnlikely 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 *118intent 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 fliture 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 *119the 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.4

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].)

*120Factors 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 (cone. 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.5 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 *121both. 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.

*134Opinion

MORENO, J.

We granted review in this case, as well as in Elisa B. v. Superior Court (2005) 37 Cal.4th 108 [33 Cal.Rptr.3d 46, 117 P.3d 660], and Kristine H. v. Lisa R. (2005) 37 Cal.4th 156 [33 Cal.Rptr.3d 81, 117 P.3d 690], to consider the parental rights and obligations, if any, of a woman with regard to a child bom to her partner in a lesbian relationship.

In the present case, we must decide whether a woman who provided ova to her lesbian partner so that the partner could bear children by means of in vitro fertilization is a parent of those children. For the reasons that follow, we conclude that Family Code section 7613, subdivision (b), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply when a woman provides her ova to impregnate her partner in a lesbian relationship in order to produce children who will be raised in their joint home. Accordingly, when partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children’s parents.

Facts

On March 6, 2001, petitioner KM.1 filed a petition to establish a parental relationship with twin five-year-old girls bom to respondent E.G., her former lesbian partner. KM. alleged that she “is the biological parent of the minor children” because “[s]he donated her egg to respondent, the gestational mother of the children.” E.G. moved to dismiss the petition on the grounds that, although KM. and E.G. “were lesbian partners who lived together until this action was filed,” KM. “explicitly donated her ovum under a clear written agreement by which she relinquished any claim to offspring bom of her donation.”

On April 18, 2001, K.M. filed a motion for custody of and visitation with the twins.

A hearing was held at which E.G. testified that she first considered raising a child before she met K.M., at a time when she did not have a partner. She met K.M. in October 1992 and they became romantically involved in June 1993. E.G. told KM. that she planned to adopt a baby as a single mother. E.G. applied for adoption in November 1993. KM. and E.G. began living together in March 1994 and registered as domestic partners in San Francisco.

E.G. visited several fertility clinics in March 1993 to inquire about artificial insemination and she attempted artificial insemination, without *135success, on 13 occasions from July 1993 through November 1994. K.M. accompanied her to most of these appointments. K.M. testified that she and E.G. planned to raise the child together, while E.G. insisted that, although K.M. was very supportive, E.G. made it clear that her intention was to become “a single parent.”

In December 1994, E.G. consulted with Dr. Mary Martin at the fertility practice of the University of California at San Francisco Medical Center (UCSF). E.G.’s first attempts at in vitro fertilization failed because she was unable to produce sufficient ova. In January 1995, Dr. Martin suggested using K.M.’s ova. E.G. then asked K.M. to donate her ova, explaining that she would accept the ova only if K.M. “would really be a donor” and E.G. would “be the mother of any child,” adding that she would not even consider permitting K.M. to adopt the child “for at least five years until [she] felt the relationship was stable and would endure.” E.G. told K.M. that she “had seen too many lesbian relationships end quickly, and [she] did not want to be in a custody battle.” E.G. and K.M. agreed they would not tell anyone that K.M. was the ova donor.

K.M. acknowledged that she agreed not to disclose to anyone that she was the ova donor, but insisted that she only agreed to provide her ova because she and E.G. had agreed to raise the child together. K.M. and E.G. selected the sperm donor together. K.M. denied that E.G. had said she wanted to be a single parent and insisted that she would not have donated her ova had she known E.G. intended to be the sole parent.

On March 8, 1995, K.M. signed a four-page form on UCSF letterhead entitled “Consent Form for Ovum Donor (Known).” The form states that K.M. agrees “to have eggs taken from my ovaries, in order that they may be donated to another woman.” After explaining the medical procedures involved, the form states on the third page: “It is understood that I waive any right and relinquish any claim to the donated eggs or any pregnancy or offspring that might result from them. I agree that the recipient may regard the donated eggs and any offspring resulting therefrom as her own children.” The following appears on page 4 of the form, above K.M.’s signature and the signature of a witness: “I specifically disclaim and waive any right in or any child that may be conceived as a result of the use of any ovum or egg of mine, and I agree not to attempt to discover the identity of the recipient thereof.” E.G. signed a form entitled “Consent Form for Ovum Recipient” that stated, in part: “I acknowledge that the child or children produced by the FVF procedure is and shall be my own legitimate child or children and the heir or heirs of my body with all rights and privileges accompanying such status.”

E.G. testified she received these two forms in a letter from UCSF dated February 2, 1995, and discussed the consent forms with K.M. during *136February and March. E.G. stated she would not have accepted K.M.’s ova if K.M. had not signed the consent form, because E.G. wanted to have a child on her own and believed the consent form “protected” her in this regard.

K.M. testified to the contrary that she first saw the ovum donation consent form 10 minutes before she signed it on March 8, 1995. K.M. admitted reading the form, but thought parts of the form were “odd” and did not pertain to her, such as the part stating that the donor promised not to discover the identity of the recipient. She did not intend to relinquish her rights and only signed the form so that “we could have children.” Despite having signed the form, K.M. “thought [she] was going to be a parent.”

Ova were withdrawn from K.M. on April 11, 1995, and embryos were implanted in E.G. on April 13, 1995. K.M. and E.G. told KM.’s father about the resulting pregnancy by announcing that he was going to be a grandfather. The twins were bom on December 7, 1995. The twins’ birth certificates listed E.G. as their mother and did not reflect a father’s name. As they had agreed, neither E.G. nor K.M. told anyone K.M. had donated the ova, including their friends, family and the twins’ pediatrician. Soon after the twins were bom, E.G. asked K.M. to marry her, and on Christmas Day, the couple exchanged rings.

Within a month of their birth, E.G. added the twins to her health insurance policy, named them as her beneficiary for all employment benefits, and increased her life insurance with the twins as the beneficiary. K.M. did not do the same.

E.G. referred to her mother, as well as K.M.’s parents, as the twins’ grandparents and referred to K.M.’s sister and brother as the twins’ aunt and uncle, and K.M.’s nieces as their cousins. Two school forms listed both K.M. and respondent as the twins’ parents. The children’s nanny testified that both K.M. and E.G. “were the babies’ mother.”

The relationship between K.M. and E.G. ended in March 2001 and K.M. filed the present action. In September 2001, E.G. and the twins moved to Massachusetts to live with E.G.’s mother.

The superior court granted E.G.’s motion to dismiss finding, in a statement of decision, “that [K.M.] . . . knowingly, voluntarily and intelligently executed the ovum donor form, thereby acknowledging her understanding that, by the donation of her ova, she was relinquishing and waiving all rights to claim legal parentage of any children who might result from the in vitro fertilization and implantation of her ova in a recipient (in this case, a known recipient, her domestic partner [E.G.]). . . . [K.M.]’s testimony on the subject of her execution of the ovum donor form was contradictory and not always credible.

*137“[K.M.] and [E.G.] agreed prior to the conception of the children that [E.G.] would be the sole parent unless the children were later adopted, and [E.G.] told [K.M.] prior to her ovum donation that she ([E.G.]) would not consider an adoption by [K.M.] until some years later. [E.G.] and [K.M.] agreed in advance of the ovum donation that they would not tell others of [K.M.]’s genetic connection to the children (they also agreed that if and when it became appropriate they would consider how to inform the children); and they abided by this agreement until late 1999.

“. . . By voluntarily signing the ovum donation form, [K.M.] was donating genetic material. Her position was analogous to that of a sperm donor, who is treated as a legal stranger to a child if he donates sperm through a licensed physician and surgeon under Family Code section 7613[, subdivision] (b). The Court finds no reason to treat ovum donors as having greater claims to parentage than sperm donors. . . .

“The Court accepts the proposition that a child may have two legal mothers and assumed it to be the law in its analysis of the evidence herein. m... m

“[K.M.]’s claim to ‘presumed’ parenthood rests upon her contention that she has met the criteria of Family Code section 7611[, subdivision] (d). . . . [K.M.] . . . has failed to establish either that she received the twins into her home or that she held them out ‘as [her] natural child[ren.]’ Although [K.M.] treated the twins in all regards as though they were her own (and there can be no question but that they are fully bonded to her as such), the children were received into the parties’ home as [E.G.]’s children and, up until late 1999, both parties scrupulously held confidential [petitioner]’s ‘natural,’ i.e., in this case, her genetic relationship to the children.

“[E.G.] is not estopped by her conduct .... The Court finds that [petitioner] was not misled by any such conduct; that she knew that [respondent] did not intend thereby to confer parental rights upon her . . . .”

The Court of Appeal affirmed the judgment, ruling that K.M. did not qualify as a parent “because substantial evidence supports the trial court’s factual finding that only E.G. intended to bring about the birth of a child whom she intended to raise as her own.” The court observed that “the status of K.M. ... is consistent with the status of a sperm donor under the [Uniform Parentage Act], i.e., ‘treated in law as if he were not the natural father of a child thereby conceived.’ [Citation.]” Having concluded that the parties intended at the time of conception that only E.G. would be the child’s mother, the court concluded that the parties’ actions following the birth did not alter this agreement. The Court of Appeal concluded that if the parties *138had changed their intentions and wanted K.M. to be a parent, their only option was adoption.

We granted review.

Discussion

K.M. asserts that she is a parent of the twins because she supplied the ova that were fertilized in vitro and implanted in her lesbian partner, resulting in the birth of the twins. As we will explain, we agree that K.M. is a parent of the twins because she supplied the ova that produced the children, and Family Code section 7613, subdivision (b)2 (hereafter section 7613(b)), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply because K.M. supplied her ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home.3

The determination of parentage is governed by the Uniform Parentage Act (UPA). (§ 7600 et seq.) As we observe in the companion case of Elisa B. v. Superior Court, supra, 37 Cal.4th 108, 116, the UPA defines the “ ‘parent and child relationships which] extends equally to every child and to every parent, regardless of the marital status of the parents.’ (§ 7602.)”

In Johnson v. Calvert (1993) 5 Cal.4th 84, 87 [19 Cal.Rptr.2d 494, 851 P.2d 776], we determined that a wife whose ovum was fertilized in vitro by her husband’s sperm and implanted in a surrogate mother was the “natural mother” of the child thus produced. We noted that the UPA states that provisions applicable to determining a father and child relationship shall be used to determine a mother and child relationship “insofar as practicable.” (Johnson v. Calvert, supra, at p. 90, citing former Civ. Code, § 7015, now Fam. Code, § 7650.) We relied, therefore, on the provisions in the UPA regarding presumptions of paternity and concluded that “genetic consanguinity” could be the basis for a finding of maternity just as it is for paternity. (Johnson v. Calvert, supra, 5 Cal.4th at p. 92; In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 1415 [72 Cal.Rptr.2d 280].) Under this authority, K.M.’s genetic relationship to the children in the present case constitutes “evidence of a mother and child relationship as contemplated by the Act. [Citations.]” (Johnson, supra, at p. 92.)

*139The Court of Appeal in the present case concluded, however, that K.M. was not a parent of the twins, despite her genetic relationship to them, because she had the same status as a sperm donor. Section 7613(b) states: “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.” In Johnson, we considered the predecessor statute to section 7613(b), former Civil Code section 7005. (Johnson v. Calvert, supra, 5 Cal.4th 84, 100, fn. 14.) We did not discuss whether this statute applied to a woman who provides ova used to impregnate another woman, but we observed that “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.” (Id. at p. 93, fn. 10.) We held that the statute did not apply under the circumstances in Johnson, because the husband and wife in Johnson did not intend to “donate” their sperm and ova to the surrogate mother, but rather “intended to procreate a child genetically related to them by the only available means.” (Johnson, supra, at p. 100.)

The circumstances of the present case are not identical to those in Johnson, but they are similar in a crucial respect; both the couple in Johnson and the couple in the present case intended to produce a child that would be raised in their own home. In Johnson, it was clear that the married couple did not intend to “donate” their semen and ova to the surrogate mother, but rather permitted their semen and ova to be used to impregnate the surrogate mother in order to produce a child to be raised by them. In the present case, K.M. contends that she did not intend to donate her ova, but rather provided her ova so that E.G. could give birth to a child to be raised jointly by K.M. and E.G. E.G. hotly contests this, asserting that K.M. donated her ova to E.G., agreeing that E.G. would be the sole parent. It is undisputed, however, that the couple lived together and that they both intended to bring the child into their joint home. Thus, even accepting as true E.G.’s version of the facts (which the superior court did), the present case, like Johnson, does not present a “true ‘egg donation’ ” situation. (Johnson v. Calvert, supra, 5 Cal.4th 84, 93, fn. 10.) K.M. did not intend to simply donate her ova to E.G., but rather provided her ova to her lesbian partner with whom she was living so that E.G. could give birth to a child that would be raised in their joint home. Even if we assume that the provisions of section 7613(b) apply to women who donate ova, the statute does not apply under the circumstances of the present case. An examination of the history of 7613(b) supports our conclusion.

The predecessor to section 7613(b), former Civil Code section 7005, was enacted in 1975 as part of the UPA. (Stats. 1975, ch. 1244, § 11, pp. 3197-3198.) Section 5, subdivision (b), of the Model UPA states: “The *140donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” The comment to this portion of the model act notes that this provision was not intended to solve all questions posed by the use of artificial insemination: “This Act does not deal with many complex and serious legal problems raised by the practice of artificial insemination. It was though[t] useful, however, to single out and cover in this Act at least one fact situation that occurs frequently.” (9B West’s U. Laws Ann. (1987) U. Parentage Act, com. to § 5, pp. 301-302.)

Although the predecessor to section 7613 was based upon the Model UPA, the California Legislature made one significant change; it expanded the reach of the provision to apply to both married and unmarried women. “Section 7005 is derived almost verbatim from the UPA as originally drafted, with one crucial exception. The original UPA restricts application of the nonpaternity provision of subdivision (b) to a ‘married woman other than the donor’s wife.’ [Citation.] The word ‘married’ is excluded from subdivision (b) of section 7005, so that in California, subdivision (b) applies to all women, married or not. [f] Thus, the California Legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support.” (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 392 [224 Cal.Rptr. 530], fn. omitted.)

Under the Model UPA, a man who donated semen that was used to impregnate a woman who was married to someone other than the donor would not be considered the father of the resulting child. But the provision would not apply, and the semen donor would be considered the father of the child, if the woman impregnated was unmarried. Therefore, this provision of the model act would not apply if a man provided semen that was used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home, and the man would be considered the father of the resulting child.

In adopting the model act, California expanded the reach of this provision by omitting the word “married,” so that unmarried women could avail themselves of artificial insemination. This omission was purposeful. As originally introduced in 1975, Senate Bill No. 347 (1975-1976 Reg. Sess.) proposed adopting verbatim the language of the model UPA and, thus, would have limited the reach of former Civil Code section 7005 to “married women.” (Sen. Bill No. 347 (1975-1976 Reg. Sess.) § 11, as introduced Feb. *1414, 1975.) On May 8, 1975, however, the bill was amended in the Senate to delete the word “married.”4

It is clear, therefore, that California intended to expand the protection of the model act to include unmarried women so that unmarried women could avail themselves of artificial insemination. But there is nothing to indicate that California intended to expand the reach of this provision so far that it would apply if a man provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home. It would be surprising, to say the least, to conclude that the Legislature intended such a result. The Colorado Supreme Court considered a related issue and reached a similar conclusion.

In In Interest of R.C. (Colo. 1989) 775 P.2d 27, 29, the Colorado Supreme Court addressed a Colorado statute identical to section 7613(b), which applied to both married and unmarried women. At issue were the parental rights, if any, of a man who provided semen to a physician that was used to impregnate an unmarried friend of the man. The man claimed that the woman had promised that he would be treated as the child’s father. The court recognized that the Model UPA addressed only the artificial insemination of a woman married to someone other than the semen donor, adding that the parental rights of a semen donor are “least clearly understood when the semen donor is known and the recipient is unmarried.” (R. C., supra, 775 P.2d at pp. 31, 33-34.) The court concluded that the statute did not apply when a man donated semen to an unmarried woman with the understanding that he would be the father of the resulting child: “[W]e conclude that the General Assembly neither considered nor intended to affect the rights of known donors who gave their semen to unmarried women for use in artificial insemination with the agreement that the donor would be the father of any child so conceived. [The statute] simply does not apply in that circumstance.” (Id. at p. 35.)

The Colorado Supreme Court was thus faced with a situation in which a man provided semen, through a physician, to an unmarried “friend” who allegedly had promised that the man would be the father of the resulting child. The court concluded that the Model UPA, and the Colorado statute based upon it, were not intended to apply to such circumstances. We are faced with an even more compelling situation, because K.M. and E.G. were more than “friends” when K.M. provided her ova, through a physician, to be used to impregnate E.G.; they lived together and were registered domestic partners. Although the parties dispute whether both women were intended to *142be parents of the resulting child, it is undisputed that they intended that the resulting child would be raised in their joint home. Neither the Model UPA, nor section 7613(b) was intended to apply under such circumstances.5

As noted above, K.M.’s genetic relationship with the twins constitutes evidence of a mother and child relationship under the UPA (Johnson v. Calvert, supra, 5 Cal.4th 84, 92) and, as explained above, section 7613(b) does not apply to exclude K.M. as a parent of the twins. The circumstance that E.G. gave birth to the twins also constitutes evidence of a mother and child relationship. (Johnson v. Calvert, supra, 5 Cal.4th at p. 92.) Thus, both K.M. and E.G. are mothers of the twins under the UPA.6

It is true we said in Johnson that “for any child California law recognizes only one natural mother.” (Johnson v. Calvert, supra, 5 Cal.4th 84, 92.) But as we explain in the companion case of Elisa B. v. Superior Court, supra, 37 Cal.4th 108, this statement in Johnson must be understood in light of the issue presented in that case; “our decision in Johnson does not preclude a child from having two parents both of whom are women . . . .” (Id. at p. 119.)

Justice Werdegar’s dissent argues that we should determine whether K.M. is a parent using the “intent test” we developed in Johnson v. Calvert, supra, 5 Cal.4th 84. In Johnson, an embryo created using the sperm and egg of a married couple was implanted in a surrogate mother. It was undisputed that the husband was the father of the resulting child, but the wife and the surrogate both claimed to be the mother. We recognized that both women “have adduced evidence of a mother and child relationship” under the UPA—the wife because she is genetically related to the child and the surrogate because she gave birth to the child—but we rejected the suggestion that, under the circumstances of that case, the child could have two mothers, leaving the child with three parents. (5 Cal.4th at p. 92, fn. 8.) In order to determine which woman was the child’s sole mother under the UPA, we looked to their respective intents: “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 . . . .” (5 Cal.4th at p. 93.)

*143As the dissent acknowledges, a child can have two mothers. Thus, this case differs from Johnson in that both K.M. and E.G. can be the children’s mothers. Unlike in Johnson, their parental claims are not mutually exclusive. K.M. acknowledges that E.G. is the twins’ mother. K.M. does not claim to be the twins’ mother instead of E.G., but in addition to E.G., so we need not consider their intent in order to decide between them. (In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1224 [30 Cal.Rptr.2d 893] [Johnson intent test does not apply when “[t]here is no ‘tie’ to break”].) Rather, the parentage of the twins is determined by application of the UPA. E.G. is the twins’ mother because she gave birth to them and K.M. also is the twins’ mother because she provided the ova from which they were produced.

Justice Werdegar’s dissent claims that we are “changing the law” by creating a “new rule” for determining whether a woman who supplies an ovum is the mother of the resulting child. (Dis. opn. of Werdegar, J., post, at p. 150.) We are not. Nothing in Johnson suggests that the intent test applies in cases not involving surrogacy agreements, and the dissent agrees that the linchpin of the decision in Johnson—that a child cannot have two mothers— does not apply here. (Id. at p. 148.) We simply hold that section 7613(b), which creates an exception to the usual rules governing parentage that applies when a man donates semen to inseminate a woman who is not his wife, does not apply under the circumstances of this case in which K.M. supplied ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home. Because the exception provided in section 7613(b) does not apply, K.M.’s parentage is determined by the usual provisions of the UPA. As noted above, under the UPA, K.M.’s genetic relationship to the twins constitutes “evidence of a mother and child relationship.” (Johnson v. Calvert, supra, 5 Cal.4th 84, 92.)

It would be unwise to expand application of the Johnson intent test as suggested by Justice Werdegar’s dissent beyond the circumstances presented in Johnson. Usually, whether there is evidence of a parent and child relationship under the UPA does not depend upon the intent of the parent. For example, a man who engages in sexual intercourse with a woman who assures him, falsely, that she is incapable of conceiving children is the father of a resulting child, despite his lack of intent to become a father.

Justice Werdegar’s dissent states that predictability in this area is important, but relying upon a later judicial determination of the intent of the parties, as the dissent suggests, would not provide such predictability. The present case is a good example. Justice Werdegar’s dissent concludes that K.M. did not intend to become a parent, because the superior court “found on the basis of conflicting evidence that she did not,” noting that “[w]e must defer to the trial court’s findings on this point because substantial evidence *144supports them.” (Dis. opn. of Werdegar, J., post, at pp. 149-150.) Had the superior court reached the opposite conclusion, however, the dissent presumably again would defer to the trial court’s findings and reach the opposite conclusion that K.M. is a parent of the twins. Rather than provide predictability, therefore, using the intent test would rest the determination of parentage upon a later judicial determination of intent made years after the birth of the child.

