C.M. v. M.C.

Filed 1/26/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
C.M., B270525
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BF054159)
v.
M.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Amy Pellman, Judge. Affirmed.
Buchalter Nemer, Michael W. Caspino, Robert M. Dato;
The Cassidy Law Firm, and Harold J. Cassidy for Defendant and
Appellant.
John L. Dodd & Associates, John L. Dodd, Benjamin
Ekenes; Jarrette & Walmsley and Robert R. Walmsley for
Plaintiff and Respondent.
________________________________________________
Defendant and appellant M.C. (M.C.) appeals from a
judgment declaring plaintiff and respondent C.M. (Father) to be
the sole legal parent of triplet children (the Children) and finding
that M.C. has no parental rights. M.C. was the gestational
carrier for the Children, who were conceived in vitro using
Father’s sperm and ova from an anonymous donor. Father and
M.C. entered into the surrogacy arrangement pursuant to a
written “In Vitro Fertilization Surrogacy Agreement” in 2015 (the
Agreement). Each party was represented by separate counsel in
negotiating the Agreement.
Despite the Agreement, during the pregnancy M.C.
developed reservations about the arrangement. She sought
rights as the Children’s mother and custody of at least one of the
Children. When Father filed a petition pursuant to Family Code
section 7962 to be declared the sole parent of the Children, M.C.
opposed the petition.1 Following a hearing on the petition on
February 9, 2016, the trial court entered judgment in favor of
Father.
On appeal, M.C. raises various substantive and procedural
challenges to the judgment. The challenges amount to an all-out
attack on the constitutionality and enforceability of surrogacy
agreements in California.
We conclude that M.C.’s arguments are foreclosed by
specific legislative provisions and by a prior decision by our
Supreme Court. In view of the well-established law in this area,
our role on appeal is limited to reviewing whether the legislative
requirements for establishing an enforceable surrogacy
1Subsequent undesignated statutory references are to the
Family Code.
2
agreement were met in this case. We find no error in the trial
court’s ruling on that issue, and we therefore affirm.
BACKGROUND
1. The Agreement
M.C. executed the 75-page Agreement on May 31, 2015;
Father executed the agreement on June 3, 2015. The Agreement
identified Father as the “Intended Parent” and M.C. as
“Surrogate.”
M.C. was 47 years old at the time she entered into the
Agreement. She represented in the Agreement that she has four
children of “childcare age,” and that she “has previously been a
surrogate mother and is familiar with the undertaking.” She
stated that she did “not desire to have a parental relationship”
with any children born pursuant to the surrogacy arrangement
and that she “believes any Child conceived and born pursuant to
this Agreement is/are morally, ethically, contractually and legally
that of Intended Parent.” The Agreement stated that the
underlying intent of all parties to the Agreement was that “any
Child conceived and/or born pursuant to the conduct
contemplated under this Agreement shall be treated, in all
respects, as the sole and exclusive natural, biological and/or legal
Child of Intended Parent. It is also the intent of all Parties to
this Agreement that Surrogate and her Partner shall not be
treated as a natural, biological and/or legal parent of any Child
conceived and/or born pursuant to the conduct contemplated
under this Agreement.”
The Agreement stated that the parties were “informed and
advised of the California Supreme Court decision in Johnson v.
Calvert, and the Court of Appeal decision in In re Marriage of
Buzzanca, and agree that these decisions apply to and govern
3
this Agreement and the conduct contemplated thereby.[2]
Specifically, each Party agrees that the intent to bear and raise
the Child conceived and born pursuant to this Agreement shall be
determinative of Parentage, to wit: that Intended Parent shall be
treated as the legal, natural, and biological parent of any
Child(ren) conceived and born pursuant to this Agreement.” The
parties further acknowledged that sections 7960 and 7962 “apply
to this Agreement,” and represented that “in entering into this
Agreement they have taken steps to execute this Agreement in
compliance with sections 7960 (as amended) and 7962.”