Justice Werdegar’s dissent cites Troxel v. Granville (2000) 530 U.S. 57, 65 [147 L.Ed.2d 49, 120 S.Ct. 2054] for the proposition that “We cannot recognize K.M. as a parent without diminishing E.G.’s existing parental rights.” (Dis. opn. of Werdegar, J., post, at p. 153.) The high court’s decision in Troxel has no application here. Neither K.M.’s nor E.G.’s claim to parentage preceded the other’s. K.M.’s claim to be the twins’ mother because the twins were produced from her ova is equal to, and arose at the same time as, E.G.’s claim to be the twins’ mother because she gave birth to them.

The superior court in the present case found that K.M. signed a waiver form, thereby “relinquishing and waiving all rights to claim legal parentage of any children who might result.” But such a waiver does not affect our determination of parentage. Section 7632 provides: “Regardless of its terms, an agreement between an alleged or presumed father and the mother or child does not bar an action under this chapter.” (See In re Marriage of Buzzanca, supra, 61 Cal.App.4th 1410, 1426 [“It is well established that parents cannot, by agreement, limit or abrogate a child’s right to support.” (Fn. omitted.)].) A woman who supplies ova to be used to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child. Nor can such a purported waiver effectively cause that woman to relinquish her parental rights.

In light of our conclusion that section 7613(b) does not apply and that K.M. is the twins’ parent (together with E.G.), based upon K.M.’s genetic relationship to the twins, we need not, and do not, consider whether K.M. is presumed to be a parent of the twins under section 7611, subdivision (d), which provides that a man is presumed to be a child’s father if “[h]e receives the child into his home and openly holds out the child as his natural child.”

Disposition

The judgment of the Court of Appeal is reversed.

George, C. J., Baxter, J., and Chin, J., concurred.

*145KENNARD, J., Dissenting.

Unlike the majority, I would apply the controlling statutes as written. The statutory scheme for determining parentage contains two provisions that resolve K.M.’s claim to be a parent of the twins bom to E.G. Under one provision, a man who donates sperm for physician-assisted artificial insemination of a woman to whom he is not married is not the father of the resulting child. (Earn. Code, § 7613, subd. (b).)1 Under the other provision, mies for determining fatherhood are to be used for determining motherhood “[ijnsofar as practicable.” (§ 7650.) Because K.M. donated her ova for physician-assisted artificial insemination and implantation in another woman, and knowingly and voluntarily signed a document declaring her intention not to become a parent of any resulting children, she is not a parent of the twins.

I.

In 1994, K.M. and E.G. began living together as a couple, and some months later they registered as domestic partners. E.G. had long wanted to become a mother but had been unsuccessful in conceiving. She eventually pursued in vitro fertilization, but her body failed to produce sufficient ova. Her physician then suggested that she obtain ova from K.M., her partner. K.M. orally agreed that she would donate ova, and that E.G. would be the only parent of any resulting child unless K.M. were later to become a parent through a formal second-parent adoption. K.M. evidenced her intent that E.G. was to be the sole parent by signing the ova donor form, which provided that she renounced any claim to her donated ova, a fetus, or a child bom from her ova.

K.M. donated her ova, which were fertilized with sperm from an anonymous donor and implanted in E.G., who ultimately gave birth to twin girls. The twins lived with the couple for five years. After the couple separated, K.M. petitioned the superior court for establishment of a parental relationship with the twins, and for rights to custody and visitation.

After a weeklong hearing, at which considerable evidence was presented, the superior court dismissed K.M.’s parentage action. Describing K.M.’s testimony about her misunderstanding of the ova donor form as “not always credible,” the trial court found that K.M. and E.G. had agreed “prior to the conception of the children” that E.G. would be their only parent. The court observed that E.G.’s intent to be the sole parent “responsible for the support and maintenance of any children bom” of the ova implanted in her uterus was evidenced when she signed the ova recipient form acknowledging that the “children produced” by the in vitro fertilization procedure would be her *146children “with all the rights and privileges accompanying such status.” The court also noted that K.M. had failed to show that she had no choice but to sign the standard form provided by the in vitro fertilization clinic, and that she could not have donated her ova under a different agreement in which she was “designated” as “an intended parent” of any child bom to E.G. Hence it ruled that K.M. had voluntarily relinquished any claim to being a mother of any children bom to E.G.

The court further ruled that K.M. did not meet the statutory definition of a “presumed” mother (§7611, subd. (d); Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 125 [33 Cal.Rptr.3d 108, 117 P.3d 660] (Elisa B.)), because she had failed to meet both prongs of the statutory test: receiving the children into her home, and holding them out as her natural children. Although K.M. had received the twins into her home, she had not held them out as her natural children;2 indeed she had not disclosed to others “her genetic connection” to the twins until 1999, when the couple’s relationship began to falter.

The Court of Appeal affirmed the trial court.

II.

The Court of Appeal held that K.M. had made a voluntary and informed choice to donate her ova to E.G., and that KM.’s status with respect to any child bom as a result of the ova donation was analogous to that of a sperm donor, who, by statute, is treated as if he were not the natural father of any child conceived as a result of the sperm donation. “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.” (§ 7613, subd. (b).) By analogy I would apply that statute here. Section 7650 states that “[i]nsofar as practicable” the provisions “applicable” to a father and child relationship are to be used to determine a mother and child relationship.

Here it is “practicable” to treat a woman who donates ova to a licensed physician for in vitro fertilization and implantation in another woman,3 in the same fashion as a man who donates sperm to a licensed physician for artificial insemination of a woman to whom he is not married. Treating male *147and female donors alike is not only practicable, but it is also consistent with the trial court’s factual finding here that K.M. intended “to donate ova to E.G.” so that E.G. would be the sole mother of a child bom to her.

As the majority here explains, California’s Legislature has drafted the sperm donor statute in such a way as to allow unmarried women to use artificial insemination to conceive, and to permit them to become the sole parent of any child so conceived, if they use sperm that the donor has provided to a licensed physician. (Maj. opn., ante, at p. 140.) Here, E.G. used sperm donated in that fashion, ensuring that the sperm donor would have no claim of fatherhood to any child to whom she gave birth. This she was entitled to do under California law. (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 392 [224 Cal.Rptr. 530].)

I recognize that California law does not expressly address the maternal status of ova donors. But, as I have explained in the past, the Uniform Parentage Act, as codified in our Family Code, remains “the only statutory guidance this court has in resolving this case.” (Johnson v. Calvert (1993) 5 Cal.4th 84, 112 [19 Cal.Rptr.2d 494, 851 P.2d 776] (dis. opn. of Kennard, J.) (Johnson).) Accordingly, as I said earlier, I would apply the sperm donor statute to women who donate their ova in compliance with section 7613, subdivision (b). As the trial court here explained: K.M.’s “position was analogous to that of a sperm donor, who is treated as a legal stranger to the child if he donates sperm through a licensed physician and surgeon.” Like the trial court, I see “no reason to treat ovum donors as having greater claims to parentage than sperm donors.”

The analogy between sperm and ova donors is not new. Indeed, in Johnson, supra, 5 Cal.4th at page 93, footnote 10, this court signalled its view that an ova donor would not be treated as the child’s mother. Johnson held that “in a true ‘egg donation’ situation, where a woman gestates and gives birth to a child formed from the egg of another women with the intent to raise the child as her own, the birth mother is the natural mother under California law.” {Ibid.) Nearly two years after that decision, E.G. in this case undertook in vitro fertilization with ova from K.M.

In the 12 years since this court’s decision in Johnson, supra, 5 Cal.4th 84, an unknown number of Californians have made procreative choices in reliance on it. For example, in the companion case of Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 161 [33 Cal.Rptr.3d 81, 117 P.3d 690] a lesbian couple obtained a prebirth stipulated judgment declaring them to be “ ‘the *148joint intended legal parents' ” (italics added) of the child bom to one of them, language they presumably used in order to bring themselves within Johnson where the preconception intent to become a parent is the determinative inquiry. (Johnson, supra, 5 Cal.4th at p. 93.) We do know that prebirth judgments of parentage on behalf of the nonbiologically related partner of a child’s biological parent have been entered in this state, and that such judgments were touted to same-sex couples as less expensive and time-consuming than second parent adoption. (Doskow, The Second Parent Trap: Parenting For Same-Sex Couples in a Brave New World (1999) 20 J. Juv. L. 1, 21, fns. 117 & 118 [citing judgments entered in San Francisco, Los Angeles, and San Luis Obispo Counties]; see also Mak, Partners in Law, 24 L.A. Law. (July-Aug. 2001) 35, 38, 40.) How will today’s majority holding affect the validity of the various procreative choices made in reliance on Johnson? The majority’s decision offers no answers.

The majority’s desire to give the twins a second parent is understandable and laudable. To achieve that worthy goal, however, the majority must rewrite a statute and disregard the intentions that the parties expressed when the twins were conceived. The majority amends the sperm-donor statute by inserting a new provision making a sperm donor the legal father of a child bom to a woman artificially inseminated with his sperm whenever the sperm donor and the birth mother “intended that the resulting child would be raised in their joint home,'' even though both the donor and birth mother also intended that the donor not be the child’s father. (Maj. opn., ante, at p. 142, italics added.) Finding nothing in the statutory language or history to support this construction, I reject it. Relying on the plain meaning of the statutory language, and the trial court’s findings that both K.M. and E.G. intended that E.G. would be the only parent of any children resulting from the artificial insemination, I would affirm the judgment of the Court of Appeal, which in turn affirmed the trial court, rejecting K.M.’s claim to parentage of the twins bom to E.G.

WERDEGAR, J., Dissenting.

The majority determines that the twins who developed from the ova K.M. donated to E.G. have two mothers rather than one. While I disagree, as I shall explain, with that ultimate conclusion, I agree with the majority’s premise that a child can have two mothers. Our previous holding that “for any child California law recognizes only one natural mother” (Johnson v. Calvert (1993) 5 Cal.4th 84, 92 [19 Cal.Rptr.2d 494, 851 P.2d 776] (Johnson)) must be understood in the context in which it arose—a married couple who intended to become parents and provided their fertilized ova to a gestational surrogate who did not intend to become a parent—and, thus understood, may properly be limited to cases in which to recognize a second mother would inject an unwanted third parent into an *149existing family. When, in contrast to Johnson, no natural1 or adoptive father exists, two women who intend to become mothers of the same child may do so either through adoption (Sharon S. v. Superior Court (2003) 31 Cal.4th 417 [2 Cal.Rptr.3d 699, 73 P.3d 554]) or because both qualify as natural mothers under the Uniform Parentage Act (Earn. Code, § 7600 et seq.) (UPA), one having donated the ovum and the other having given birth (see Johnson, at p. 92).

While scientific advances in reproductive technology now afford individuals previously unimagined opportunities to become parents, the same advances have also created novel, sometimes heartbreaking issues concerning the identification of the resulting children’s legal parents. Declarations of parentage in this context implicate complex and delicate biological, personal, legal and social policy considerations. For these reasons, courts have sought above all to avoid foreseeable disputes over parentage with rules that provide predictability by permitting the various persons who must cooperate to bring children into the world through assisted reproduction to determine in advance who will and will not be parents, based on their expressed and voluntarily chosen intentions. (See, e.g., Johnson, supra, 5 Cal.4th 84, 93-95.)

Precisely because predictability in this area is so important, I cannot agree with the majority that the children in this case do in fact have two mothers. Until today, when one woman has provided the ova and another has given birth, the established rule for determining disputed claims to motherhood was clear: we looked to the intent of the parties. “[I]n 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.” (Johnson, supra, 5 Cal.4th 84, 93, fn. 10.) Contrary to the majority’s apparent assumption, to limit Johnson’s holding that a child can have only one mother to cases involving existing two-parent families does not require us to abandon Johnson’s intent test as the method for determining disputed claims of motherhood arising from the use of reproductive technology. Indeed, we have no other test sufficient to the task.

Furthermore, to apply Johnson’s intent test to the facts of this case necessarily leads to the conclusion that E.G. is a mother and K.M. is not. That E.G. intended to become the mother—and the only mother—of the children to whom she gave birth is unquestioned. Whether K.M. for her part also intended to become the children’s mother was disputed, but the trial court found on the basis of conflicting evidence that she did not. We must defer to the trial court’s findings on this point because substantial evidence *150supports them. K.M. represented in connection with the ovum donation process, both orally and in writing, that she did not intend to become the children’s mother, and consistently with those representations subsequently held the children out to the world as E.G.’s but not her own. Thus constrained by the facts, the majority can justify its conclusion that K.M. is also the children’s mother only by changing the law. This the majority does by displacing Johnson’s intent test—at least for the purposes of this case—with the following new rule: a woman who has “supplied her ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home” (maj. opn., ante, at p. 138; see also id., at pp. 134, 139, 142, 143, 144) is a mother of the resulting children regardless of any preconception manifestations of intent to the contrary.

I find the majority’s reasons for not applying the Johnson intent test unpersuasive. The majority criticizes the test as basing “the determination of parentage upon a later judicial determination of intent made years after the birth of the child.” (Maj. opn., ante, at p. 144.) But the task of determining the intent of persons who have undertaken assisted reproduction is not fundamentally different than the task of determining intent in the context of disputes involving contract, tort or criminal law, something courts have done satisfactorily for centuries. The expectation that courts will in most cases accurately decide factual issues such as intent is one of the fundamental premises of our judicial system. Indeed, the majority itself expresses willingness to continue applying the Johnson intent test to determine whether gestational surrogacy agreements are enforceable. This position leaves no plausible basis for refusing to apply the same test to determine whether ovum donation agreements are enforceable. Ovum donation and gestational surrogacy agreements are two sides of the same coin; each involves an ovum provider, a gestator, and an agreement about who will become the parent or parents of any resulting offspring. Indeed, when two women divide in this way the genetic and gestational components of motherhood, only an examination of their intent permits us to determine whether we are dealing with an ovum donation agreement, a gestational surrogacy agreement, or neither. If courts can perform one of these tasks acceptably, they can also perform the other.2

No more persuasive is the majority’s suggestion that to respect the formally expressed intent of the parties to an ovum donation agreement is prohibited by the rule that parental obligations may not be waived by contract. (Maj. opn., ante, at p. 144.) We expressly rejected a similar *151argument directed against a gestational surrogacy agreement in Johnson, supra, 5 Cal.4th 84, 95-97. Certainly parental obligations may not be waived by contract. (Earn. Code, § 7632.) But Johnson's intent test does not enforce ovum donation and gestational surrogacy agreements; it merely directs courts to consider such documents, along with all other relevant evidence, in determining preconception intent.

As a final reason for rejecting the intent test, the majority suggests that to apply the test outside the context of Johnson might shield from the obligations of fatherhood, contrary to existing law, a man who, lacking the intent to become a father, “engages in sexual intercourse with a woman who assures him, falsely, that she is incapable of conceiving children ...” (Maj. opn., ante, at p. 143.) But no one, to my knowledge, proposes to apply the intent test to determine the parentage of children conceived through ordinary sexual reproduction. This court adopted the intent test to resolve cases of assisted reproduction in which disputes over motherhood arise because one woman has provided the ova and another has gestated them. Both Johnson, supra, 5 Cal.4th 84, and the case before us belong to that category. Although the majority may be correct in asserting that “[u]sually, whether there is evidence of a parent and child relationship under the UPA does not depend upon the intent of the parent” (maj. opn., ante, at p. 143), we adopted the intent test precisely because the UPA does not expressly resolve conflicting claims to motherhood arising from ovum transplants. The majority’s speculation about men who engage in sexual activity despite mental reservations about fatherhood is irrelevant.

The new rule the majority substitutes for the intent test entails serious problems. First, the rule inappropriately confers rights and imposes disabilities on persons because of their sexual orientation. In a standard ovum donation agreement, such as the agreement between K.M. and E.G., the donor confirms her intention to assist another woman to become a parent without the donor becoming a parent herself. The majority’s rule vitiates such agreements when its conditions are satisfied—conditions that include the fact the parties to the agreement are lesbian. Although the majority denies that its rule depends on sexual orientation (maj. opn., ante, at p. 138, fn. 3), the opinion speaks for itself. The majority has chosen to use the term “lesbian” no less than six times in articulating its holding. (Id., at pp. 134, 138, fn. 3, 139, 143, 144.) Moreover, the majority prevents future courts from applying its holding automatically to persons other than lesbians by stating that it “decide[s] only the case before us, which involves a lesbian couple who registered as domestic partners.” (Id., at p. 138, fn. 3.) I see no rational basis—and the majority articulates none—for permitting the enforceability of an ovum donation agreement to depend on the sexual orientation of the parties. Indeed, lacking a rational basis, the rule may well violate equal protection. (See Romer v. Evans (1996) 517 U.S. 620, 631-636 [134 L.Ed.2d *152855, 116 S.Ct. 1620]; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 467-475 [156 Cal.Rptr. 14, 595 P.2d 592].) Why should a lesbian not have the same right as other women to donate ova without becoming a mother, or to accept a donation of ova without accepting the donor as a coparent, even if the donor and recipient live together and both plan to help raise the child?3

Having created a new rule to decide certain cases of disputed parentage arising from assisted reproduction, the majority seeks through various means to limit the number of cases to which the new rule will apply. Through this effort, the majority creates more problems than it solves.

Although the majority at one point seems to suggest that its holding applies only to persons who have registered as domestic partners (maj. opn., ante, p. 138, fn. 3), it elsewhere articulates its holding without reference to domestic partnership. {Id., at pp. 134, 138, 139, 143, 144.) The resulting ambiguity flags á serious problem. K.M. and E.G. registered as domestic partners in October 1994 and terminated their domestic partnership in March 2001. Not until January 1, 2003, however, did California law give domestic partners rights and responsibilities with respect to each others’ children. (Earn. Code, § 297.5, subd. (d), added by Stats. 2003, ch. 421, eflf. Jan. 1, 2005.) The new law expressly does not apply to persons like K.M. and E.G., who terminated their domestic partnerships before January 1, 2005. {Id., § 299.3, subd. (a).) For the majority to base its holding, even in part, on K.M. and E.G.’s domestic partnership is to hold, contrary to statute and apparent legislative intent, that domestic partnership under prior laws did affect parental rights and obligations.

Other problems arise from the majority’s attempt to limit its holding to cases in which the ovum donor and birth mother intend to raise the children together. Except in the context of the majority’s new rule, a person’s pre-conception intent to participate in raising a child has no relevance to the determination of natural parentage. The duty to raise children (by personal care or through payment of child support) is imposed by law regardless of the parents’ intent or wishes. Many persons who become parents do not intend to raise children (e.g., casual inseminators and parents who abandon their babies) and, conversely, many people intend to raise children without becoming parents (e.g., nannies and some stepparents and grandparents). To make the determination of natural parentage rest in part on the intent to raise a child injects into that determination a best interests factor—something we *153have previously refused to do. (Johnson, supra, 5 Cal.4th 84, 93, fn. 10.) I realize the court in Johnson wrote that “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.” {Id., at p. 93.) But the phrase “raise as her own” {ibid., italics added) in that context did not refer simply to providing childcare; instead, it meant that the woman in question intended to be a parent—to raise a child of her own. In no sense did the Johnson court base its decision of parentage on the question of who would provide childcare. By analogy, Family Code section 7611, subdivision (d), which creates the presumption that a man who “receives [a] child into his home and openly holds out the child as his natural child” is not satisfied simply because a man receives the child into his home; to become a presumed father he must also hold out the child as his natural child.

Perhaps the most serious problem with the majority’s new rule is that it threatens to destabilize ovum donation and gestational surrogacy agreements. One important function of Johnson’s intent test was to permit persons who made use of reproductive technology to create, before conception, settled and enforceable expectations about who would and would not become parents. Johnson, supra, 5 Cal.4th 84, thus gave E.G. a right at the time she conceived to expect that she alone would be the parent of her children—a right the majority now retrospectively abrogates. E.G.’s expectation has a constitutional dimension. (See Troxel v. Granville (2000) 530 U.S. 57, 65 [147 L.Ed.2d 49, 120 S.Ct. 2054] [due process clause protects a parent’s fundamental right to make decisions concerning the care, custody and control of her children].) We cannot recognize K.M. as a parent without diminishing E.G.’s existing parental rights. In light of the majority’s abrogation of Johnson and apparent willingness to ignore preconception manifestations of intent, at least in some cases, women who wish to donate ova without becoming mothers, serve as gestational surrogates without becoming mothers, or accept ovum donations without also accepting the donor as a coparent would be well advised to proceed with the most extreme caution. While the majority purports to limit its holding to cohabiting lesbians, and possibly only to those cohabiting lesbians who are also domestic partners, these limitations, as I have explained, rest on questionable legal grounds and may well not stand the test of time.