The Agreement contained a disclosure that the “ova/eggs
were provided by an anonymous donor,” and that the embryos
“will be created through the use of sperm provided by Intended
Parent with ova/eggs anonymously donated to Intended Parent
for his exclusive use.” The parties agreed that “the donated
ova/eggs shall be deemed as being the property of Intended
Parent and as having come from Intended Parent.”
In addition to describing the compensation that M.C. was
to receive for her “discomfort, pain, suffering and for pre-birth
child support,” the Agreement addressed medical costs. It
provided that medical expenses would be paid through a
combination of “Surrogate’s insurance and Intended Parent’s
direct payment for such uncovered costs.”
M.C. promised in the Agreement that she would “freely and
readily assist Intended Parent in legalizing his parent-child
relationship with the Child.” The parties stated their
understanding that, “based upon the current law in the State of
2 Johnson v. Calvert (1993) 5 Cal. 4th 84 (Calvert); In re
Marriage of Buzzanca (1998) 61 Cal. App. 4th 1410 (Buzzanca)
(discussed post).
4
California, an action to terminate the Parental rights of
Surrogate is not necessary and Intended Parent is entitled to a
judicial determination of his Parentage, notwithstanding any
objection to the contrary by Surrogate.”
M.C. was represented by separate counsel, Lesa Slaughter,
in negotiating the Agreement. Father agreed to pay the costs of
M.C.’s counsel up to an amount of $1,000 for legal advice with
respect to the Agreement and up to $500 for review and advice
with respect to the legal documents “necessary to establish the
Intended Parent’s parentage.” The Agreement contained a
disclosure and waiver of the potential conflict of interest from
Father’s payment of M.C.’s legal counsel fees.
M.C. initialed each page of the Agreement, and her
signature was notarized. Attorney Slaughter transmitted the
executed and notarized Agreement to Father’s counsel with a
transmittal letter dated May 31, 2015. The letter stated that
Slaughter had “independently represented [M.C.] and my
consultation and review with her is now complete.” She reported
that her consultations with M.C. and M.C.’s signature to the
Agreement “prove to me that my client has a clear and informed
understanding of the nature of the Gestational Surrogacy
Contract and agrees to be fully bound by its terms.” Slaughter
provided her “full legal clearance to proceed with medication in
this matter.”
2. Proceedings To Determine Parentage
An embryo transfer took place on August 17, 2015. A
subsequent pregnancy test confirmed a pregnancy, and an
ultrasound on September 8, 2015, revealed that M.C. was
carrying triplets.
5
On January 16, 2016, before the Children were born,
Father filed a “Verified Petition to Declare Existence of Parent-
Child Relationship Between the Children to be Born and
Petitioner, and Non-existence of Parent-Child Relationship
Between the Children to be Born and Respondent/Surrogate”
(Petition). The Petition was supported by declarations from
Father, Father’s counsel, and a doctor who was responsible for
the embryo creation and transfer procedure. Father also lodged a
copy of the Agreement and filed a memorandum of points and
authorities in support of the Petition (Memorandum).
Father’s submission did not include a declaration from
M.C. or her counsel. The Memorandum stated that “[i]n
conjunction with the Petition it was anticipated Respondent,
[M.C.], would comply with the [In Vitro Fertilization Surrogacy]
Agreement and provide her Declaration in support of the Petition
and a Stipulation admitting that she was not the parent of the
Children at issue and did not wish to have a parental
relationship with the Children. At this time that may not be.”
A hearing on the Petition was noticed for February 9, 2016.
On February 1, 2016, M.C. filed a 65-page verified answer and
counterclaim responding to Father’s Petition. The answer and
counterclaim sought a range of relief, including that: (1) M.C. be
declared “the legal parent and mother” of the Children; (2) Father
be declared “not the sole parent” of the Children and “not entitled
to the benefits” of section 7962; (3) Mother be awarded sole
custody of one of the Children, and a custody trial be scheduled to
determine “what custody arrangement will be in the best
interests” of the other two Children; (4) a declaration that section
7962 violates the due process and equal protection rights of the
Children and of M.C.; (5) a declaration that the Agreement
6
cannot form the basis for terminating the parental rights of M.C.;
and (6) an order that Father submit to DNA testing to determine
whether he is the genetic father of the Children.