I find the majority’s extensive discussion of Family Code section 7613, subdivision (b), irrelevant and illogical. The statute provides that “[t]he 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.” The majority concludes the statute does not apply to the case before us. I agree. Although provisions of the UPA that determine the father and child relationship apply “[i]nsofar as practicable” (Fam. Code, § 7650) to determine the mother and *154child relationship, the act’s drafters did not contemplate that all provisions concerning fatherhood would be construed as affecting motherhood. Indeed, the drafters considered it “obvious that certain provisions [of the act] would not apply in an action to establish the mother and child relationship” and expressly left to courts the decision of which provisions should apply. (9B West’s U. Laws Ann. (2001) U. Parentage Act (1973) com. to § 21, p. 494.) That the statute governing sperm donations (Fam. Code, § 7613, subd. (b)) was not intended to govern ovum donations is easy to conclude since the act was drafted in 1973, long before assisted reproduction and gestational surrogacy became commonplace. (9B West’s U. Laws Ann., supra, U. Parentage Act (2000) Prefatory Note, p. 297.) The drafters’ response to these scientific developments has not been to endorse a counter-textual reading of the provision governing sperm donation, but instead to withdraw the 1973 act entirely and replace it with a new act expressly addressing some of the issues that have arisen from the use of reproductive technology. (9B West’s U. Laws Ann., supra, U. Parentage Act (2000) p. 303 et seq.) In short, Family Code section 7613, subdivision (b), has nothing to do with this case.

The majority seems to believe that, having concluded the sperm donation statute (Fam. Code, § 7613, subd. (b)) does not apply, one must necessarily conclude that K.M. is the mother of the children who developed from the ova she donated to E.G. This reasoning entails a non séquito. The statute, when it applies, merely excludes someone as a possible parent; it does not establish parentage. In order to reach the further conclusion that K.M. is a parent, the majority must entertain a string of questionable assumptions: first, that we would refuse to apply the sperm donation statute (Fam. Code, § 7613, subd. (b), quoted ante, at p. 139), despite its plain language, to cut off the parental rights and responsibilities of a man who donates his sperm through a physician to a woman who is not his wife but with whom he lives (maj. opn., ante, at pp. 140-142), and, second, that two women who live together and divide between themselves the genetic and gestational aspects of pregnancy must be treated in exactly the same way as the man and woman just posited (id., at p. 141). The latter assumption, in turn, embodies additional, unstated assumptions about the effect of the equal protection clause. But ovum donation, which requires substantial medical and scientific assistance, is not sufficiently like sperm donation, which can easily be accomplished by unassisted laypersons, to require equal treatment under the law for all purposes. Accordingly, to recognize the sperm donation statute’s inapplicability does not dispose of this case; it merely leaves us with the same question with which we began, namely, whether K.M. is a second mother of E.G.’s children. Until today, the Johnson intent test would have required us to answer the question in the negative. In my view, it still should.

*155Perhaps the best way to understand today’s decision is that we appear to be moving in cases of assisted reproduction from a categorical determination of parentage based on formal, preconception manifestations of intent to a case-by-case approach implicitly motivated at least in part by our intuitions about the children’s best interests. We expressly eschewed a best interests approach in Johnson, supra, 5 Cal.4th 84, explaining that it “raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy, and confuses concepts of parentage and custody.” (Id., at p. 93, fn. 10.) This case, in which the majority compels E.G. to accept K.M. as an unintended parent to E.G.’s children, in part because of E.G.’s and K.M.’s sexual orientation and the character of their private relationship, shows that Johnson’s warning was prescient. Only legislation defining parentage in the context of assisted reproduction is likely to restore predictability and prevent further lapses into the disorder of ad hoc adjudication.

Respondent’s petition for a rehearing was denied October 19, 2005. Kennard, J., did not participate therein. Werdegar, J., was of the opinion that the petition should be granted.

The opinion of the court was delivered by

Beier, J.:

This appeal from a consolidated child in need of care (CINC) case and a paternity action arises out of an artificial insemination leading to the birth of twins K.M.H. and K.C.H. We are called upon to decide the existence and extent of the parental rights of the known sperm donor, who alleges he had an agreement with the children’s mother to act as the twins’ father.

The twins’ mother filed a CINC petition to establish that the donor had no parental rights under Kansas law. The donor sued for determination of his paternity. The district court sustained the mother’s motion to dismiss, ruling that K.S.A. 38-1114(f) was controlling and constitutional. That statute provides:

“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 birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” K.S.A. 38-1114(f).

Factual and Procedural Background

Many of the underlying facts are undisputed. The mother, S.H., is an unmarried female lawyer who wanted to become a parent *56through artificial insemination from a known donor. She was a friend of the donor, D.H., an unmarried male nonlawyer, who agreed to provide sperm for the insemination. Both S.H. and D.H. are Kansas residents, and their oral arrangements for the donation occurred in Kansas, but S.H. underwent two inseminations with D.H.’s sperm in Missouri.

D.H. accompanied S.H. to a Missouri clinic for the first procedure and provided the necessary sperm to medical personnel. The first procedure did not result in a pregnancy. D.H. did not accompany S.H. to Missouri for the second procedure. Instead, he provided the sperm to S.H., and she delivered it to the Missouri physician responsible for the insemination. The second procedure resulted in S.H.’s pregnancy and the birth of the twins.

There was no formal written contract between S.H. and D.H. concerning the donation of sperm, the artificial insemination, or the expectations of the parties with regard to D.H.’s parental rights or lack thereof.

The twins were bom on May 18, 2005. The day after their birth, S.H. filed a CINC petition concerning the twins, seeking a determination that D.H. would have no parental rights. The petition identified D.H. as “[t]he minor children’s father” and alleged that the twins were in need of care “as it relates to the father” and that “the [f]ather should be found unfit and his rights terminated.” The petition continued to refer to D.H. throughout as the twins’ father.

On May 31, 2005, D.H. filed an answer to the CINC petition and filed a separate paternity action acknowledging his financial responsibility for the children and claiming parental rights, including joint custody and visitation. The CINC and paternity actions were consolidated. S.H. filed a motion to dismiss the paternity action, invoking K.S.A. 38-1114(f). After the motion was filed, the district judge raised questions concerning choice of law and the constitutionality of the statute and ordered the parties to brief these issues along with the other issues arising out of the motion to dismiss.

In her brief, S.H. argued Kansas law should apply because her original oral agreement with D.H. took place in Kansas; the parties reside in Kansas; the sperm resulting in the pregnancy was given *57to her by D.H. in Kansas; and the children reside in Kansas. In her view, the single fact that the procedure was performed by a doctor in Missouri did not constitute a significant contact with that state, and Missouri did not have a sufficient ongoing interest in the parties or in the subject matter of their dispute.

On the merits, S.H. principally relied upon K.S.A. 38-1114(f). S.H. argued that her CINC petition did not constitute her written assent to D.H.’s parental rights under K.S.A. 38-1114(f). She also asserted that the mutual preinsemination intent of the parties—as a single mother-to-be and a sperm donor only, not as coparents— was clear from their actions during the pregnancy. According to S.H., she sought out fertility tests and treatments on her own; D.H. did not attend the second procedure or sonograms or other prenatal medical appointments; and he did not provide emotional support or financial assistance during the pregnancy or after the twins’ birth. She also argued that D.H. was morally, financially, and emotionally unfit to be a father.

In his arguments in the district court, D.H. maintained that he had standing to file his paternity action as the biological father of K.M.H. and K.C.H. On choice of law, D.H. argued that Kansas conflict principles required the court to look to the place of either contract formation or contract performance. He asserted that the “more sensible” approach in this case would be to apply the law of the state where performance occurred, which was, according to him, where the artificial insemination was performed. D.H. said Missouri has no statute barring a presumption of paternity for a known sperm donor for an unmarried woman; paternity is proved by “consanguinity or genetic test.” D.H. also asserted that no doctor would perform an insemination on an unmarried woman in Topeka, Lawrence, or Kansas City, Kansas, and suggested a Kansas doctor could have had a duty to discuss the legal implications of the procedure under Kansas law while a Missouri doctor would not.

In the event the court held that Kansas law governed, D.H. argued that K.S.A. 38-1114(f) unconstitutionally deprived him of his right to care, custody, and control of his children and violated public policy “supporting] the concept of legitimacy and the con*58comitant rights of a child to support and inheritance.” If the statute is constitutional, he asserted, its dictate of nonpaternity of a sperm donor should not apply to him because he had provided his sperm to S.H. rather than to a licensed physician. He also cited the CINC petition’s identification of him as the twins’ “father” and its faulting of him for failing to do things consistent with parenthood. D.H. asserted the wording of the CINC petition was evidence of the parties’ mutual intent to take themselves out from under the statutory provision for nonpaternity. He also contended that he had offered financial assistance and attempted to visit the children in the hospital after their birth and on subsequent occasions, but that he was prevented from doing so by S.H.

The district judge ruled that Kansas law governed, that K.S.A. 38-1114(f) was constitutional and applicable, and that the CINC petition did not constitute a written agreement departing from the provision for nonpaternity set forth in the statute. The judge therefore granted S.H.’s motion, concluding as a matter of law that D.H. had no legal rights or responsibilities regarding K.M.H. and K.C.H.

Issues on Appeal

On appeal, both parties reiterate the arguments they made to the district court, and D.H. alleges for tire first time that another statutory provision and equity favor his side of the case. We therefore address six issues: (1) Did the district judge err in ruling that Kansas law would govern? (2) Did the district judge err in holding K.S.A. 38-1114(f) constitutional under the Equal Protection and Due Process Clauses of the Kansas and the federal Constitutions? (3) Did the district judge err in interpreting and applying the “provided to a licensed physician” language of K.S.A. 38-1114(f)? (4) Did the district judge err in determining that the CINC petition did not satisfy the requirement of a writing in K.S.A. 38-1114(f)? (5) Did K.S.A. 38-1114(a)(4) grant D.H. parental rights? and (6) Does equity demand reversal of the district court?

On this appeal, we also have the benefit of briefs from two amici curiae—one from the Washburn University School of Law’s Children and Family Law Center (Center), which argues that K.S.A. 38-1114(f) is unconstitutional as applied to knoum sperm donors, *59and one from family law professors Joan Heifetz Hollinger, et al., who argue that K.S.A. 38-1114(f) is constitutional and that it should be applied consistently with its plain language to bar D.H.’s assertion of paternity.

Standing and Standard of Review

The parties do not appear to dispute D.H.’s standing to bring a paternity action at this stage in the proceedings, but we note briefly as a preliminary matter that his standing is not in serious doubt. K.S.A. 38-1115(a)(l) permits a child “or any person on behalf of such a child” to bring a paternity action “to determine the existence of a father and child relationship presumed under K.S.A. 38-1114.” It is D.H.’s position that his fatherhood of the twins should be presumed under the statute.

Regarding standard of review, each of the issues raised on appeal presents a pure question of law reviewable de novo by this court. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829 (2002). Although S.H.’s motion was titled “Motion to Dismiss,” the district judge considered materials beyond the pleadings, essentially treating the motion as one for summary judgment. We are therefore mindful of our often stated standard of review following summary judgment in the district court: We must view the evidence in the light most favorable to the nonmoving party, D.H. See Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006). The district court’s judgment for the moving party, S.H., should be affirmed on appeal if there remains no genuine issue of material fact for trial and the case is appropriate for disposition in her favor as a matter of law. See K.S.A. 60-256; Scott v. Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006); Kluin, 274 Kan. at 893.

Choice of Law

The United States Supreme Court has held:

“In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Citation omitted.] In order to ensure that the choice of law is neither arbitrary nor fundamentally *60unfair [citation omitted], the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981).

Various factors are relevant to a choice-of-law determination, including the procedural or substantive nature of the question involved, the residence of the parties involved, and the interest of the State in having its law applied. Sun Oil Co. v. Wortman, 486 U.S. 717, 736,100 L. Ed. 2d 743,108 S. Ct. 2117 (1988) (Brennan, J., concurring). “ ‘As long as Kansas has “ ‘significant contact or [a] significant aggregation of contacts’ ... to ensure that the choice of Kansas law is not arbitrary or unfair,” constitutional limits are not violated.’ [Citations omitted.]” Brenner v. Oppenheimer & Co., 273 Kan. 525, 534, 44 P.3d 364 (2002); see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (citing Allstate Ins. Co. v. Hague, 449 U.S. at 312-13); Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 790, 89 P.3d 908 (2004). Also, to the extent this case is viewed as a contractual dispute, Kansas courts apply the Restatement (First) of Conflict of Laws § 332 (1934), and the doctrine of lex loci contractus, i.e., the law of the state where the contract is made governs. See ARY Jewelers v. Krigel, 277 Kan. 464, 481, 85 P.3d 1151 (2004); Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 209-10, 4 P.3d 1149 (2000); Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, Syl. ¶ 4, 159 P.3d 1042 (2007); Layne Christiansen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 141-42, 38 P.3d 757 (2002). A contract is made where the last act necessary for its formation occurs. ARY Jewelers, 277 Kan. at 481-82; Wilkinson, 269 Kan. at 210; Foundation Property Investments, 37 Kan. App. 2d at 894-95; Layne Christiansen Co., 30 Kan. App. 2d at 141-43.

“Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply. Failure to present facts sufficient to determine where the contract is made may justify a default to forum law.” Layne Christensen Co., 30 Kan. App. 2d at 143-44. In addition, we note that Kansas courts have often leaned toward a lex fori, or law of the forum, approach, opting to apply Kansas law *61absent a clear showing that another state’s law should apply. See Dragon, 277 Kan. at 790; Systems Design v. Kansas City P. O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990). Moreover, our Court of Appeals has recognized in a case focused on the legitimacy of a child that, “[i]n our current mobile society, place of conception of child carries little weight [in choice-of-law determination].” In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert, denied 519 U.S. 870 (1996). Instead, “[w]hether a child is legitimate is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the child and the parent”; considerations include “the relative interests of those states in the determination of the particular issue,” “the protection of justified expectations,” “the basic policies underlying the particular field of law,” and the “certainty, predictability and uniformity of result.” Restatement (Second) of Conflict of Laws §§ 6, 287 (1) & comment d (1969).

D.H. urges us to follow the lead of the Illinois Supreme Court in In Re Marriage of Adams, 133 Ill. 2d 437, 447, 551 N.E.2d 635 (1990), which applied the law of the state where an insemination was performed because it would “fulfill the participants’ expectations and . . . help insure predictability and uniformity of result.”

In Adams, a husband and wife had been Florida residents; their consultations concerning fertility options occurred in Florida; the artificial insemination from an anonymous donor was performed by a Florida doctor in his Florida clinic; and the baby was bom in Florida and was a Florida resident until the wife moved herself and the child to her parents’ home in Illinois and then filed for divorce. The husband sought a determination of nonpaternity, and the court determined that Florida law should govern because Florida had a more significant relationship than Illinois to the parentage dispute. 133 Ill. 2d at 447.

The facts of this case bear little resemblance to the facts of Adams. Here, the parties are Kansas residents. Whatever agreement that existed between the parties was arrived at in Kansas, where they exchanged promises supported by consideration, and D.H. literally delivered on his promise by giving his sperm to S.H. The *62twins were bom in Kansas and reside in Kansas. The only fact tying any of the participants to Missouri is the location of the clinic where the insemination was performed.

Under these circumstances, we hold that Kansas law applies and that significant contacts and a significant aggregation of contacts with Kansas make application of our law to the parties’ claims not only appropriate but also constitutional. This choice is neither arbitrary nor unfair; neither party would have been justified in expecting Missouri to have a controlling interest as to any dispute between them.

Constitutionality ofKS.A. 38-1114(f)

In his brief, D.H. makes a general allegation that K.S.A. 38-1114(f) offends the Constitution. The cases he cites in support discuss both the Equal Protection Clause and the Due Process Clause; we thus presume his challenge relies upon each of these provisions. See U.S. Const, amend. XIV; Kan. Const. Bill of Rights, §§ 2, 18. At oral argument before this court, D.H. conceded that his rights under these provisions do not differ as between the federal and state Constitutions. He also acknowledged that he no longer challenges the statute as unconstitutional on its face; rather, he argues it cannot be constitutionally applied to him, as a known sperm donor who alleges he had an oral agreement with the twins’ mother that granted him parental rights. The amicus brief filed by the Center further clarifies that the constitutional challenge before us is only to the statute as applied to D.H.

The Center insists the statute deprives D.H. of parental rights without due process of law and without a required finding of unfitness. It urges us to dispense with a literal reading of the statute’s language, invoking the purported purpose of the Kansas Parentage Act, K.S.A. 38-1110 et seq,, to encourage fathers to acknowledge paternity and child support obligations voluntarily. It also emphasizes that courts should seek a result geared to the best interests of the child, in this case advancing a public policy favoring the right of every child to two parents, regardless of the means of the child’s conception.

*63As mentioned in summary above, our review of whether a statute is constitutional raises a question of law reviewable de novo. In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 866-67, 112 P.3d 138 (2005). In addition,

“ ‘[t]he constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.’ [Citations omitted].” State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005).

Given the relative newness of the medical procedure of artificial insemination, and thus the newness of K.S:A. 38-1114(f)’s attempt to regulate the relationships arising from it, it is not surprising that the issue raised by D.H. is one of first impression, not only in Kansas but nationally. We therefore begin our discussion of the constitutionality of the statute by surveying the landscape of various states’ laws governing the rights of sperm donors for artificial insemination. This landscape and its ongoing evolution provide helpful context for our analysis of K.S.A. 38-1114(f).

The majority of states that have enacted statutes concerning artificial insemination state that the husband of a married woman bears all rights and obligations of paternity as to any child conceived by artificial insemination, whether the sperm used was his own or a donor’s. See, e.g., Ala. Code § 26-17-21(a) (1992) (“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.”); see also Cal. Fam. Code § 7613(a) (West 2004) (same); Colo. Rev. Stat. § 19-4-106(1) (West 2005) (same); Ill. Comp. Stat. ch. 750 40/3(a) (West 1999) (same); Minn. State § 257.56 Subd. 1 (2007); Mo. Rev. Stat. 210.824(1) (2000) (same); Mont. Code Ann. § 40-6-106(1) (2005); Nev. Rev. Stat. § 126.061(1) (2005) (same); N.J. Stat. Ann. § 9:17-44(a) (2002) (same); N.M. Stat. Ann. § 40-ll-6(A) (Michie 2006) (same); Ohio Rev. Code Ann. § 3111.95(A) (Anderson 2003) (sim*64ilar); Wis. Stat. § 891.40(1) (2005-06) (same). Further, several of these states’ statutes provide that a donor of semen used to inseminate a married woman will not be treated in law as the father of any child conceived, if he is not the woman’s husband. See, e.g., Ala. Code § 26-17-21(b) (1992) (“The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.”); Minn. Stat. § 257.56 Subd. 2 (2007) (same); Mo. Rev. Stat. § 210.824(2) (2000) (same); Mont. Code Ann. § 40-6-106(2) (2005) (same); Nev. Rev. Stat. § 126.061 (2) (2005) (same). One court has observed that these two rules protect the expectations of the married couple, the best interests of the child, and the expectations of the donor. See People v. Sorensen, 68 Cal. 2d 280, 284-88, 66 Cal. Rptr. 7, 437 P.2d 495 (1968).

The 1973 Uniform Parentage Act, promulgated by the National Conference of Commissioners on Uniform State Laws, 9B U.L.A. 377 (2001), provided the model for many of the state artificial insemination statutes that incorporate these two rules. See, e.g., Cal. Fam. Code § 7613; N.M. Stat. Ann. § 40-11-6. Section 5 of the original uniform Act provided:

“(a) If, under the supervision of a licensed physician and with tire 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 die 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 file the husband’s consent with the [State Department of Health], 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 married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” (Emphasis added.) Uniform Parentage Act (1973) § 5; 9B U.L.A. at 407-08.

The wording of this original Act and statutes that imitated it did not address the determination of a sperm donor’s paternity when *65an unmarried woman conceived a child through artificial insemination. The earliest case to address this particular question arose in a state that had not yet adopted any statute regarding the effects of the procedure.

In that case, C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977), a sperm donor filed a paternity suit, seeking parental rights to a child bom when the child’s unmarried mother artificially inseminated herself with the donor’s sperm. In that case, the mother and the donor had been in a long-standing romantic relationship; the donor testified they were contemplating marriage; the mother wanted a child but did not want to have sexual intercourse before marriage; and the insemination procedure was performed at the mother’s home. Three months into the pregnancy, the mother ended her relationship with the donor, and she refused him access to the child after its birth.

The New Jersey court relied upon a common-law presumption of paternity to award visitation rights to the donor as the “natural father” of the “illegitimate child.” Had the mother and the donor been married and conceived the child through artificial insemination, the court said, the donor would have been considered the child’s father. Given the evidence that the parties had intended to parent the child together, the court believed the same result should follow, despite the absence of wedding vows. 152 N.J. Super, at 165-68.

Certain states other than New Jersey either anticipated the need for their original statutes to govern the relationship of a sperm donor to the child of an unmarried recipient as well as a married recipient or modified their original uniform Act-patterned statutes to remove the word “married” from the § 5 (b) language. This meant these states’ statutes contained complete bars to paternity for any sperm donor not married to the recipient, regardless of whether the recipient was married to someone else and regardless of whether the donor was known or anonymous. An example of such a provision reads: “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.” See, e.g., Cal. Fam. Code § 7613(b) *66(West 2004); Ill. Comp. Stat. ch. 750 40/3(b) (West 1999); Wis. Stat. § 891.40(2) (2005-06) (same); see also Colo. Rev. Stat. § 19-4-106(2) (West 2005) (substantially similar); Conn. Gen. Stat. § 45a-775 (2007) (similar); Idaho Code § 39-5405 (2002) (similar); Ohio Rev. Code Ann. § 3111.95(B) (Anderson 2003) (same); Va. Code Ann. § 20-158(A)(3) (2004) (substantially similar).