The counterclaim described a series of e-mail
communications from Father in which he allegedly sought to
abort at least one of the fetuses, first for financial reasons and
then out of an allegedly pretextual concern for the health of the
children. M.C. refused to abort any of the fetuses, stating that
she is “pro-life.” She offered to raise one of the Children.
The counterclaim also alleged that Father was single,
50 years old, deaf, employed as a postal worker in Georgia, and
responsible for caring for his elderly parents, with whom he lives.
M.C. alleged that Father is “not capable of raising three children
by his own admission, and may not be capable of raising even one
or two children.” M.C. claimed that she learned for the first time
while pregnant that the organization that facilitated the
surrogacy arrangement had never done a “home study” to
determine whether Father “is capable of raising any children.”
After filing the counterclaim, M.C. moved ex parte on
February 4, 2016, to continue the date for the hearing on the
Petition, requesting a schedule for discovery concerning Father’s
willingness and ability to raise the Children. The ex parte
application recited many of the same factual allegations
concerning M.C.’s communications with Father that were
included in M.C.’s counterclaim.
The trial court heard the ex parte application on
February 8, 2016. The court denied the application, finding that
M.C. had been aware of the Petition for a month and the ex parte
proceeding was therefore not justified. The court also
summarized the content and the circumstances of the Agreement
7
and the Petition, referred to the decisions in Calvert and
Buzzanca and the requirements of section 7962, and observed
that Father “has complied with these requirements other than
submitting the declaration of [M.C.] and her attorney.” Father’s
counsel indicated that he might have to call M.C.’s former
counsel, Slaughter, to testify in lieu of a declaration.
The hearing on Father’s Petition took place on February 9,
2016. Father’s counsel explained that he had not been able to
obtain a declaration from Slaughter because she had previously
represented M.C. However, Father had served her with a
subpoena and she was present in court. The court permitted her
to testify.
Slaughter testified that she had “probably represented over
a thousand surrogates.” She previously represented M.C. with
respect to two surrogacy arrangements, including the Agreement
with Father. M.C. initially waived the attorney-client privilege to
permit Slaughter to testify about her representation, but then
revoked the waiver when Father’s counsel began to question
Slaughter concerning the first surrogacy arrangement. Over
objections, the court permitted Slaughter to authenticate her
May 31, 2015 transmittal letter, and to testify that the contents
were “true and correct.” Slaughter also testified that it was her
standard practice to review surrogacy contracts with her clients
thoroughly and to discuss any questions they might have. When
asked if she had employed her standard practice with M.C.,
Slaughter responded that she has “not varied my practice
regarding surrogates or intended parents or egg donors, for that
matter, whenever I undertake representation.”
On cross-examination, Slaughter testified that she had
about 15 telephone conversations with M.C. concerning the
8
surrogacy arrangement with Father, including revisions to the
Agreement. She testified that she “withdrew my representation
when . . . it became obvious [M.C.] was not following my legal
advice.” Over objection, the trial court admitted the May 31,
2015 transmittal letter as an exhibit.
Prior to ruling on the Petition, the trial court also
questioned M.C. under oath. In response to the court’s questions,
M.C. confirmed that she had signed the Agreement and initialed
each page.
3. The Trial Court’s Ruling
The court found that Father “substantially complied” with
section 7962, “the holding of the Supreme Court in Johnson v.
Calvert, and the holding of” Buzzanca. Specifically, the court
found that M.C. “read and reviewed every page of the gestational
agreement”; that she initialed and signed the Agreement”; that
“her agreement was voluntary”; and that “all the other provisions
of 7962 have been satisfied.” The court entered a detailed
judgment establishing that Father is the sole parent of the
Children.
With respect to M.C.’s counterclaim, the trial court initially
observed that it appeared to be “procedurally improper,” and that
the court did not believe that “counsel is even entitled to
counterclaim.” However, the court declined to strike the
counterclaim. The court concluded that the documents M.C.
submitted in support of the counterclaim were, “essentially,
challenges to the petition.” The court denied the counterclaim on
the merits “even if it were proper.”