Four cases interpreting one of these types of statutes covering both married and unmarried recipients and establishing an absolute bar to donor paternity were decided before a 2000 amendment to the uniform Act made it applicable to unmarried as well as married recipients of donor sperm. See Uniform Parentage Act (2000); 9B U.L.A. 295 (West 2001).

The first of the four arose in California in 1986. In that case, Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986), a donor provided sperm to one of two unmarried women who had decided to raise a child together. California had adopted the language of the 1973 Uniform Act with the exception that it had omitted the word “married” in the second subsection. Jhordan C., 179 Cal. App. 3d at 392 (citing then-existing Cal. Civ. Code § 7005 [West 1979], which now appears, substantially unchanged, in Cal. Fam. Code § 7613 [West 2004]). As the court put it:

“[T]he California Legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support. Subdivision (b) states only one hmitation on its application: the semen must be ‘provided to a licensed physician.’ Otherwise, whether impregnation occurs through artificial insemination or sexual intercourse, there can be a determination of paternity with the rights, duties and obligations such a determination entails.” Jhordan C., 179 Cal. App. 3d at 392.

Because the parties had no doctor involved in the donation or insemination and thus the sperm was never “provided to a licensed physician,” the court ruled that the case before it fell outside the statute. It therefore affirmed the lower court’s recognition of the donor’s paternity. Jhordan C., 179 Cal. App. 3d at 398. Although the court addressed its ruling’s impact on the constitutional rights *67of the two women, it did not address any constitutional implications for the donor. Jhordan C., 179 Cal. App. 3d at 395-96.

The second case, In Interest of R.C., 775 P.2d 27 (Colo. 1989), arose in Colorado in 1989. In that case, the district court had refused to admit proffered evidence of an agreement that the donor would act as a father based on relevance; it granted the unmarried mother’s motion to dismiss the donor’s paternity suit based on Colorado’s statute. The Colorado provision, like that in California, applied to both married and unmarried recipients and contained a blanket bar to donor parental rights. See Colo. Rev. Stat. § 19-4-106.

The Colorado Supreme Court reversed the district court and remanded for findings of fact. It explicitly rejected the idea that an unmarried recipient lost the protection of the statute “merely because she knows the donor.” R.C., 775 P.2d at 35. And it did not reach the equal protection and due process challenges raised by the donor. However, it concluded the statute was ambiguous and refused to apply its absolute bar to paternity because the known donor had produced evidence of an oral agreement that he would be treated as father of the child. R.C., 775 P.2d at 35.

The next case, McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989), cert, denied 495 U.S. 905 (1990), involved an unmarried woman who artificially inseminated herself with a known donor’s semen. The donor sought recognition of his paternity, and both he and the woman sought summary judgment. The Oregon artificial insemination statute read:

“If the donor of semen used in artificial insemination is not the mother’s husband: (1) Such donor shall have no right, obligation or interest with respect to a child bom as a result of the artificial insemination; and (2) A child bom as a result of the artificial insemination shall have no right, obligation or interest with respect to the donor.” Ore. Rev. Stat. § 109.239 (1977).

The donor challenged this statute under equal protection and due process principles. He swore out an affidavit in support of summary judgment and argued he had relied on an agreement with the mother that he “would remain active” in the child’s life and “participate in all important decisions concerning the child.” 98 Or. App. at 464. He sought visitation and said that he was willing *68and able to accept the same level of responsibility for the support, education, maintenance, and care of the child and for pregnancy-related expenses that he would have had if the child had been bom from his marriage to its mother. The district court ruled that the donor’s paternity claim was barred by the Oregon statute.

The McIntyre court began its analysis by reciting its equal protection standard of review, which was strict scrutiny, a standard more searching than that applied to such claims in Kansas. See generally State v. Limon, 280 Kan. 275, 283-87, 122 P.3d 22 (2005) (equal protection challenge based on gender discrimination does not require strict scrutiny, i.e., showing classification necessary to serve compelling state interest; rather, court applies intermediate scrutiny, i.e., classification must substantially further legitimate legislative purpose); see Chiles v. State, 254 Kan. 888, 891-93, 869 P.2d 707, cert, denied 513 U.S. 850 (1994); Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987). The Oregon court stated: “A statute that gives a privilege to women while denying it to men is inherently suspect and subject to strict scrutiny, unless the classification (1) is based on specific biological differences between men and women and (2) is rationally related to the purposes of the statute.” McIntyre, 98 Or. App. at 469.

Under this standard, the Oregon court ruled that the statute before it drew an acceptable “classification of unmarried males and unmarried females . . . based on biological differences .... Only a male could contribute the sperm to accomplish conception; only a female could conceive and bear the child.” 98 Or. App. at 469-470. Further, the classification was rationally related to the purposes of the statute, which were: (1) to allow married couples to have children, even though the husband was infertile, impotent, or ill; (2) to allow an unmarried woman to conceive and bear a child without sexual intercourse; (3) to resolve potential disputes about parental rights and responsibilities: that is, (a) the mother’s husband, if he consents, is father of the child, and (b) an unmarried mother is free from any claims by the donor of parental rights; (4) to encourage men to donate semen by protecting them against any claims by the mother or the child; and (5) to legitimate the child and give it rights against die mother’s husband, if he consented to *69the insemination. 98 Or. App. at 467-68, 470. Thus the statute did not offend equal protection either on its face or as applied.

The court also rebuffed the donor’s due process challenge to the statute on its face. 98 Or. App. at 470. However, the donor also argued that the statute violated due process under the federal and state Constitutions as applied to him, a known donor who had an agreement with the mother to share the rights and responsibilities of parenthood. The court agreed the statute would violate the Due Process Clause of the Fourteenth Amendment as applied to the donor if such an agreement was proved. 98 Or. App. at 470-72.

On this point, the court looked to Lehr v. Robertson, 463 U.S. 248, 261, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983), an adoption case. Lehr dealt with the necessity of notice of pending adoption proceedings to an unwed father who had not filed with New York’s putative father registry and had never established a substantial relationship with the child. The Court stated:

“When an unwed father demonstrates a full commitment to die responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ [citation omitted], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. . . . But the mere existence of a biological link does not merit equivalent constitutional protection.” Lehr, 463 U.S. at 261 (quoted in McIntyre, 98 Or. App. at 470).

The Lehr Court ultimately held that the State’s failure to notify the father of adoption proceedings did not deny him due process of law. 463 U.S. at 264-65. No substantive due process right to care, custody, and control of the child had vested in a man who could demonstrate nothing more than a biological link to his offspring. 463 U.S. at 258-62. The Lehr Court noted, however, that an unwed father who demonstrated “a full commitment to the responsibilities of parenthood” could not be absolutely barred from asserting his parental rights without a violation of due process. 463 U.S. at 261.

The McIntyre court reasoned that the Due Process Clause should afford no less protection to a sperm donor who had facilitated artificial insemination than an unwed father, “provided that [the sperm donor] could prove the facts” in his summary judgment affidavit that tended to support the existence of an agreement with *70the mother and his reliance upon it. Because the court concluded the constitutionality of the Oregon statute as applied to this donor would turn on whether he was given an opportunity to establish those facts, summary judgment in favor of the mother was reversed. 98 Or. App. at 472.

The last of the four cases, C. O. v. W. S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (1994), also concluded, as the McIntyre court did, that a statute purporting to be an absolute bar to paternity of sperm donors, while constitutional in the absence of an agreement to the contrary, could be unconstitutional as applied when the donor can establish that an agreement to share parenting existed between him and the unmarried woman who was the recipient of the sperm. 64 Ohio Misc. 2d at 12.

In C.O., the Ohio statute at issue stated: “If a woman is the subject of a non-spousal artificial insemination, a donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor.” See Ohio Rev. Code Ann. § 3111.95 (Anderson 2003). The statute also required artificial insemination to be conducted under the supervision of a physician. As in Jhordan C., an unmarried woman had inseminated herself with a known donor s sperm. Although the court ultimately determined the statute was inapplicable because the mother had failed to comply with the physician involvement requirement, it further opined that the statute would violate due process if applied to the donor, because he and tire mother, at the time of the procedure, had agreed there would be a relationship between the donor and the child. 64 Ohio Mise. 2d at 12.

Since the Uniform Act was amended in 2000 to state simply, “A donor is not a parent of a child conceived by means of assisted reproduction,” two of our sister states have decided three additional cases addressing statutes with identical or substantively indistinguishable provisions governing sperm donors and unmarried recipients. Steven S. v. Deborah D., 127 Cal. App. 4th 319, 25 Cal. Rptr. 3d 482 (2005); In re H.C.S., 219 S.W.3d 33 (Tex. App. 2006); In re Sullivan, 157 S.W.3d 911 (Tex. App. 2005).

*71Two of these cases come from Texas. They do not add much to the legal landscape with which we are concerned in this appeal because their outcomes were driven by standing, not an issue before us. See H.C.S., 219 S.W.3d 33 (known donor lacked standing to pursue parentage adjudication; child conceived through assisted reproduction by unmarried donor’s sister’s same-sex partner using donor’s sperm); Sullivan, 157 S.W.3d 911 (known donor had standing to maintain paternity action; parties had signed preinsemination agreement stating donor would be treated as if he, mother were married).

The third case, Steven S., 127 Cal. App. 4th 319, from California, involved an unmarried woman and a known sperm donor who tried artificial insemination; when that resulted in a miscarriage, they attempted to conceive through sexual intercourse, also without success. Finally, a second artificial insemination attempt resulted in conception. The donor initially was veiy involved with the pregnancy and the child, and he filed a paternity action when the child was 3 years old.

The district court noted that California’s statute presented a bar to paternity for unmarried sperm donors, but ruled in favor of the donor based on equitable estoppel. The donor was known; he had engaged in sexual intercourse with the unwed mother; and she had acknowledged him as the child’s father and had allowed him to participate in the pregnancy and celebrate the birth of the child. The California Court of Appeals reversed, holding that the “words of [Cal. Fam. Code] section 7613, subdivision (b) are clear” and that, under such facts, “[t]here can be no paternity claim” because of the statute’s absolute bar. Steven S., 127 Cal. App. 4th at 326.

None of these three decisions raised or reached the equal protection or due process challenges raised by the donor here.

Where does our Kansas statute fit into this landscape and its ongoing evolution?

In 1985, Kansas became one of the states that adopted portions of the Uniform Parentage Act of 1973 regarding presumptions of paternity, but it did not adopt any provision relating to artificial insemination. See L. 1985, ch. 114, sec. 5 (H.B. 2012).

*72In 1994, Kansas amended its statute to incorporate the 1973 Uniform Act’s § 5(b) as K.S.A. 38-1114(f). See L. 1994, ch. 292, sec. 5 (Subst. H.B. 2583). It did not differentiate between known and unknown or anonymous donors, but it did make two notable changes in the uniform language.

As discussed above, although the 1973 Uniform Act governed tire paternity of children born only to married women as a result of artificial insemination with donor sperm, the version adopted by Kansas omitted the word “married.” See K.S.A. 38-1114(f). This drafting decision demonstrates the legislature’s intent that the bar to donor paternity apply regardless of whether the recipient was married or unmarried.

The other alteration in the 1973 Uniform Act’s language is directly at issue here. The Kansas Legislature provided that a sperm donor and recipient could choose to opt out of the donor paternity bar by written agreement. See K.S.A. 38-1114(f). The legislative record contains no explanation for this deviation from the 1973 Uniform Act’s language. See Minutes of the House Judiciary Committee, January 19, 1994, and February 25, 1994.

This second drafting decision is critical and sets this case apart from all precedent. Our statute’s allowance for a written agreement to grant a sperm donor parental rights and responsibilities means that, although we may concur with the McIntyre and C.O. courts in their constitutional analyses of absolute-bar statutes, we need not arrive at the same result. K.S.A. 38-1114(f) includes exactly the sort of escape clause the Oregon and Ohio courts found lacking— and unconstitutional—in their statutes.

Ultimately, in view of the requirement that we accept as true D.H.’s evidence supporting existence of an oral agreement, we are faced with a very precise question: Does our statute’s requirement that any opt-out agreement between an unmarried mother and a known sperm donor be “in writing” result in an equal protection or due process violation? Although several other states have adopted statutes like K.S.A. 38-1114(f), including language permitting an unmarried woman and a sperm donor to avoid the statutory bar and provide for the paternity of the donor through an “agreement in writing”—see Ark. Code Ann. § 9-10-201 (2002); *73Fla. Stat. § 742.14 (2005); N.H. Rev. Stat. Ann. § 168-B:3(I)(e) (2002); N.J. Stat. Ann. § 9:17-44(b) (2002); N.M. Stat Ann. § 40-11-6(B) (2006)—none of the courts of these states has yet subjected such a statute to a constitutional crucible. We do so now, as K.S.A. 38-1114(f) is applied to D.H.

Equal Protection

K.S.A. 38-1114(f) draws a gender-based line between a necessarily female sperm recipient and a necessarily male sperm donor for an artificial insemination. By operation of the statute, the female is a potential parent or actual parent under all circumstances; by operation of the same statute, the male will never be a potential parent or actual parent unless there is a written agreement to that effect with the female. As discussed with counsel for the parties at oral argument before this court, the male’s ability to insist on father status effectively disappears once he donates sperm. Until that point, he can unilaterally refuse to participate unless a written agreement on his terms exists. After donation, the male cannot force the fatherhood issue. The female can unilaterally decide if and when to use the donation for artificial insemination and can unilaterally deny any wish of the male for parental rights by refusing to enter into a written agreement.

The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In Kansas, as before the United States Supreme Court, statutory gender classifications such as this classification in K.S.A. 38-1114(f) are subject to intermediate, or heightened, scrutiny. Limon, 280 Kan. at 283-87; Chiles, 254 Kan. at 891-93; Farley, 241 Kan. at 669; see Reed v. Reed, 404 U.S. 71, 76-77, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971). In order to pass muster under the federal and state equal protection provisions, a classification that treats otherwise similarly situated individuals differently based solely on the individuals’ genders must substantially further a legitimate legislative purpose; the government’s objective must be important, and the classification substantially related to achievement of it. Ne *74 vada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 729, 155 L. Ed. 2d 953, 123 S. Ct. 1972 (2003); United States v. Virginia, 518 U.S. 515, 533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996); Farley, 241 Kan. at 669.

Given the biological differences between females and males and the immutable role those differences play in conceiving and bearing a child, regardless of whether conception is achieved through sexual intercourse or artificial insemination, we are skeptical that S.H. and D.H. are truly similarly situated. However, assuming for purposes of argument that they are, we perceive several legitimate legislative puiposes or important governmental objectives underlying K.S.A. 38-1114(f).

As the McIntyre court observed about the Oregon statute, K.S.A. 38-1114(f) envisions that both married and unmarried women may become parents without engaging in sexual intercourse, either because of personal choice or because a husband or partner is infertile, impotent, or ill. It encourages men who are able and willing to donate sperm to such women by protecting the men from later unwanted claims for support from the mothers or the children. It protects women recipients as well, preventing potential claims of donors to parental rights and responsibilities, in the absence of an agreement. Its requirement that any such agreement be in writing enhances predictability, clarity, and enforceability. Although the timing of entry into a written agreement is not set out explicitly, the design of the statute implicitly encourages early resolution of the elemental question of whether a donor will have parental rights. Effectively, the parties must decide whether they will enter into a written agreement before any donation is made, while there is still balanced bargaining power on both sides of the parenting equation.

In our view, the statute’s gender classification substantially furthers and is thus substantially related to these legitimate legislative purposes and important governmental objectives. K.S.A. 38-1114(f) establishes die clear default positions of parties to artificial insemination. If these parties desire an arrangement different from the statutory norm, they are free to provide for it, as long as they do so in writing. Encouraging careful consideration of entiy into *75parenthood is admirable. Avoidance of the limbo in which D.H. finds himself is a worthy legislative goal. We therefore hold that the application of K.S.A. 38-1114(f) to D.H. does not violate equal protection.

Due Process

Neither D.H. nor the Center explicitly addresses whether the due process challenge to K.S.A. 38-1114(f) in this case is based on procedural due process principles or substantive due process doctrine. Nor did the Oregon or Ohio courts that decided McIntyre and C.O. draw this distinction or comment upon it. See 98 Or. App. at 471-72; 64 Ohio Mise. 2d at 12. To the extent D.H.’s due process argument is couched in procedural language, i.e., that K.S.A. 38-1114(f)’s requirement of a writing, strictly interpreted, denies him “a meaningful opportunity to be heard” on the claim that there was, in fact, an oral agreement, we simply disagree. Indeed, for purposes of ruling on the propriety of the district judge’s summary disposition in favor of S.H., we accept D.H.’s evidence that there was an oral agreement. Still, he has been denied no procedural right to which he was entitled; the statute merely sets up a burden of proof that his own inaction before donating his sperm left him unable to meet.

D.H.’s ignorance of the statute’s requirement of a writing to record any agreement between him and S.H. as to his parental rights does not necessitate a ruling that the statute cannot be constitutionally applied to him. See Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 389, 224 Cal. Rptr. 530 (1986) (court analyzes applicability of artificial insemination statute despite parties’ ignorance of it); see also Lehr v. Robertson, 463 U.S. 248, 264, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983) (failure to file with putative father registry out of ignorance of law insufficient reason to criticize law itself); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of the law is no excuse). It is apparent to us that the only potentially meritorious due process argument before us focuses on the assertion of D.H.’s fundamental right to care, custody, and control of his children. This raises a substantive due process concern, rather than a problem over the absence of a *76specific procedural protection. Indeed, if anything, D.H. and the Center advocate for less rather than more formality in process; they regard the requirement of a writing to memorialize any agreement between a sperm donor and a recipient as so heavy a procedural burden that it tips the constitutional scales in favor of D.H. here.

In addition to relying on McIntyre and C.O., which, as previously discussed, addressed complete-bar statutes unlike our own, D.H. and the Center emphasize the United States Supreme Court’s decision in Lehr. See 463 U.S. at 261. Lehrs facts limit its utility here. As mentioned above, that case involved an unwed biological father petitioning to set aside an order of adoption based on his failure to be notified of the adoption proceedings. A New York statute guaranteed protection of any interest such a putative father could have in assuming a responsible role in the future of his child: The father in Lehr had failed to avail himself of this protection and had taken no other action that would have established a protectable interest in the child. While a state may not absolutely bar a biological parent from asserting parental rights—the proposition for which D.H. and the Center cite Lehr—Kansas has not done so. Even a sperm donor with no relationship to a child’s mother can forge and protect his parental rights by insisting on a written agreement.

D.H. and the Center argue that D.H.’s other efforts to assert his entitlement to and intention to exercise parental rights-—stymied, they say, by S.H.—should be enough. S.H., of course, casts D.H.’s behavior in a considerably less favorable light. Again, however, for purposes of review of the district judge’s summary deposition in S.H.’s favor, we accept D.H.’s version of events. The infirmity in his substantive due process argument does not He in those factual allegations for which he has provided evidence in the record, including his allegation of an oral agreement; the infirmity lies in the absence of any proof of an agreement with S.H. in writing.

We simply are not persuaded that the requirement of a writing transforms what is an otherwise constitutional statute into one that violates D.H.’s substantive due process rights. Although we agree with the Center that one goal of the Kansas Parentage Act as a *77whole is to encourage fathers to voluntarily acknowledge paternity and child support obligations, the obvious impact of the plain language of this particular provision in the Act is to prevent the creation of parental status where it is not desired or expected. To a certain extent, D.H. and the Center evidently misunderstand the statute’s mechanism. It ensures no attachment of parental rights to sperm donors in the absence of a written agreement to the contrary; it does not cut off rights that have already arisen and attached.

We are confident this legislative design realizes the expectation of unknown or anonymous sperm donors, whether their motive for participation in artificial insemination is altruistic or financial. To the extent it does not realize the expectation of a known sperm donor, the statute tells him exactly how to opt out, how to become and remain a father. If, as the Center argues, genetic relationship must be destiny, then an anonymous donor with no intention to be a father would nevertheless automatically become one. It is evident to us the legislature chose an alternate arrangement. Neither D.H. nor the Center has convinced us there is a constitutional mandate for this court to make an independent policy choice.

We also reject the argument from D.H. and the Center that the statute inevitably makes the female the sole arbiter of whether a male can be a father to a child his sperm helps to conceive. This may be true, as we discussed above, once a donation is made, a recipient who becomes pregnant through artificial insemination using that donation can refuse to enter into an agreement to provide for donor paternity. This does not make the requirement of written agreement unconstitutional. Indeed, it is consistent with United States Supreme Court precedent making even a married pregnant woman the sole arbiter, regardless of her husband’s wishes, of whether she continues a pregnancy to term. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 69-71, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976). As discussed above, before a donation is made, a prospective donor has complete autonomy to refuse to facilitate an artificial insemination unless he gets an agreement in writing to his paternity terms. This is more than most fathers, wed or unwed to their children’s mothers, can ever hope for. See Note and Comment, A Tale of Three Women: A Survey of the Rights *78 and Responsibilities of Unmarried Women Who Conceive by Alternative Insemination And A Model for Legislative Reform, 19 Am. J. L. & Med. 285, 304 (1993) (absence of executed writing evidence donor failed to, in words of Lehr, “grasp opportunity” to parent; chance to condition donation upon execution of agreement puts donor in control). The requirement that a sperm donor’s and recipient’s agreement be in writing does not violate D.H.’s due process rights.

All of this being said, we cannot close our discussion of the constitutionality of K.S.A. 38-1114(f) without observing that all that is constitutional is not necessarily wise. We are mindful of, and moved by, the Center’s advocacy for public policy to maximize the chance of the availability of two parents—and two parents’ resources—to Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries. In particular, Britain and The Netherlands now ban anonymous sperm donations, near-perfect analogs to donations from known donors who will have no role beyond facilitating artificial insemination. These shifts formally recognize the understandable desires of at least some children conceived through artificial insemination to know the males from whom they have received half of their genes. The Human Fertilisation and Embryology Authority Act of 1990, as amended by Disclosure of Donor Information, Regulations 2004 No. 1511 (requiring, effective April 2005, British donors’ identities to be made available to donor-conceived children when children become 18); Netherlands Embryos Bill, Article 3 Dutch Ministry of Health, Welfare, and Sport (2004) www.minvws.nl/en (effective June 2004, child bom using donated sperm has right to obtain information about biological father at age 16). As one such child recently wrote,

“[tjhose of us created with donated sperm won’t stay bubbly babies forever. We’re all going to grow into adults, and form opinions about the decision to bring us into the world in a way that deprives us of the basic right to know where we came from, what our history is and who both our parents are.”

Clark, My Father was an Anonymous Sperm Donor, The Washington Post, December 17, 2006, at B01 (also currently available *79at http://www.washingtonpost.com/wp-dyn/ content/article/2006/ 12/15/AR200612l501820.html). We sympathize. However, weighing of the interests of all involved in these procedures as well as the public policies that are furthered by favoring one or another in certain circumstances, is the charge of the Kansas Legislature, not of this court.

“Provided to a Licensed Physician”

D.H.’s next argument on appeal is that the district judge erred in applying K.S.A. 38-1114(f) to him because his sperm was not “provided to a licensed physician,” as required by the statute. Instead, it was provided to S.H., who, in turn, provided it to the medical personnel who performed the insemination.

D.H. opens this argument by citing a Kansas Court of Appeals case involving a petition to terminate the rights of a putative father for the proposition that “[sjtatutes pertaining to adoption, relinquishment, or termination of parental rights are strictly construed as they affect a parent’s liberty interest in the custody and control of his or her children.” In re J.A.C., 22 Kan. App. 2d 96, Syl. ¶ 3, 911 P.2d 825 (1996). This case has no influence on our de novo standard of review here. As discussed at length with regard to the constitutionality of K.S.A. 38-1114(f), absent a written agreement to the contrary, D.H. is not a putative father. He is a sperm donor only. His link to the twins is purely, and solely, biological. It does not give rise to a constitutionally protected right. See Lehr, 463 U.S. at 261.

When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent. See CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of *80 Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002); State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).

Again, K.S.A 38-1114(f) states in pertinent part: “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 birth father of a child . . . .” D.H.’s argument focuses on the phrase “provided to licensed physician,” essentially reading it to say “directly and personally provided to a licensed physician” or “provided to a licensed physician by the donor.” This argument lacks merit.

The language of the statute is clear and unambiguous, and we will not add to it, as D.H. suggests. The words “the donor” form the subject of the predicate “is treated as if he were not the birth father.” The lengthy dependent clause “provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife” modifies “semen.” K.S.A. 38-1114(f) does not require the donor himself to provide his sperm to the physician performing the insemination. It requires only that the donor’s sperm be provided to the physician by an unspecified someone or something. The fact that S.H. was that someone here did not prevent application of the statute to this situation.

“Unless Agreed to in Writing”

Assuming arguendo the constitutionality and applicability of K.S.A. 38-1114(f), D.H. next argues that the statute’s requirement of a written agreement should be deemed satisfied by the CINC petition filed by S.H. or by the CINC petition and his paternity petition, read together. He asserts that the statute sets forth no requirement that a written agreement be entered into at or before the time of the insemination and points out that the CINC petition referred to him “56 times” as the twins’ “father.” S.H. argues that there was no “meeting of the minds” between her and D.H. regarding coparenting and that the pleadings evidence none.

There is no technical definition of “agreed to” or “writing” in the Kansas Parentage Act of which K.S.A. 38-1114(f) is a part. Although these words or forms of them are defined elsewhere in Kansas statutes, see, e.g., K.S.A. 2006 Supp. 84-1-201(3) (defining *81“agreement” as used in Kansas version of Uniform Commercial Code); K.S.A. 2006 Supp. 84-1-201(46) (defining “written,” “writing” as used in same), these definitions, by their terms, are inapplicable. We therefore give these words as used in K.S.A. 38-1114(f) the meaning accorded them in everyday English. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).

When we do so, there can be no doubt that the pleadings filed by the parties are “in writing.” However, interpreting them separately or together to prove the parties “agreed to” D.H.’s status as a father would require Lewis Carroll’s looking glass. The absence of such an agreement necessitated the drafting and filing of the pleadings in the first place. Their existence and substance do not memorialize accord, rather, its opposite. A CINC petition to terminate D.H.’s parental rights under K.S.A. 38-1531 may have been an odd procedural vehicle for effecting S .H.’s desire—a court order stating that D.H. never acquired any parental rights under K.S.A. 38-1114(f). A declaratoiy judgment action might have been better suited to her legal position. But she and her counsel were in uncharted waters. We will not hold that the pleadings constitute a written agreement by operation of law.

Parental Rights Under KS.A. 38-1114(a)(4)

In the final paragraphs of his brief on appeal, D.H. argues that this case should be controlled by K.S.A. 38-1114(a)(4) rather than K.S.A. 38-1114(f). K.S.A. 38-1114(a)(4) provides:

“(a) A man is presumed to be the father of a child if:

“(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made [by amendment of birth certificate] in accordance with K.S.A. 38-1130 or [filing of birth certificate under K.S.A.] 65-2409a, and amendments thereto.”

In his brief before the district court, D.H. attempted to reserve “the right to make claims based on ratification, estoppel, and common law,” but this specific contention under K.S.A. 38-1114(a)(4) was never raised below. Nevertheless, given the status of this case as one of first impression and the potential for denial of funda*82mental rights, see In re M.M.L., 258 Kan. 254, 261, 900 P.2d 813 (1995), we address its merit.

A specific statute controls over a general statute. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 311, 955 P.2d 1136 (1998). Likewise, a specific provision within a statute controls over a more general provision within the statute. K.S.A. 38-1114(f) is far more specific to cases involving artificial insemination by a sperm donor such as D.H. than the general presumption of paternity set out in K.S.A. 38-1114(a)(4). D.H.’s claim under K.S.A. 38-1114(a)(4) is without merit.

Equity

For the first time in his appellate reply brief, D.H. asserts that the district court must be reversed because S.H. has “unclean hands.” In essence, he argues that he, a nonlawyer, was tricked by lawyer S.H., who failed to inform him of the statute and failed to explain how the absence of independent legal advice or a written agreement could affect his legal rights. He asserts that he asked S.H. about whether he needed a lawyer or whether they should put their arrangement in writing and was told neither was necessary. This behavior, he alleges, may have constituted a violation of S.H.’s ethical duties as a licensed lawyer.

Despite D.H.’s attempt in his district court brief to reserve “the right to make claims based on ratification, estoppel, and common law,” this invocation of equity was never further preserved for review by pursuit in the district court or by inclusion in his opening appellate brief. See McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005) (issue not briefed by appellant deemed waived, abandoned); Titterington v. Brooke Insurance, 277 Kan. 888, Syl. ¶ 3, 89 P.3d 643 (2004) (“[a] point raised only incidentally in a party’s brief but not argued in the brief is deemed abandoned”); Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003) (issue not raised in district court not preserved for appellate court). Even if we would nonetheless be inclined to reach its merit, given the posture of the case and the fundamental nature of the rights in play, we also are prevented from doing so by an inadequate appellate record of the underlying *83facts. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003) (duty of party to furnish appellate record sufficient to enable review of issue). D.H. never proffered evidence to support his assertions of nefarious conduct by S.H. The evidence he presented to the district court focused only on the existence of an oral agreement and his efforts at support; even assuming all of this evidence to be true, it is insufficient under what we have held is a constitutional statute.

Generally speaking, mere ignorance of the law is no excuse for failing to abide by it. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). There may be a case in the future in which a donor can prove that the existence of K.S.A. 38-1114(f) was concealed, or that he was fraudulently induced not to obtain independent legal advice or not to enter into a written agreement to ensure creation and preservation of his parental rights to a child conceived through artificial insemination. This is not such a case.

Affirmed.

Allegrucci, Nuss, Luckert, and Rosen, JJ, not participating.

Lockett, J., Retired, Caplinger and Hill, JJ, assigned.

McFarland, C.J.,

concurring: I agree with the majority’s conclusion that K.S.A. 38-1114(f) is constitutionally permissible and operates to bar D.H. from asserting parental rights relative to the twins K.M.H. and K.C.H.

I think it is helpful to consider subsection (f) in context with other provisions of K.S.A. 38-1114. The statute is lengthy and states the presumptions of paternity in various factual situations. Illustrative thereof is the following excerpt:

“(a) A man is presumed to be the father of a child if:

*84“(1) The man and the child’s mother are, or have been, married to each other and the child is bom during the marriage or within 300 days after the marriage is terminated by death or by the filing of a journal entry of a decree of annulment or divorce.

“(2) Before the child’s birth, the man and the child’s mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:

(A) If the attempted marriage is voidable, the child is bom during the attempted marriage or within 300 days after its termination by death or by the filing of a journal entiy of a decree of annulment or divorce; or

(B) if the attempted marriage is void, the child is bom within 300 days after the termination of cohabitation.

“(3) After the child’s birth, the man and the child’s mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is void or voidable and:

(A) The man has acknowledged paternity of the child in writing;

(B) with the man’s consent, the man is named as the child’s father on the child’s birth certificate; or

(C) the man is obligated to support the child under a written voluntary promise or by a court order.

“(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made in accordance with K.S.A. 38-1130 or 65-2409a, and amendments thereto.

“(5) Genetic test results indicate a probability of 97% or greater that the man is the father of the child.” K.S.A. 38-1114(a).

The statute further provides;

“(b) A presumption under this section may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man or as provided in subsection (c). If a presumption is rebutted, the party alleging the existence of a father and child relationship shall have the burden of going forward with the evidence.

“(e) If a presumption arises under this section, the presumption shall be sufficient basis for entry of an order requiring the man to support the child without further paternity proceedings.” K.S.A. 38-1114(b), (e).

The bulk of the statute is concerned with establishing presumptions as to the paternity of a child. These are presumptions that may be rebutted. Subsection (f) is the final provision of that statute and is in stark contrast to the rest of the statute. No presumption is involved therein. Subsection (f) states:

*85“(f) 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 birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” K.S.A. 38-1114(f).

The biological father of a child conceived under the circumstance described therein is to be treated in law as not being the birth father, absent an agreement in writing.

To come under the statute, an unmarried woman must desire to be impregnated by artificial insemination in a procedure by a licensed physician. She could elect to have an anonymous donor from a sperm bank. The statute would bar the donor from the rights of parentage even if his identity were later determined. If the woman elects to ask an acquaintance to be the donor and he agrees, he has no parentage rights unless the parties agree thereto in writing. If the parties agree in writing, the donor is assuming not only the privileges associated with parenthood but the possible financial burden of child support for 18 years or so. The man might feel flattered to be asked to be the donor and even be assured no child support would ever be sought. Without the statute, the donor would likely have no defense to child support claims asserted by the mother or the child.

Under the statute, absent an agreement in writing, the prospective mother would truly become a single parent upon a successful pregnancy, having assumed all parental privileges, duties, and obligations to any child bom as a result of the artificial insemination. If the donor she sought out wants to assume parental privileges and responsibilities, and the prospective mother does not want this and will not agree, the would-be donor can say no deal and walk away. There is no child and no issue as to future rights and/or duties of the would-be donor. The prospective mother can seek out a sperm bank, another artificial insemination donor, proceed in some other manner outside the subsection, or abandon the idea of pregnancy. The subsection (f) provision appears to be aimed at protecting both parties from unwanted duties and/or obligations being imposed without their consent in the very limited factual situation to which it applies.

*86Further, as the majority notes, it is not ruling out the possibility that some future factual situation might result in the statutory bar being held inapplicable under those specific facts.

CAPLINGER, J.,

dissenting: I respectfully disagree with the majority’s analysis of the constitutionality of K.S.A. 38-1114(f) as applied to D.H. I would hold the statute unconstitutional as applied to D.H. for the reason that it violates his fundamental right to parent his children without due process of law.

In reaching its conclusion that K.S.A. 38-1114(f) comports with due process, the majority analyzes at least two extra-jurisdictional cases which hold that statutes creating an absolute bar to donor paternity violate due process rights as applied to a known donor: McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989), cert denied 495 U.S. 905 (1990). (Oregon statute’s absolute bar to paternity violated due process as applied to known sperm donor if donor could establish on remand that he and child’s mother agreed that donor would be the natural father of the child); and C.O. v. W.S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (1994) (Ohio statute’s absolute bar to paternity of known donor violated due process as applied to donor where mother solicited participation of donor and agreed that known donor would have relationship with child).

Significantly, the majority concurs with “the McIntyre and C. O. courts in their constitutional analyses of absolute bar statutes.” 285 Kan. at 72. Nevertheless, the majority concludes it need not arrive at the same result because “K.S.A. 38-1114(f) provides exactly the sort of escape clause the Oregon and Ohio courts found lacking— and unconstitutional—in their statutes.” 285 Kan. at 72.

I agree with the majority’s conclusion that “absolute bar” statutes like those at issue in McIntyre and C.O. violate due process. I do not agree, however, that the K.S.A. 38-1114(f) provision permitting a donor to “opt out” of the statute’s paternity bar saved the statute’s constitutionality under the facts of this case.

The statutory provision at issue here bears repetition at this juncture. K.S.A. 38-1114(f) provides:

“The donor of semen provided to a licenced physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were *87not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” (Emphasis added.)

Before discussing the specific basis for my disagreement with the majority’s conclusion that the italicized proviso renders the statute constitutional as applied to D.H., I would first note that neither the McIntyre court nor the C.O. court found, as the majority suggests, that their respective state statutes were unconstitutional because they lacked an “escape clause” providing for a written agreement between the parties.

The court in McIntyre found the applicable statute problematic because it barred the petitioner from the rights and responsibilities of fatherhood “even if respondent had agreed with [the donor that he would have parental rights] before he gave her his semen in reliance on that agreement.” 98 Or. App. at 468. The court noted the statute contained no qualifying language and, in a footnote, compared a Washington state statute which contained a written opt-out provision similar to that found in K.S.A. 38-1114(1). 98 Or. App. at 468 n.2; see also In Interest of R.C., 775 P.2d 27, 33 n.7 (Colo. 1989) (recognizing in footnote that “[a] growing number of legislatures have sought to clear up this confusion by enacting laws that extinguish parental rights of semen donors unless the donor acknowledges his paternity in writing”). The court in Mclntryre, however, did not determine whether the addition of an opt-out provision like that at issue here would have resolved its due process concerns.

Moreover, while the court in C.O. did point out that a statute that “absolutely extinguishes a father’s efforts to assert the rights and responsibilities of being a father . . . runs contrary to due process standards,” it did not compare any statutes containing a written opt-out provision. Further, it found its own statute lacking because it did not take into account the parties’ oral agreement that the donor would have a relationship with any child conceived of the insemination. 64 Ohio Misc. 2d at 12. The court in C.O. did not, as the majority suggests, indicate that a written opt-out agreement would have ameliorated the court’s due process concerns.

In fact, the expansive rationale in C.O. suggests otherwise:

*88“Public policy supports the concept of legitimacy, and the concomitant rights of a child to support and inheritance. [Citation omitted.] A father’s voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action.” 64 Ohio Mise. 2d at 12.

Thus, while the courts in C.O. and McIntyre suggested that it was their respective statute’s “absolute bar” that ran afoul of due process safeguards, neither court held that a requirement permitting the parties to opt out of the statute, so long as the agreement was memorialized in writing, would satisfy due process safeguards. As the majority recognizes, no court has considered the specific issue facing this court.

For the reasons discussed below, I would find that K.S.A. 38-1114(f)’s inclusion of a written “opt-out” provision does not save it from the same fate as the statutes considered by the courts in McIntyre and C.O.—i.e., it is unconstitutional because it violates due process as applied to the donor.

Requirement that donor take affirmative action to protect his parental rights

In concluding that the opt-out provision in K.S.A. 38-1114(f) satisfies due process requirements, the majority states that D.H.’s “own inaction before donating his sperm” left him unable to meet the statute’s requirements of a written agreement. 285 Kan. at 75. (Emphasis added.) Therein lies the constitutional problem with the statute. Fundamental rights must be actively waived, rather than passively lost due to inaction.

Initially, before analyzing this issue, I would note that the terminology employed by the majority, i.e., that D.H. failed to “opt out” of the statute, is a misnomer. In effect, the statute requires a known sperm donor, regardless of any agreement or understanding the donor may have as to his role in parenting a child conceived from his sperm, to opt in to parenthood or forever waive his right to parent. As discussed below, under the circumstances of this case, the statute’s requirement that D.H. take affirmative action to preserve his fundamental right to parent, or to “opt in” to parenting, violates fundamental principles of due process.

*89Pursuant to the Fourteenth Amendment to the United States Constitution, no State shall “deprive any person of life, liberty, or property, without the due process of law.” The Supreme Court has held that the Fourteenth Amendment “guarantees more than fair process” and “includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ [Citation omitted.]” Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). It is well established that the right to parent is a fundamental right protected by the United States Constitution. See, e.g., Troxel, 530 U.S. at 65-66; Stanley v. Illinois, 405 U.S. 645, 651-52, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972).

The Supreme Court has further consistently held that courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege” and thus must result from a free and conscious choice. 304 U.S. at 464. And, when faced with a waiver of a fundamental right, courts “do not presume acquiescence in the loss of fundamental rights.” 304 U.S. at 464; see also Hodges v. Easton, 106 U.S. (16 Otto) 408, 412, 27 L. Ed. 169, 1 S. Ct. 307 (1882) (right to trial by jury in a civil case is a fundamental right and every reasonable presumption must be indulged against its waiver).

The majority recognizes that K.S.A. 38-1114(f) permits a donor to waive his right to parent simply by his own inaction rather than through an intentional act relinquishing that right. For this reason, I would find the statute’s “escape clause” does not satisfy due process requirements.

Effect of “ignorance of the law” on an individual’s fundamental right to parent

Nor can I agree with the majority’s conclusion that D.H.’s ignorance of the statute’s writing requirement has no effect on the statute’s application. 285 Kan. at 75. In support of this determination, the majority essentially reiterates the often-stated principle that “ignorance of the law is no excuse,” and cites three cases in *90support of its application of this principle to the facts here: Lehr v. Robertson, 463 U.S. 248, 264, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983); Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 389, 224 Cal. Rptr. 530 (1986); and State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). However, none of these cases hold that an individual can relinquish a fundamental right simply through ignorance of the law.

As the majority notes, the Kansas Supreme Court held in Murray, 231 Kan. at 536, that “[ijgnorance of the law is no excuse.” Further, the court referred to the “impressive body of authority and the ancient maxim” supporting this statement. 231 Kan. at 536. However, the question before the court in Murray was not whether an individual may waive a fundamental right by ignorance of a law requiring affirmative action to protect that right. Rather, the question in Murray was whether the meetings conducted by the board of trustees of a county hospital were covered by the Kansas Open Meetings Act, in light of the board members’ claim that any violation of the Act was in “good faith” because they had been advised by the county attorney that their meetings were not covered by the Act. I simply cannot equate such “ignorance,” and the effect of such ignorance, with a father’s preconception waiver of his right to parent a child because of his ignorance of a statute requiring him to “opt in” to parenting.

Jhordan C., 179 Cal. App. 3d 386, also cited by the majority, is unpersuasive for the obvious reason that it is not precedential authority. More importantly, while the majority cites Jhordan C. in support of its statement that D.H.’s ignorance of our Kansas statute does not preclude its application here, the court in Jhordan made no determination whatsoever as to whether a donor’s ignorance of a California statute would suffice to waive his fundamental right to parent. Instead, the Jhordan C. court merely noted in reciting the factual background that the parties were “completely unaware of the existence” of the statute. 179 Cal. App. 3d at 389. Moreover, the court in Jhordan C. ultimately concluded California’s statute could not bar the donor’s rights because the donor’s sperm had not been provided to a licensed physician. 179 Cal. App. 3d at 397-98.

*91The third case cited by the majority in support of its conclusion that the donors “ignorance of the law is no excuse,” is Lehr, 463 U.S. at 264. There, the United States Supreme Court considered whether a biological father should receive notice of adoption when that father never established a relationship with his child and further failed to comply with a New York law requiring him to file notice with a putative father registry. The Court recognized that familial relationships are “an interest in liberty entitled to constitutional protection” and state statutes that take away this right must comport with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 463 U.S. at 258.

As the majority points out, the Lehr Court held that the putative father’s ignorance of the requirement that he must mail a postcard to the putative father registry to guarantee his right to receive notice of the adoption proceedings of his daughter was not a “sufficient reason to criticize the law itself.” 463 U.S. at 264.

However, the majority’s focus on this aspect of the Lehr decision is misplaced in light of Lehrs recognition and characterization of a father’s fundamental rights to parent.

The Lehr Court noted it was not concerned with whether the father had a significant relationship with his biological daughter but, instead, was focused on whether New York protected his opportunity as a father to form that relationship. 463 U.S. at 262. The Court examined New York’s putative father registry and found that because the biological father retained the control to receive notice of adoption proceedings, the Due Process Clause was not violated. 463 U.S. at 264.

In so ruling, the Court noted that the impetus for New York’s putative father registry was the holding in Stanley v. Illinois, 405 U.S. 645, where the Supreme Court struck down a statute that automatically classified any man who fathered a child out of wedlock as an unfit parent. The Court in Lehr further noted that a special committee charged by the New York Legislature with forming the law after Stanley was supposed to “accommodate both the interests of the biological fathers in their children and the children’s interests in prompt and certain adoption procedures.” 463 U.S. at 263.

*92Thus, when considering Lehr and its application here, it is vital to remember the Court upheld a statute that terminated the parental rights of a biological father, but it did so in the context of a pending adoption proceeding. Because a nonbiological father figure was ready, willing, and able to assume the responsibilities of parenthood, the Lehr Court found no reason to delay the child’s adoption simply because the previously absentee biological father suddenly asserted rights, yet failed to take the steps necessaryas provided by a statuteto preserve those rights. 463 U.S. at 264-65.

Placed in context, the Lehr Court’s affirmance of the termination of the biological father’s parental rights makes sense, and the Court’s observation that “ ‘[p]arental rights do not spring full-blown from the biological connection between parent and child’ ” is merited. 463 U.S. at 260 (quoting Caban v. Mohammed, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct. 1760 [1979] [Stewart, J., dissenting] [ruling that the adoption of two children by their stepfather would violate the Equal Protection rights of the biological father, who had constantly been involved with the fives of the children]).

Here, however, we are not faced with a situation in which an additional party seeks to assert parental rights; instead, only the biological father seeks to assert his rights to parent his children. Thus, the need for a determination of parental rights does not exist in the same urgency that it exists in an adoption situation where all parties involved, particularly the child, are best served with clear laws and a certain ruling.

I would urge the majority to consider the complete rationale of Lehr: “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by comfing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the Due Process Clause.” 463 U.S. at 261 (quoting Caban, 441 U.S. at 392).

That is the scenario with which this court is faced. A putative father has come forward to participate in the rearing of his children, emotionally and financially; consequently, his interest in doing so is entitled to full protection under the Due Process Clause. Instead of being given this protection and an opportunity to prove *93that he intended to actively parent his children, D.H. has been subjected to the workings of a statute of which he was unaware, that required him to “opt in” to fatherhood before ever donating his sperm, or be forever barred from parenting his children.

I strongly disagree with the majority’s conclusion that D.H.’s own inaction, whether due to ignorance of the law or otherwise, constituted a waiver of his rights to parent. Because the rights to parent are fundamental, those rights may be waived only through an intentional, free, and meaningful choice. Here, the record indicates D.H. was not even aware of K.S.A. 38-1114(f), much less its requirement that he must enter into a written agreement formalizing his intent to parent his child before he provided his sperm to S.H. I would find the statute’s requirement that a known sperm donor affirmatively take action to preserve his fundamental rights to parent constituted a violation of due process as applied to D.H.

The State’s interest in furthering predictability, clarity, and enforceability

The majority declares that the K.S.A. 38-1114(f) requirement that any agreement regarding parenting be in writing “enhances predictability, clarity, and enforceability.” 285 Kan. at 74. Further, it suggests that “avoidance of the limbo in which D.H. finds himself in is a worthy legislative goal.” 285 Kan. at 75.

“Clarity,” while an admirable goal, has little do with the constitutionality of this statute. Significantly, in Stanley, 405 U.S. 645, the United States Supreme Court addressed the allegations of clarity and administrative convenience as justifications for a purported violation of the Due Process Clause. There, an unwed father challenged an Illinois statute which resulted in his classification as an unfit father and the removal of his children from their home after the death of the mother because he had not been married to the children’s mother. The State argued it was unnecessary to hold individualized hearings to determine the fitness of unwed fathers before those fathers were separated from their children because unmarried fathers were “per se” unfit.

The Supreme Court disagreed and ruled in accordance with the Due Process Clause that Stanley was entitled to a fitness hearing *94before his children were taken from him. 405 U.S. at 649. The Court specifically addressed the argument that individualized hearings for unmarried fathers would create an administrative inconvenience and noted that although the State has an interest in prompt procedures, “the Constitution recognizes higher values than speed and efficiency.” 405 U.S. at 656.

Thus, even though K.S.A. 38-1114(f) may provide a quick and clear method to dismiss paternity actions, it must comport with the values inherent in the Constitution, namely due process of law.

The Court in Stanley pointed out that prompt procedures are not the only consideration important to citizens:

“Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.” 405 U.S. at 656-57.

Kansas law provides a presumption that sperm donors are not the legal parents of any children conceived of the donated sperm, absent a written agreement. In the case of a known sperm donor and an unmarried woman, however, the donor should be allowed the opportunity for a hearing to establish his intent to be something other than a sperm “donor”—i.e., to establish his paternity and rights as a parent. Simply stated, I would find the statute’s clarity does not justify its constitutional violation.

The requirement of a “writing” under K.S.A. 38-1114(f)

It is interesting to note that in considering whether the K.S.A. 38-1114(f) writing requirement may be met by considering S.H.’s averments in her pleadings, the majority references Lewis Carroll’s “looking glass.” 285 Kan. at 81. (“[Ijnterpreting [pleadings] separately or together to prove the parties ‘agreed’ to D.H.’s status as a father would require Lewis Carroll’s looking glass.”). While I agree with the majority that we cannot interpret the pleadings filed by S.H. (in which she referred to D.H. as the “father” of her children at least 56 times) as the “writing” contemplated by K.S.A. 38-1114(f), I would find that S.H.’s inconsistent pleadings and actions are evidence to be considered by the district court in determining *95whether the parties agreed that D.H. would play an active role in the twins’ lives.

S.H. filed a child in need of care (CINC) petition the day following the twins’ birth seeking to terminate D.H.’s parental rights. In the petition, she alleged several reasons for terminating D.H.’s parental rights, including D.H.’s failure to provide prenatal emotional and financial support, which implied she intended D.H. to play a role in the parenting process. Significantly, no mention was made in the CINC petition of K.S.A. 38-1114(f) or its potential application here. In fact, it was not until petitioner filed an amended petition more than 2 weeks after the initial petition that mention was made of K.S.A. 38-1114(f) and its presumption of nonpaternity.

Thus, I would remand for the district court to consider all evidence relevant to the existence of an agreement between the parties, including S.H.’s inconsistent allegations regarding D.H.’s responsibilities, her consistent reference to D.H. as the “father” of her children, and her failure to rely upon the statutory presumption in her initial petition.

As a final note, I agree that this court should not place fathers in an “Alice and Wonderland” scenario where the rules of the “chess game” are constantly changing and Kansas children are sometimes left without two supportive parents. And yet, it seems to me that rather than Lewis Carroll’s looking glass, we are looking at this case through a “funny mirror” at the local carnival. It is apparent that D.H. seeks to be a loving and supportive parent to the two children he has biologically fathered—two children who have no other putative father. And yet, by operation of a statute of which D.H. was unaware, his rights to parent these children were cut off before the children were conceived with the use of his sperm. This is a result we should not abide for D.H. or for his children absent the protections of due process.

Conclusion

I would hold K.S.A. 38-1114(f) unconstitutional as applied to D.H. as it takes away his fundamental rights to parent his children without due process of law. Further, I would remand this case with *96directions to the district court to resolve the factual dispute recognized by the majority here—i.e., whether D.H. and S.H. agreed that D.H. would be the natural father of K.C.H. and K.M.H. If the court concludes that such an agreement existed, then it must hold that K.S.A. 38-1114(f) did not apply to extinguish D.H.’s rights and must proceed to determine paternity and the extent to which D.H. will be permitted to share the rights and responsibilities of parenting his two children.

Hill, J., dissenting: I must respectfully join with Judge Caplinger in her dissent. I too agree that as applied in this case, K.S.A. 38-1114(f) is unconstitutional when applied to a known donor.

But I raise my hand and ask a different question. Who speaks for the children in these proceedings? As applied by the majority in this case, this generative statute of frauds slices away half of their heritage. A man who was once considered a “putative father” in the initial child in need of care proceeding is now branded a mere “semen donor.” The majority offers the children sympathy. But is this in their best interests? The trial court never got to the point of deciding the best interests of the children because it was convinced that such a consideration was barred by the operation of K.S.A. 38-1114(f) to a known donor.

None of the elaborate and meticulous safeguards our Kansas laws afford parents and children in proceedings before our courts when confronted with questions of parentage have been extended to these children. A quick glance over our procedures dealing with the Kansas Parentage Act (K.S.A. 38-1110 et seq.) or our Code for Care of Children (K.S.A. 38-1501 et seq.) reveals the great caution we taire in this state when courts must consider such relationships. While it is true that an attorney was appointed to represent the children in the original child in need of care case, the record from their point of view remains silent. Instead only the voices of mother and “semen donor” are heard in district court and this court as well.

I agree with the Ohio Court of Common Pleas when it said:

“A father’s voluntary assumption of fiscal responsibility for his child should be endorsed as a socially responsible action. A statute which absolutely extinguishes *97a father’s efforts to assert the rights and responsibility of being a father, in a case with such facts as those sub judice, runs contrary to due process safeguards. [Citation omitted.]” C.O. v. W.S., 64 Ohio Misc. 2d 9, 12, 639 N.E.2d 523 (1994) (citing Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 [1983]).

I think the same can be said about our statute.

TERNUS, Justice.

The primary issue raised on appeal of the district court’s decree in this dissolution action is whether the court properly determined the rights of Arthur (known as Trip) and Tamera Witten with respect to the parties’ frozen human embryos stored *772at a medical facility. While we agree with Tamera that the informed consent signed by the parties at the request of the medical facility does not control the current dispute between the donors over the use or disposition of the embryos, we reject Tarn-era’s request that she be allowed to use the embryos over Trip’s objection. Therefore, we affirm the trial court’s order that neither party may use or dispose of the embryos without the consent of the other party.

On Trip’s cross-appeal, we modify the court’s property division, eliminating the cash payment from Trip to Tamera and substituting an equivalent portion of Trip’s retirement account. We affirm the trial court’s award of trial attorney fees to Tamera, a matter also challenged on Trip’s cross-appeal.

I. Background Facts and Proceedings.

The appellee, Arthur (Trip) Witten, and the appellant, Tamera Witten, had been married for approximately seven and one-half years when Trip sought to have their marriage dissolved in April 2002. One of the contested issues at trial was control of the parties’ frozen embryos. During the parties’ marriage they had tried to become parents through the process of in vitro fertilization. Because Tamera was unable to conceive children naturally, they had eggs taken from Tamera artificially fertilized with Trip’s sperm. Tamera then underwent several unsuccessful embryo transfers in an attempt to become pregnant. At the time of trial seventeen fertilized eggs remained in storage at the University of Nebraska Medical Center (UNMC).1

Prior to commencing the process for in vitro fertilization, the parties signed informed consent documents prepared by the medical center. These documents included an “Embryo Storage Agreement,” which was signed by Tamera and Trip as well as by a representative of UNMC. It provided in part:

Release of Embryos. The Client Depositors [Trip and Tamera] understand and agree that containers of embryos stored pursuant to this agreement will be used for transfer, release or disposition only with the signed approval of both Client Depositors. UNMC will release the containers of embryos only to a licensed physician recipient of written authorization of the Client Depositors.

The agreement had one exception to the joint-approval requirement that governed the disposition of the embryos upon the death of one or both of the client depositors. Another provision of the contract provided for termination of UNMC’s responsibility to store the embryos upon several contingencies: (1) the client depositors’ written authorization to release the embryos or to destroy them; (2) the death of the client depositors; (3) the failure of the client depositors to pay the annual storage fee; or (4) the expiration of ten years from the date of the agreement.

At trial, Tamera asked that she be awarded “custody” of the embryos. She wanted to have the embryos implanted in her or a surrogate mother in an effort to bear a genetically linked child. She testified that upon a successful pregnancy she would afford Trip the opportunity to exercise parental rights or to have his rights terminated. She adamantly opposed any *773destruction of the embryos, and was also unwilling to donate the eggs to another couple.

Trip testified at the trial that while he did not want the embryos destroyed, he did not want Tamera to use them. He would not oppose donating the embryos for use by another couple. Trip asked the court to enter a permanent injunction prohibiting either party from transferring, releasing, or utilizing the embryos without the written consent of both parties.

The district court decided the dispute should be governed by the “embryo storage agreement” between the parties and UNMC, which required both parties’ consent to any use or disposition of the embryos. Enforcing this agreement, the trial court enjoined both parties “from transferring, releasing or in any other way using or disposing of the embryos ... without the written and signed approval and authorization” of the other party.

Tamera has appealed the trial court’s order, challenging only the court’s resolution of the parties’ dispute over the fertilized eggs. She claims the storage agreement is silent with respect to disposition or use of the embryos upon the parties’ dissolution because there is no provision specifically addressing that contingency. Therefore, she argues, the court should have applied the “best interests” test of Iowa Code chapter 598 (2001) and, pursuant to that analysis, awarded custody of the embryos to her. She makes the alternative argument that she is entitled to the fertilized eggs due to her fundamental right to bear children. Finally, Tamera claims it would violate the public policy of this state if Trip were allowed to back out of his agreement to have children. She claims such an agreement is evidenced by his participation in the in vitro fertilization procedure.

Trip has filed a cross-appeal. He claims the court erred in awarding Tamera a cash payment to equalize the property division rather than simply awarding her a share of his retirement account. He also contends the trial court abused its discretion in ordering Trip to pay $1000 toward Tamera’s attorney fees.

II. Scope of Review.

We review claimed error in dissolution-of-marriage decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses. Id. at 51. An award of attorney fees is reviewed for an abuse of discretion. See In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996).

III. Disposition of Embryos.

A. Scope of storage agreement. We first consider Tamera’s contention that the storage agreement does not address the situation at hand. As noted earlier, the agreement had a specific provision governing control of the embryos if one or both parties died, but did not explicitly deal with the possibility of divorce. Nonetheless, we think the present predicament falls within the general provision governing “release of embryos,” in which the parties agreed that the embryos would not be transferred, released, or discarded without “the signed approval” of both Tamera and Trip. This provision is certainly broad enough to encompass the decision-making protocol when the parties are unmarried as well as when they are married.

The only question, then, is whether such agreements are enforceable when one of the parties later changes his or her mind *774with respect to the proper disposition of the embryos. In reviewing the scarce case law from other jurisdictions on this point, we have found differing views of how the parties’ rights should be determined. There is, however, abundant literature that has scrutinized the approaches taken to date. Some writers have suggested refinements of the analytical framework employed by the courts thus far; some have proposed an entirely new model of analysis. From these various sources, we have identified three primary approaches to resolving disputes over the disposition of frozen embryos, which we have identified as (1) the contractual approach, (2) the contemporaneous mutual consent model, and (3) the balancing test.

Tamera’s argument that her right to bear children should override the parties’ prior agreement as well as Trip’s current opposition to her use of the embryos resembles the balancing test. As for Tamera’s alternative argument, we have found no authority supporting a “best interests” analysis in determining the disposition of frozen embryos. Nonetheless, we will first consider whether chapter 598 requires application of that analysis under the circumstances presented by this case. Then, we will discuss and consider the three approaches suggested by decisions from other jurisdictions and the literature on this subject.

B. “Best interests” test. Iowa Code section 598.41 sets forth various standards governing a court’s determination of the custody of the parties’ children in a dissolution case, including the requirement that any custody award reflect “the best interest of the child.” Tamera contends the embryos are children and their best interest demands placement with her. Trip argues the frozen embryos are not children and should not be considered as such for purposes of applying chapter 598 in dissolution actions.

In resolving this disagreement, we note initially that we are not called upon to determine the religious or philosophical status of the fertilized eggs. See generally Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 66-68 (1999) (noting three main views regarding the “moral status” of the human embryo) [hereinafter “Coleman”]. Rather, we are merely required to decide whether the embryos have the legal status of children under our dissolution-of-marriage statute.

Our first step is to consider the legislature’s definition of “child” as that term is used in chapter 598. The term “minor child” is defined in section 598.1(6) as “any person under legal age.” Iowa Code § 598.1(6) (emphasis added). Whether frozen embryos fall within this definition is an issue of first impression for this court.

While we have not considered the legal status of frozen embryos before, our court has had the opportunity to determine whether an unborn fetus is a “person” or a “child” in the context of other statutory provisions. See Dunn v. Rose Way, Inc., 333 N.W.2d 830, 833 (Iowa 1983); Weitl v. Moes, 311 N.W.2d 259, 273 (Iowa 1981), overruled on other grounds by Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983); McKillip v. Zimmerman, 191 N.W.2d 706, 709 (Iowa 1971); cf. Craig v. IMT Ins. Co., 407 N.W.2d 584, 587-88 (Iowa 1987) (permitting recovery under uninsured motorist coverage by husband and wife for death of their viable, unborn fetus on basis that fetus was a “covered person” under policy). In the Weitl and McKillip cases, this court considered whether an unborn fetus, viable in Weitl and nonviable in McKillip, was a “person” within the mean*775ing of Iowa’s survival statute. See Weitl, 311 N.W.2d at 270 (interpreting Iowa Code section 611.20); McKillip, 191 N.W.2d at 708 (same). Noting in McKillip that we “expressed] no opinion as to the existence of the fetus as a person in either the philosophical or actual sense,” we held the word “person” as used in the statute meant “only those born alive.” McKillip, 191 N.W.2d at 709; accord Weitl, 311 N.W.2d at 271 (holding “[t]he ordinary meaning of the word ‘person’ is a human being who has ‘attained a recognized individual identity’ by being born alive” (citation omitted)).

We reached a seemingly inconsistent result in Dunn, in which we considered the scope of the phrase “death of a minor child” as used in then rule 8 (now Iowa Rule of Civil Procedure 1.206). 333 N.W.2d at 831. In that case, we were called upon to decide whether a parent could recover under the rule for damages resulting from the death of the plaintiffs unborn child in an automobile accident. Id. No statutory definition of the term “minor child” guided our analysis. We also found little assistance in linguistic arguments, observing whether the term “minor child” included the unborn depended on which dictionary was consulted. Id. at 833. Consequently, “set[ting] completely aside all the philosophical arguments about the status of the unborn,” we based our decision “on the rule’s purpose.” Id. Noting the purpose of the rule was to permit parents to recover “when they are deprived of the anticipated services, companionship, and society of a minor child,” we concluded a parent’s “deprivation [did] not necessarily relate to the child’s birth.” Id. We held, therefore, that the parent’s right of recovery should “not depend on the legal status of the child” and recovery under rule 8 was permissible even when the deceased “child” was an unborn fetus. Id.

The common denominator in all three of our cases that consider the legal status of a fetus is our focus on the purpose of the law at issue and the legislative intent reflected by that purpose. See Dunn, 333 N.W.2d at 833 (“In the final analysis the question must turn on the rule’s purpose.”); Weitl, 311 N.W.2d at 273 (stating, “our role is to construe the statute as we believe the legislature intended it”); McKillip, 191 N.W.2d at 708 (“The pointed question is — Was the fetus a ‘person,’ as that term was used by the legislature in enacting section 611.20.... ”). That is the approach we follow in deciding the issue in this case. Therefore, rather than relying on our prior cases involving different statutes, we center our attention on the legislative intent with respect to the statute at issue here.

With this focus in mind, we conclude the principles contained in section 598.41 do not govern the dispute before us. First, we note the purposes of the “best interest” standard set forth in that statute are to “assure the child the opportunity for the maximum continuing physical and emotional contact with both parents” and to “encourage parents to share the rights and responsibilities of raising the child.” Iowa Code § 598.41(l)(a). The principles developed under this statute are simply not suited to the resolution of disputes over the control of frozen embryos. Such disputes do not involve maximizing physical and emotional contact between both parents and the child; they involve the more fundamental decision of whether the parties will be parents at all. Moreover, it would be premature to consider which parent can most effectively raise the child when the “child” is still frozen in a storage facility.

The principles of section 598.41 do not fit because what is really at issue here is *776not the custody of children as that concept is generally viewed and analyzed in dissolution cases. Rather, the issue here is who will have decision-making authority with respect to the fertilized eggs. See generally Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174, 179 (1998) (noting “the relevant inquiry” in disputes over control of frozen “pre-zygotes” is “who has dispositional authority over them”); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn.1992) (holding, in dissolution-of-marriage action, that fertilized eggs were neither “persons” nor “property” for purposes of determining the parties’ “decision-making authority concerning disposition of the embryos” and implicitly rejecting “best interests” analysis used by trial court). Thus, the factors that are relevant in determining the custody of children in dissolution cases are simply not useful in determining how decisions will be made with respect to the disposition and use of a divorced , couple’s fertilized eggs. For these reasons, we conclude the legislature did not intend to include fertilized eggs or frozen embryos within the scope of section 598.41.

C. Enforcement of storage agreement. We now consider the appropriateness of the trial court’s decision to allow Tamera and Trip’s agreement with the medical center to control the current dispute between them. As we noted above, there are three methods of analysis that have been suggested to resolve disputes over frozen embryos. We will discuss them separately.

1. Contractual approach. The currently prevailing view — expressed in three states. — is that contracts entered into at the time of in vitro fertilization are enforceable so long as they do not violate public policy. See Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180 (stating agreements between donors “regarding disposition of pre-zygotes should generally be presumed valid and binding”); Davis, 842 S.W.2d at 597 (holding agreement regarding disposition of embryos “should be considered binding”); In re Litowitz, 146 Wash.2d 514, 48 P.3d 261, 271 (2002) (enforcing parties’ contract providing for disposition of preembryos after five years of storage).2 The New York Court of Appeals expressed the following rationale for this contractual approach:

[It is] particularly important that courts seek to honor the parties’ expressions of choice, made before disputes erupt, with the parties’ over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agree*777ments as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors — not the State and not the courts — who by their prior directive make this deeply personal life choice.

Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180.

This approach has been criticized, however, because it “insufficiently protects the individual and societal interests at stake”:

First, decisions about the disposition of frozen embryos implicate rights central to individual identity. On matters of such fundamental personal importance, individuals are entitled to make decisions consistent with their contemporaneous wishes, values, and beliefs. Second, requiring couples to make binding decisions about the future use of their frozen embryos ignores the difficulty of predicting one’s future response to life-altering events such as parenthood. Third, conditioning the provision of infertility treatment on the execution of binding disposition agreements is coercive and calls into question the authenticity of the couple’s original choice. Finally, treating couples’ decisions about the future use of their frozen embryos as binding contracts undermines important values about families, reproduction, and the strength of genetic ties.

Coleman, 84 Minn. L.Rev. at 88-89. Another legal writer has echoed these concerns:

Binding a couple to a prior disposition agreement has its roots in contract law. The primary advantage of treating the disposition of preembryos as a contract dispute is that it binds individuals to previous obligations, even if their priorities or values change. This advantage, while maximizing the efficiency of commercial transactions, is ill-suited to govern the disposition of human tissue with the potential to develop into a child. The potential of the embryo requires that couples be allowed to make contemporaneous decisions about the fate of the embryo that reflect their current values.

Christina C. Lawrence, Note, Procreative Liberty and the Preembryo Problem: Developing a Medical and Legal Framework to Settle the Disposition of Frozen Embryos, 52 Case W. Res. L.Rev. 721, 729 (2002) [hereinafter “Lawrence Note”]; accord J.B. v. M.B., 170 N.J. 9, 783 A.2d 707, 718-19 (2001). In response to such concerns, one commentator has suggested an alternative model requiring contemporaneous mutual consent. We now examine that approach.

2. Contemporaneous mutual consent. The contractual approach and the contemporaneous mutual consent model share an underlying premise: “decisions about the disposition of frozen embryos belong to the couple that created the embryo, with each partner entitled to an equal say in how the embryos should be disposed.” Coleman, 84 Minn. L.Rev. at 81. Departing from this common starting point, the alternative framework asserts the important question is “at what time does the partners’ consent matter?” Id. at 91. Proponents of the mutual-consent approach suggest that, with respect to “decisions about intensely emotional matters, where people act more on the basis of feeling and instinct than rational deliberation,” it may “be impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.” Id. at 98; see also Sara D. Petersen, Comment, Dealing With Cryopreserved Embryos Upon Divorce: A Contractual Approach Aimed at Preserving Party Expectations, 50 UCLA L.Rev. 1065, 1090 & n. 156 (2003) (stating “surveys of couples that have stored frozen embryos suggest that they may be prone to changing them minds *778while their embryos remain frozen” and citing a study that found “ ‘[o]f the 41 couples that had recorded both a pre-treatment and post-treatment decision about embryo disposition, only 12(29%) kept the same disposition choice’ ” (citation omitted)). One’s erroneous prediction of how she or he will feel about the matter at some point in the future can have grave repercussions. “Like decisions about marriage or relinquishing a child for adoption, decisions about the use of one’s reproductive capacity have lifelong consequences for a person’s identity and sense of self’:

When chosen voluntarily, becoming a parent can be an important act of self-definition. Compelled parenthood, by contrast, imposes an unwanted identity on the individual, forcing her to redefine herself, her place in the world, and the legacy she will leave after she dies. For some people, the mandatory destruction of an embryo can have equally profound consequences, particularly for those who believe that embryos are persons. If forced destruction is experienced as the loss of a child, it can lead to life-altering feelings of mourning, guilt, and regret.

Coleman, 84 Minn. L.Rev. at 96-97. To accommodate these concerns, advocates of the mutual-consent model propose “no embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo.” Id. at 110. Under this alternate framework,

advance instructions would not be treated as binding contracts. If either partner has a change of mind about disposition decisions made in advance, that person’s current objection would take precedence over the prior consent. If one of the partners rescinds an advance disposition decision and the other does not, the mutual consent principle would not be satisfied and the previously agreed-upon disposition decision could not be carried out.

When the couple is unable to agree to any disposition decision, the most appropriate solution is to keep the embryos where they are — in frozen storage. Unlike the other possible disposition decisions — use by one partner, donation to another patient, donation to research, or destruction — keeping the embryos frozen is not final and irrevocable. By preserving the status quo, it makes it possible for the partners to reach an agreement at a later time.

Id. at 110-12; see also id. at 89 (suggesting “the embryo would remain in frozen storage until the parties reach a new agreement, the embryo is no longer viable, or storage facilities are no longer available”); accord Lawrence Note, 52 Case W. Res. L.Rev. at 742. Although this model precludes one party’s use of the embryos to have children over the objection of the other party, the outcome under the contractual approach and the balancing test would generally be the same. See A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 1057-58 (2000) (“As a matter of public policy, ... forced procreation is not an area amenable to judicial enforcement.”); J.B., 783 A.2d at 717 (evaluating relative interests of parties in disposition of embryos, concluding husband should not be able to use embryos over wife’s objection); Davis, 842 S.W.2d at 604 (“Ordinarily, the party wishing to avoid procreation should prevail.”); Susan B. Apel, Disposition of Frozen Embryos: Are Contracts the Solution?, Vermont Bar Journal, March 2001, at 31 (“Some argue that the party seeking to avoid procreation should prevail, and indeed, this appears to be the one harmonizing rationale of the four reported cases.”) [hereinafter “Apel”].

*7793. Balancing test. The New Jersey-Supreme Court appears to have adopted an analysis regarding the disposition of frozen human embryos that incorporates the idea of contemporaneous decision-making, but not that of mutual consent. In J.B., the New Jersey court rejected the Kass and Davis contractual approach, noting public policy concerns in “[ejnforcement of a contract that would allow the implantation of preembryos at some future date in a case where one party has reconsidered his or her earlier acquiescence.” 783 A.2d at 718. The court stated:

We believe that the better rule, and the one we adopt, is to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos.

Id. at 719 (emphasis added). The court based its decision on “[t]he public policy concerns that underlie limitations on contracts involving family relationships.” Id.; see also A.Z., 725 N.E.2d at 1057-58 (refusing, in light of the same public policy concerns, to enforce an agreement that allowed the wife, upon the parties’ separation, to use the couple’s preembryos for implantation).

The New Jersey court did not, however, adopt the requirement for mutual consent as a prerequisite for any use or disposition of the preembryos. Rather, that court stated that “if there is a disagreement between the parties as to disposition ..., the interests of both parties must be evaluated” by the court. J.B., 783 A.2d at 719. This balancing test was also the default analysis employed by the Tennessee Supreme Court in Davis where the parties had not executed a written agreement. See Davis, 842 S.W.2d at 604 (holding in the absence of a prior agreement concerning disposition, “the relative interests of the parties in using or not using the preembryos must be weighed” by the court).

The obvious problem with the balancing test model is its internal inconsistency. See generally Lawrence Note, 52 Case W. Res. L.Rev. at 738 (suggesting “[t]he premise of the balancing test ... is flawed”). Public policy concerns similar to those that prompt courts to refrain from enforcement of contracts addressing reproductive choice demand even more strongly that we not substitute the courts as decision makers in this highly emotional and personal area. Nonetheless, that is exactly what happens under the decisional framework based on the balancing test because the court must weigh the relative interests of the parties in deciding the disposition of embryos when the parties cannot agree. See J.B., 783 A.2d at 719.

D. Discussion. With these alternative approaches in mind, we turn to the present case. Trip asks that the contractual provision requiring mutual consent be enforced; Tamera claims this agreement is against the public policy of Iowa because it allows Trip to back out of his prior agreement to become a parent. We first consider whether there is any merit to Tamera’s public policy argument.

“While the term ‘public policy’ is not susceptible of exact definition,” Walker v. Am. Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983), we think the following discussion captures the meaning of this phrase:

The term “public policy” is of indefinite and uncertain definition, and there is no absolute rule or test by which it can be always determined whether a contract contravenes the public policy of the state; but each case must be determined according to the terms of the instrument under consideration and the circumstances peculiar thereto. In general, *780however, it may be said that any contract which conflicts with the morals of the times or contravenes any established interest of society is contrary to public policy. We must look to the Constitution, statutes, and judicial decisions of the state, to determine its public policy and that which is not prohibited by statute, condemned by judicial decision, nor contrary to the public morals contravenes no principle of public policy.

Liggett v. Shriver, 181 Iowa 260, 265, 164 N.W. 611, 612-13 (1917); accord Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980). The identification of a public policy is only part of the equation, however. “To strike down a contract on public policy grounds, we must conclude that ‘the preservation of the general public welfare ... outweigh[s] the weighty societal interest in the freedom of contract.’ ” Grinnell Mut Reinsurance Co. v. Jungling, 654 N.W.2d 530, 540 (Iowa 2002)(ci-tation omitted). In consideration of the delicate balancing required in this arena, we exercise the power to invalidate a .contract on public policy grounds cautiously and only in cases free from doubt. DeVetter v. Principal Mut Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994).

Tamera contends the contract at issue here violates public policy because it allows a person who has agreed to participate in an in vitro fertilization program to later change his mind about becoming a parent. While there is some question whether Trip’s participation constitutes an implied agreement to become a father, see Davis, 842 S.W.2d at 598 (rejecting argument that husband impliedly agreed to become a parent outside the confines of a marital relationship simply by undergoing in vitro fertilization procedures with his then wife), we accept Tamera’s assertion for purposes of the present discussion and proceed to consider whether there is any public policy against an agreement allowing a donor to abandon in vitro fertilization attempts when viable embryos remain. Tamera cites to no Iowa statute or prior case that articulates such a policy in the factual context we face here. While Iowa statutes clearly impose responsibilities on parents for the support and safekeeping of their children, such statutes, as we have already discussed in connection with chapter 598, do not contemplate the complex issues surrounding the disposition and use of frozen human embryos. The public policy evidenced by our law relates to the State’s concern for the physical, emotional, and psychological well being of children who have been born, not fertilized eggs that have not even resulted in a pregnancy-

Nor can we say that the “morals of the times” are such that a party participating in an in vitro fertilization process has the duty to use or facilitate the use of each fertilized egg for purposes of pregnancy. To the contrary, courts that have considered one party’s desire to use frozen embryos over the objection of the other progenitor have held that the objecting party’s fundamental right not to procreate outweighs the other party’s procreative rights, even in the face of a prior agreement allowing one party to use the embryos upon the parties’ divorce. See A.Z., 725 N.E.2d at 1057-58; J.B., 783 A.2d at 717-19. Thus, we find no public policy that requires the use of the frozen embryos over one party’s objection.

That brings us to the more complex issue: are prior agreements regarding the future disposition of embryos enforceable when one of the donors is no longer comfortable with his or her prior decision? We first note our agreement with other courts considering such matters that the partners who created the embryos *781have the primary, and equal, decision-making authority with respect to the use or disposition of their embryos. We think, however, that it would be against the public policy of this state to enforce a prior agreement between the parties in this highly personal area of reproductive choice when one of the parties has changed his or her mind concerning the disposition or use of the embryos.

Our statutes and case law evidence an understanding that decisions involving marital and family relationships are emotional and subject to change. For example, Iowa law imposes a seventy-two hour waiting period after the birth of a child before the biological parents can release parental rights. See Iowa Code § 600A.4(2)(gr). In addition, although this court has not abolished claims for breach of promise to marry,3 only recovery of monetary damages is permitted; the court will not force a party to actually consummate the marriage. See Herbert F. Goodrich, Iowa Decisions on Breach of Marriage Promise, 4 Iowa L. Bull. 166, 177 (1918). It has also long been recognized in this state that agreements for the purpose of bringing about a dissolution of marriage are contrary to public policy and therefore void. Barngrover v. Pettigrew, 128 Iowa 533, 535, 104 N.W. 904, 904 (1905) (holding where express object of contract was to bring about a dissolution of marriage and to put an end to the various duties and obligations resulting from the marital union, contract was against public policy and void).

This court has also expressed a general reluctance to become involved in intimate questions inherent in personal relationships. See Miller v. Miller, 78 Iowa 177, 179-80, 42 N.W. 641, 641 (1889). In Miller, we refused to enforce a contract between husband and wife that required, in part, each “to behave respectfully, and fairly treat the other.” Id. at 180, 42 N.W. at 641. We explained our refusal on the following grounds:

[J]udieial inquiry into matters of that character, between husband and wife, would be fraught with irreparable mischief, and forbidden by sound considerations of public policy.

It is the genius of our laws, as well as of our civilization, that matters pertaining so directly and exclusively to the home, and its value as such, and which are so generally susceptible of regulation and control by those influences which surround it, are not to become matters of public concern or inquiry.

Id. at 182, 42 N.W. at 642; accord Heacock v. Heacock, 108 Iowa 540, 542, 79 N.W. 353, 354 (1899) (“Husband and wife cannot contract with each other to secure the performance of their marital rights and duties.”). Certainly reproductive decisions are likewise not proper matters of judicial inquiry and enforcement.

We have considered and rejected the arguments of some commentators that embryo disposition agreements are analogous to antenuptial agreements and divorce stipulations, which courts generally enforce. See Apel, Vermont Bar Journal at 31. Whether embryos are viewed as having life or simply as having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements. Divorce stipulations are also distinguishable. While such agreements may address custody issues, they are contempo*782raneous with the implementation of the stipulation, an attribute noticeably lacking in disposition agreements.

In addition to decisional and statutory authority supporting a public policy against judicial enforcement of personal decisions concerning marriage, family, and reproduction, our statutes also anticipate the effect of a couple’s dissolution on their prior decisions. For example, Iowa Code section 633.271 provides that if a testator is divorced after making a will, “all provisions in the will in favor of the testator’s spouse” are automatically revoked. Similarly, Iowa Code section 633.3107 revokes all provisions in a revocable trust in favor of the settlor’s spouse upon divorce or dissolution of the marriage. Similar considerations make enforcement of contracts between partners involving such personal decisions as the use and disposition of their combined genetic material equally problematic. As noted by one commentator, embryos are originally created as “a mutual undertaking by [a] couple to have children together.” Coleman, 84 Minn. L.Rev. at 83. Agreements made in that context are not always consistent with the parties’ wishes once the mutual undertaking has ended.

We think judicial decisions and statutes in Iowa reflect respect for the right of individuals to make family and reproductive decisions based on their current views and values. They also reveal awareness that such decisions are highly emotional in nature and subject to a later change of heart. For this reason; we think judicial enforcement of an agreement between a couple regarding their future family and reproductive choices would be against the public policy of this state. -

Our decision should not be construed, however, to mean that disposition agreements between donors and fertility clinics have no validity at all. We recognize a disposition or storage agreement serves an important purpose in defining and governing the relationship between the couple and the medical facility, ensuring that all parties understand their respective rights and obligations. See A.Z., 725 N.E.2d at 1057 n. 22 (‘We also recognize that agreements among donors and IVF clinics are essential to clinic operations.”). In fact, it is this relationship, between the couple on the one side and the medical facility on the other, that dispositional contracts are intended to address. See generally Ellen A. Waldman, Disputing Over Embryos: Of Contracts and Consents, 32 Ariz. St. L.J. 897, 918 (2000) (noting “courts and most scholarly authorities would transform documents designed to record the transmission of medical information from clinic to couple, and the couple’s acceptance of medical treatment, into a binding agreement between the couple itself’). Within this context, the medical facility and the donors should be able to rely on the terms of the parties’ contract. See A.Z., 725 N.E.2d at 1057 n. 22 (noting court’s decision not to enforce agreement between partners is not an “impediment to the enforcement of such contracts by the clinics or by the donors against the clinics”); J.B., 783 A.2d at 719.

In view of these competing needs, we reject the.contractual approach and hold that agreements entered into at the time in vitro fertilization is commenced are enforceable and binding on the parties, “subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored embryo.” J.B., 783 A.2d at 719. This decisional model encourages prior agreements that can guide the actions of all parties, unless a later objection to any dispositional provision is asserted. It also recognizes that, absent a change of heart by one of the partners, an agreement gov*783erning disposition of embryos does not violate public policy. Only when one person makes known the agreement no longer reflects his or her current values or wishes is public policy implicated. Upon this occurrence, allowing either party to withdraw his or her agreement to a disposition that person no longer accepts acknowledges the public policy concerns inherent in enforcing prior decisions of a fundamentally personal nature. In fairness to the medical facility that is a party to the agreement, however, any change of intention must be communicated in writing to all parties in order to reopen the disposition issues covered by the agreement. Id.

That brings us, then, to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition. We have already explained the grave public policy concerns we have with the balancing test, which simply substitutes the court as decision maker. A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction. See Coleman, 84 Minn. L.Rev. at 112 (“The right to insist on the continued storage of the embryos should be dependent on a willingness to pay the associated costs.”).

Turning to the present case, we find a situation in which one party no longer concurs in the parties’ prior agreement with respect to the disposition of their frozen embryos, but the parties have been unable to reach a new agreement that is mutually satisfactory. Based on this fact, under the principles we have set forth today, we hold there can be no use or disposition of the Wittens’ embryos unless Trip and Tamera reach an agreement.4 Until then, the party or parties who oppose destruction shall be responsible for any storage fees. Therefore, we affirm the trial court’s ruling enjoining both parties from transferring, releasing, or utilizing the embryos without the other’s written consent.

IV. Division of Trip’s Retirement Account.

In its decree, the trial court divided the parties’ joint property and debts, awarding Trip’s retirement account entirely to him. In order to equalize the division of assets and liabilities, the court ordered Trip to make a cash payment to Tamera of $5276. In his cross-appeal, Trip asserts the court should have awarded Tamera a share of Trip’s retirement account to equalize the property division, rather than making him responsible for a cash payment to Tamera. He claims that the retirement account carries an income tax burden that now rests entirely on him, whereas none of the assets awarded to Tamera carries any tax consequence upon liquidation. See generally Iowa Code § 598.21(1)(j) (instructing the court to consider “[t]he tax consequences to each party” in dividing the property of the parties). Tamera responds that it would be inequitable to make her wait to retirement to obtain her share of this asset.

We initially observe that the parties expressly removed the matter of tax conse*784quences from the trial court’s consideration in their pretrial stipulation, which states: “The parties agree that no tax consequence issue needs to be addressed by the Court.” This issue was apparently removed from the court’s consideration because both parties contemplated that the retirement account would be divided between them after adjusting for the value of the account earned by Trip prior to the parties’ marriage. During trial both Trip and Tamera testified with respect to then-personal wishes as to the disposition of each asset, stating their preference for who should be awarded each particular item. As to the retirement account, they both testified they wanted it to be divided equitably between them. Despite Tamera’s protestations on appeal that she should not have to wait until retirement to obtain her share of this asset, she appeared quite willing to do so at the time of trial. We turn, then, to a consideration of the fairness of the court’s award of cash to Tamera in lieu of a share of Trip’s retirement account.

Although Tamera correctly points out the court did not order Trip to liquidate his retirement account, there are no other assets that Trip has at his disposal that would be sufficient, alone or in combination, to make the cash payment to Tamera required by the court’s decree. Consequently, as a practical matter the court’s property division will require Trip to liquidate some portion of his retirement account with the attendant penalties of early withdrawal. Cf. In re Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa Ct.App.1983) (affirming valuation of retirement account without any depreciation for potential tax liability, noting court did not order liquidation of account and it was “evident that respondent had other assets available to meet the court’s orders without liquidating it”). Therefore, we think a fairer division of the parties’ assets would eliminate the cash payment and substitute a $5276 share of Trip’s retirement account to Tamera. Consequently, we remand this case for the preparation and execution of the required documents to accomplish this transfer.

V. Trial Attorney Fees.

The trial court ordered Trip to pay $1000 towards Tamera’s trial attorney fees because Trip’s income “is substantially larger than Tamera’s.” Trip contends this amount was excessive for two reasons. First, he points to his payment of temporary alimony of $250 per month and his prior payment of $600 towards Tamera’s attorney fees. He also claims a trial was necessary primarily due to Tamera’s position on alimony and disposition of the frozen embryos, issues on which Trip prevailed at trial. Trip does not dispute on appeal that he is more financially able to pay the attorney fees.

Our consideration of this issue is guided by the following principles:

Trial courts have considerable discretion in awarding attorney fees. Whether attorney fees should be awarded depends on the respective abilities of the parties to pay. In addition, the fees must be fair and reasonable.

In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). Trip points to no case where this court has considered whether the party requesting trial attorney fees was successful at trial. Cf. id. (stating court considers “whether the party making the request [for attorney fees] was obligated to defend the trial court’s decision on appeal” in awarding appellate attorney fees (emphasis added)).

When we evaluate Trip’s challenge to the trial court’s award of attorney fees in light of the relevant factors, we find no abuse of discretion. Trip has more *785ability to pay the fees than does Tamera and there is no claim the fees are not fair and reasonable. Therefore, we affirm the trial court’s attorney fee award.

VI. Summary and Disposition.

We affirm the trial court’s decree in all respects except the equalization payment Trip was ordered to make to Tamera. We modify the decree to eliminate that award and substitute in its place a division of Trip’s retirement account allocating $5276 to Tamera and the balance to Trip. We remand this case for entry of an order consistent with this decision.

AFFIRMED ON APPEAL AND MODIFIED ON CROSS-APPEAL. CASE REMANDED.

OPINION OF THE COURT

Chief Judge Kaye.

Although in vitro fertilization (IVF) procedures are now *557more than two decades old and in wide use, this is the first such dispute to reach our Court. Specifically in issue is the disposition of five frozen, stored pre-embryos, or “pre-zygotes,”1 created five years ago, during the parties’ marriage, to assist them in having a child. Now divorced, appellant (Maureen Kass) wants the pre-zygotes implanted, claiming this is her only chance for genetic motherhood; respondent (Steven Kass) objects to the burdens of unwanted fatherhood, claiming that the parties agreed at the time they embarked on the effort that in the present circumstances the pre-zygotes would be donated to the IVF program for approved research purposes. Like the two-Justice plurality at the Appellate Division, we conclude that the parties’ agreement providing for donation to the IVF program controls. The Appellate Division order should therefore be affirmed.

Facts

Appellant and respondent were married on July 4, 1988, and almost immediately began trying to conceive a child. While appellant believed that, owing to prenatal exposure to diethylstilbestrol (DES) she might have difficulty carrying a pregnancy to term, her condition in fact was more serious — she failed to become pregnant. In August 1989, the couple turned to John T. Mather Memorial Hospital in Port Jefferson, Long Island and, after unsuccessful efforts to conceive through artificial insemination, enrolled in the hospital’s IVF program.

Typically, the IVF procedure begins with hormonal stimulation of a woman’s ovaries to produce multiple eggs. The eggs are then removed by laparoscopy or ultrasound-directed needle aspiration and placed in a glass dish, where sperm are introduced. Once a sperm cell fertilizes the egg, this fusion — or pre-zygote — divides until it reaches the four- to eight-cell stage, after which several pre-zygotes are transferred to the woman’s uterus by a cervical catheter. If the procedure succeeds, an embryo will attach itself to the uterine wall, differentiate and develop into a fetus. As an alternative to immediate implantation, pre-zygotes may be cryopreserved indefinitely in liquid nitrogen for later use. Cryopreservation serves to reduce both medical and physical costs because eggs do not have to be retrieved with each attempted implantation, and delay may actually improve the chances of pregnancy. At the same time, *558the preservation of “extra” pre-zygotes — those not immediately implanted — allows for later disagreements, as occurred here.

Beginning in March 1990, appellant underwent the egg retrieval process five times and fertilized eggs were transferred to her nine times. She became pregnant twice — once in October 1991, ending in a miscarriage and again a few months later, when an ectopic pregnancy had to be surgically terminated.

Before the final procedure, for the first time involving cryopreservation, the couple on May 12, 1993 signed four consent forms provided by the hospital. Each form begins on a new page, with its own caption and “Patient Name.” The first two forms, “general informed consent form no. 1: in vitro FERTILIZATION AND EMBRYO TRANSFER” and “ADDENDUM NO. 1-1,” consist, of 12 single-spaced typewritten pages explaining the procedure, its risks and benefits, at several points indicating that, before egg retrieval could begin, it was necessary for the parties to make informed decisions regarding disposition of the fertilized eggs, addendum no. 1-1 concludes as follows:

“We understand that it is general IVF Program Policy, as medically determined by our IVF physician, to retrieve as many eggs as possible and to inseminate and transfer 4 of those mature eggs in this IVF cycle, unless our IVF physician determines otherwise. It is necessary that we decide * * * [now] how excess eggs are to be handled by the IVF Program and how many embryos to transfer. We are to indicate our choices by signing our initials where noted below.

“1. We consent to the retrieval of as many eggs as medically determined by our IVF physician. If more eggs are retrieved than can be transferred during this IVF cycle, we direct the IVF Program to take the following action (choose one):

“(a) The excess eggs are to be inseminated and cryopreserved for possible use by us during a later IVF cycle. We understand that our choice of this option requires us to complete an additional Consent Form for Cryopreservation” (emphasis in original).

The “Additional Consent Form for Cryopreservation,” a seven-page, single-spaced typewritten document, is also in two parts. The first, “informed consent form no. 2: cryopreservation of human pre-zygotes,” provides:

*559“III. Disposition of Pre-Zygotes.

“We understand that our frozen pre-zygotes will be stored for a maximum of 5 years. We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law. In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction. Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand that we may determine the disposition of our frozen pre-zygotes remaining in storage. * * *

“The possibility of our death or any other unforeseen circumstances that may result in neither of us being able to determine the disposition of any stored frozen pre-zygotes requires that we now indicate our wishes, these important decisions MUST BE DISCUSSED WITH OUR IVF PHYSICIAN AND OUR WISHES MUST BE STATED (BEFORE EGG RETRIEVAL) ON THE ATTACHED ADDENDUM NO. 2-1, STATEMENT OF DISPOSITION. THIS STATEMENT OF DISPOSITION MAY BE CHANGED ONLY BY OUR SIGNING ANOTHER STATEMENT OF DISPOSITION WHICH IS FILED WITH THE IVF PROGRAM” (emphasis in original).

The second part, titled “informed consent form no. 2 — addendum NO. 2-1: CRYOPRESERVATIONSTATEMENT OF DISPOSITION,” states:

“We understand that it is IVF Program Policy to obtain our informed consent to the number of prezygotes which are to be cryopreserved and to the disposition of excess cryopreserved pre-zygotes. We are to indicate our choices by signing our initials where noted below.

“1. We consent to cryopreservation of all prezygotes which are not transferred during this IVF cycle for possible use * * * by us in a future IVF cycle. * * *

“2. In the event that we no longer wish to initiate a *560pregnancy or are unable to make a decision regarding the disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF program to (choose one): * * *

“(b) Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program” (emphasis in original).

On May 20, 1993, doctors retrieved 16 eggs from appellant, resulting in nine pre-zygotes. Two days later, four were transferred to appellant’s sister, who had volunteered to be a surrogate mother, and the remaining five were cryopreserved. The couple learned shortly thereafter that the results were negative and that appellant’s sister was no longer willing to participate in the program. They then decided to dissolve their marriage. The total cost of their IVF efforts exceeded $75,000.

With divorce imminent, the parties themselves on June 7, 1993 — barely three weeks after signing the consents — drew up and signed an “uncontested divorce” agreement, typed by appellant, including the following:

“The disposition of the frozen 5 pre-zygotes at Mather Hospital is that they should be disposed of [in] the manner outlined in our consent form and that neither Maureen Kass[,] Steve Kass or anyone else will lay claim to custody of these pre-zygotes.”

On June 28, 1993, appellant by letter informed the hospital and her IVF physician of her marital problems and expressed her opposition to destruction or release of the pre-zygotes.

One month later, appellant commenced the present matrimonial action, requesting sole custody of the pre-zygotes so that she could undergo another implantation procedure. Respondent opposed removal of the pre-zygotes and any further attempts by appellant to achieve pregnancy, and counterclaimed for specific performance of the parties’ agreement to permit the IVF program to retain the pre-zygotes for research, as specified in addendum no. 2-1. By stipulation dated December 17, 1993, the couple settled all issues in the matrimonial action except each party’s claim with respect to the prezygotes, which was submitted to the court for determination. While this aspect of the case remained open, a divorce judgment was entered on May 16, 1994.

*561In connection with the continuing litigation over the prezygotes, by letter dated January 9, 1995 the parties agreed that the matter should be decided on the existing record.

Supreme Court granted appellant custody of the pre-zygotes and directed her to exercise her right to implant them within a medically reasonable time. The court reasoned that a female participant in the IVF procedure has exclusive decisional authority over the fertilized eggs created through that process, just as a pregnant woman has exclusive decisional authority over a nonviable fetus, and that appellant had not waived her right either in the May 12, 1993 consents or in the June 7, 1993 “uncontested divorce” agreement.

While a divided Appellate Division reversed that decision (235 AD2d 150), all five Justices unanimously agreed on two fundamental propositions. First, they concluded that a woman’s right to privacy and bodily integrity are not implicated before implantation occurs. Second, the court unanimously recognized that when parties to an IVF procedure have themselves determined the disposition of any unused fertilized eggs, their agreement should control.

The panel split, however, on the question whether the agreement at issue was sufficiently clear to control disposition of the pre-zygotes. According to the two-Justice plurality, the agreement unambiguously indicated the parties’ desire to donate the pre-zygotes for research purposes if the couple could not reach a joint decision regarding disposition. The concurring Justice agreed to reverse but found the consent fatally ambiguous. In his view, but for the most exceptional circumstances, the objecting party should have a veto over a former spouse’s proposed implantation, owing to the emotional and financial burdens of compelled parenthood. A fact-finding hearing would be authorized only when the party desiring parenthood could make a threshold showing of no other means of achieving genetic or adoptive parenthood, which was not shown on this stipulated record.

While agreeing with the concurrence that the informed consent document was ambiguous, the two-Justice dissent rejected a presumption in favor of either party and instead concluded that the fate of the pre-zygotes required a balancing of the parties’ respective interests and burdens, as well as their personal backgrounds, psychological makeups, financial and physical circumstances. Factors would include appellant’s independent ability to support the child and the sincerity of *562her emotional investment in this particular reproductive opportunity, as well as the burdens attendant upon a respondent’s unwanted fatherhood and his motivations for objecting to parenthood. Finding that the record was insufficient to permit a fair balancing, and that the parties’ January 9, 1995 stipulation that there would be no further submissions violated public policy because it precluded full review, the dissent would remit the case to the trial court for a full hearing.

We now affirm, agreeing with the plurality that the parties clearly expressed their intent that in the circumstances presented the pre-zygotes would be donated to the IVF program for research purposes.

Analysis

A. The Legal Landscape Generally. We begin analysis with a brief description of the broader legal context of this dispute. In the past two decades, thousands of children have been born through IVF, the best known of several methods of assisted reproduction. Additionally, tens of thousands of frozen embryos annually are routinely stored in liquid nitrogen canisters, some having been in that state for more than 10 years with no instructions for their use or disposal (see, New York State Task Force on Life and the Law, Assisted Reproductive Technologies: Analysis and Recommendations for Public Policy, at 289 [Apr. 1998] [“Assisted Reproductive Technologies”]; Caplan, Due Consideration: Controversy in the Age of Medical Miracles, at 63 [1998]). As science races ahead, it leaves in its trail mind-numbing ethical and legal questions (see generally, Robertson, Children of Choice: Freedom and the New Reproductive Technologies [1994] [“Children of Choice”]).

The law, whether statutory or decisional, has been evolving more slowly and cautiously. A handful of States — New York not among them — have adopted statutes touching on the disposition of stored embryos (see, e.g., Fla Stat Annot § 742.17 [couples must execute written agreement providing for disposition in event of death, divorce or other unforeseen circumstances]; NH Rev Stat Annot §§ 168-B:13 — 168-B:15, 168-B:18 [couples must undergo medical exams and counseling; 14-day limit for maintenance of ex utero pre-zygotes]; La Rev Stat An-*563not §§ 9:121-9:133 [pre-zygote considered “juridical person” that must be implanted]).2

In the case law, only Davis v Davis (842 SW2d 588, 604 [Tenn 1992], cert denied sub nom. Stowe v Davis, 507 US 911) attempts to lay out an analytical framework for disputes between a divorcing couple regarding the disposition of frozen embryos (see also, York v Jones, 717 F Supp 421 [ED Va]; Del Zio v Columbia Presbyt. Hosp., 1978 US Dist LEXIS 14450 [US Dist Ct, SD NY, Apr. 12, 1978, 74 Civ 3588]; AZ v BZ, Mass Probate Ct, Mar. 25, 1996). Having declared that embryos are entitled to “special respect because of their potential for human life” (842 SW2d at 597, supra), Davis recognized the procreative autonomy of both gamete providers, which includes an interest in avoiding genetic parenthood as well as an interest in becoming a genetic parent. In the absence of any prior written agreement between the parties — which should be presumed valid, and implemented — according to Davis, courts must in every case balance these competing interests, each deserving of judicial respect. In Davis itself, that balance weighed in favor of the husband’s interest in avoiding genetic parenthood, which was deemed more significant than the wife’s desire to donate the embryos to a childless couple.

Although statutory and decisional law are sparse, abundant commentary offers a window on the issues ahead, particularly suggesting various approaches to the issue of disposition of pre-zygotes. Some commentators would vest control in one of the two gamete providers (see, e.g., Poole, Allocation of Decision-Making Rights to Frozen Embryos, 4 Am J Fam L 67 [1990] [pre-zygotes to party wishing to avoid procreation]; Andrews, The Legal Status of the Embryo, 32 Loy L Rev 357 [1986] [woman retains authority when she desires to implant]). Others would imply a contract to procreate from participation in an IVF program (see, e.g., Note, Davis v. Davis: What About Future Disputes?, 26 Conn L Rev 305 [1993]; Comment, Frozen Embryos: Towards An Equitable Solution, 46 U Miami L Rev 803 [1992]).

*564Yet a third approach is to regard the progenitors as holding a “bundle of rights” in relation to the pre-zygote that can be exercised through joint disposition agreements (see, Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 Ohio St LJ 407 [1990] [“Prior Agreements”]; Robertson, In the Beginning: The Legal Status of Early Embryos, 76 Va L Rev 437 [1990] [“Early Embryos”]). The most recent view — a “default rule” — articulated in the report of the New York State Task Force on Life and the Law, is that, while gamete bank regulations should require specific instructions regarding disposition, no embryo should be implanted, destroyed or used in research over the objection of an individual with decision-making authority (see, Assisted Reproductive Technologies, op. cit., at 317-320).

Proliferating cases regarding the disposition of embryos, as well as other assisted reproduction issues, will unquestionably spark further progression of the law.3 What is plain, however, is the need for clear, consistent principles to guide parties in protecting their interests and resolving their disputes, and the need for particular care in fashioning such principles as issues are better defined and appreciated. Against that backdrop we turn to the present appeal.

B. The Appeal Before Us. Like the Appellate Division, we conclude that disposition of these pre-zygotes does not implicate a woman’s right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as “persons” for constitutional purposes (see, Roe v Wade, 410 US 113, 162; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194, 203, appeal dismissed 410 US 949). The relevant inquiry thus becomes who has dispositional authority over them. Because that question is answered in this case by the parties’ agreement, for purposes of resolving the present appeal we *565have no cause to decide whether the pre-zygotes are entitled to “special respect” (cf., Davis v Davis, 842 SW2d 588, 596-597, supra; see also, Ethics Comm of Am Fertility Socy, Ethical Considerations of the New Reproductive Technologies, 46 Fertility & Sterility 1S, 32S [Supp 1 1986]).4

Agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them (see, Davis v Davis, 842 SW2d at 597, supra; see also, Early Embryos, op. cit, 76 Va L Rev at 463-469). Indeed, parties should be encouraged in advance, before embarking on IVF and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing. Explicit agreements avoid costly litigation in business transactions. They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs (see, Prior Agreements, op. cit., 51 Ohio St L Rev at 414-418; see also, Children of Choice, op. cit, at 107, 113).

While the value of arriving at explicit agreements is apparent, we also recognize the extraordinary difficulty such an exercise presents. All agreements looking to the future to some extent deal with the unknown. Here, however, the uncertainties inherent in the IVF process itself are vastly complicated by cryopreservation, which extends the viability of pre-zygotes indefinitely and allows time for minds, and circumstances, to change. Divorce; death, disappearance or incapacity of one or both partners; aging; the birth of other children are but a *566sampling of obvious changes in individual circumstances that might take place over time.

These factors make it particularly important that courts seek to honor the parties’ expressions of choice, made before disputes erupt, with the parties’ over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors — not the State and not the courts— who by their prior directive make this deeply personal life choice.

Here, the parties prior to cryopreservation of the pre-zygotes signed consents indicating their dispositional intent. While these documents were technically provided by the IVF program, neither party disputes that they are an expression of their own intent regarding disposition of their pre-zygotes. Nor do the parties contest the legality of those agreements, or that they were freely and knowingly made. The central issue is whether the consents clearly express the parties’ intent regarding disposition of the pre-zygotes in the present circumstances. Appellant claims the consents are fraught with ambiguity in this respect; respondent urges they plainly mandate transfer to the IVF program.

The subject of this dispute may be novel but the common-law principles governing contract interpretation are not. Whether an agreement is ambiguous is a question of law for the courts (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191). Ambiguity is determined by looking within the four corners of the document, not to outside sources (see, W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162-163). And in deciding whether an agreement is ambiguous courts

*567Where the document makes clear the parties’ over-all intention, courts examining isolated provisions “ ‘should then choose that construction which will carry out the plain purpose and object of the [agreement]’ ” (Williams Press v State of New York, 37 NY2d 434, 440, quoting Empire Props. Corp. v Manufacturers Trust Co., 288 NY 242, 249).

*566“should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought” (Atwater & Co. v Panama R. R. Co., 246 NY 519, 524).

*567Applying those principles, we agree that the informed consents signed by the parties unequivocally manifest their mutual intention that in the present circumstances the prezygotes be donated for research to the IVF program.

The conclusion that emerges most strikingly from reviewing these consents as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears again and again throughout the lengthy documents. Words of shared understanding — “we,” “us” and “our” — permeate the pages. The overriding choice of these parties could not be plainer: “We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law” (emphasis added).

That pervasive sentiment — both parties assuming “principal responsibility to decide the disposition of [their] frozen prezygotes” — is carried forward in addendum no. 2-1:

“In the event that we * * * are unable to make a decision regarding disposition of our stored, frozen pre-zygotes, we now indicate our desire for the disposition of our pre-zygotes and direct the IVF Program to * * *

“Our frozen pre-zygotes may be examined by the IVF Program for biological studies and be disposed of by the IVF Program for approved research investigation as determined by the IVF Program.”

Thus, only by joint decision of the parties would the pre-zygotes be used for implantation. And otherwise, by mutual consent they would be donated to the IVF program for research purposes.

*568The Appellate Division plurality identified, and correctly resolved, two claimed ambiguities in the consents. The first is the following sentence in informed consent no. 2: “In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction.” Appellant would instead read that sentence: “In the event of divorce, we understand that legal ownership of any stored pre-zygotes must be determined by a court of competent jurisdiction.” That is not, however, what the sentence says. Appellant’s construction ignores the direction that ownership of the pre-zygotes “must be determined in a property settlement” — words that also must be given meaning, words that connote the parties’ anticipated agreement as to disposition. Indeed, appellant and respondent did actually reach a settlement stipulation, reserving only the issue of the pre-zygotes (the subject of their earlier consents).

Additionally, while extrinsic evidence cannot create an ambiguity in an agreement, the plurality properly looked to the “uncontested divorce” instrument, signed only weeks after the consents, to resolve any ambiguity in the cited sentence. Although that instrument never became operative, it reaffirmed the earlier understanding that neither party would alone lay claim to possession of the pre-zygotes.5

Apart from construing the sentence in isolation, the plurality also read it in the context of the consents as a whole. Viewed in that light, we too conclude that the isolated sentence was not dispositional at all but rather was “clearly designed to insulate the hospital and the IVF program from liability in the event of a legal dispute over the pre-zygotes arising in the context of a divorce” (235 AD2d at 160). To construe the sentence as appellant suggests — surrendering all control over the pre-zygotes to the courts — is directly at odds with the intent of the parties plainly manifested throughout the consents that disposition be only by joint agreement.

For much the same reason, we agree with the plurality’s conclusion that addendum no. 2-1 — the “statement of disposition” — was not strictly limited to instances of “death or other *569unforseen circumstances.” Those are contingencies that would be resolved by the addendum, but they are not the only ones. We reach this conclusion, again, from reviewing the provisions in isolation and then in the context of the consents as a whole. While we agree that the words “death or any other unforeseen circumstances” in informed consent no. 2 did not create a condition precedent (235 AD2d at 159), we also note that the present circumstances — including the parties’ inability to reach the anticipated settlement — might well be seen as an “unforeseen” circumstance. Moreover, viewing the addendum in isolation, there is no hint of the claimed condition in the document itself. The document is a free-standing form, separately captioned and separately signed by the parties. Finally, viewing the issue in the context of the consents as a whole, as the plurality noted, “the overly narrow interpretation advocated by [appellant] is refuted not only by the broad language of the dispositional provision itself, but by other provisions of the informed consent document as well” (235 AD2d at 159).

As they embarked on the IVF program, appellant and respondent — “husband” and “wife,” signing as such — clearly contemplated the fulfillment of a life dream of having a child during their marriage. The consents they signed provided for other contingencies, most especially that in the present circumstances the pre-zygotes would be donated to the IVF program for approved research purposes. These parties having clearly manifested their intention, the law will honor it.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.

Order affirmed, with costs.