M.C. filed her notice of appeal on February 23, 2016.3
3 M.C. also filed a petition for a writ of supersedeas, which
this court denied on April 14, 2016. In addition to these
9
DISCUSSION
Section 7962 establishes a procedure for a summary
determination of parental rights when specific requirements for
an enforceable surrogacy agreement are met. The section
requires that an “assisted reproduction agreement for gestational
carriers” contain: (1) the date on which the agreement was
executed; (2) the identity of the persons “from which the gametes
originated, unless anonymously donated”; (3) the identity of the
“intended parent or parents”; and (4) disclosure of how the
“intended parents” will “cover the medical expenses of the
gestational carrier and of the newborn or newborns.” (§ 7962,
subd. (a)(1)–(4).) The section also requires that the surrogate and
the intended parent be represented by separate counsel with
respect to the agreement; that the agreement be executed and
notarized; and that the parties begin embryo transfer procedures
only after the agreement has been fully executed. (§ 7962, subds.
(b)–(d).)
An action to “establish the parent-child relationship
between the intended parent or parents” and the child conceived
pursuant to an assisted reproduction agreement may be filed
before the child’s birth. The parties are to “attest, under penalty
of perjury, and to the best of their knowledge and belief,” as to
their compliance with section 7962 in entering into their
agreement. (§ 7962, subd. (e).) A notarized agreement signed by
proceedings in state court, M.C. filed an action on February 2,
2016, in federal court, asserting various alleged constitutional
violations. (See Cook v. Harding (C.D. Cal. 2016) 2016 U.S. Dist.
LEXIS 73466 at pp. *18–*20 (Harding).) The federal court
dismissed that action on June 6, 2016, on abstention grounds.
(Id. at p. *39.)
10
all parties “with the attached declarations of independent
attorneys” lodged with the court in accordance with section 7962
“shall rebut any presumptions” of parenthood contained in
various specified code sections. (§ 7962, subd. (f)(1).)
Section 7962 also provides that, on petition by any party to
a properly executed agreement, the court shall issue a judgment
or order establishing “the parent-child relationship of the
intended parent or intended parents identified in the surrogacy
agreement,” subject to proof of compliance with the section.
(§ 7962, subd. (f)(2).) That judgment shall also establish that “the
surrogate, her spouse, or partner is not a parent of, and has no
parental rights or duties with respect to, the child or children.”
(Ibid.) The judgment “shall terminate any parental rights of the
surrogate and her spouse or partner without further hearing or
evidence, unless the court or a party to the assisted reproduction
agreement for gestational carriers has a good faith, reasonable
belief that the assisted reproduction agreement for gestational
carriers or attorney declarations were not executed in accordance
with this section.” (Ibid.)
In light of these well-defined criteria and procedures and
despite the range of M.C.’s arguments, there are ultimately only
two questions that determine the outcome of this appeal. First,
did Father comply with the requirements for establishing a
parent-child relationship and for terminating M.C.’s claimed
parental rights under section 7962? Second, was the trial court’s
application of section 7962 here consistent with the constitutional
rights of M.C. and the Children? We conclude that the answer to
both questions is yes.
11
1. Standard of Review
Neither party addresses the appropriate standard of review
to apply to M.C.’s challenges to the judgment. We employ well-
accepted principles in reviewing M.C.’s various arguments. Most
of M.C.’s arguments focus on the interpretation and
constitutionality of statutes, which we review under a de novo
standard. (See Herbst v. Swan (2002) 102 Cal. App. 4th 813, 816
[constitutionality of statute]; In re D.S. (2012) 207 Cal. App. 4th
1088, 1097 [statutory interpretation].) To the extent that M.C.’s
arguments involve a challenge to the trial court’s findings of fact
relevant to M.C.’s claimed parental rights, we apply the
substantial evidence standard. (Adoption of Arthur M. (2007)
149 Cal. App. 4th 704, 717 [applying substantial evidence
standard to factual findings concerning biological father’s right to
object to adoption].)
2. M.C. Is Not Estopped From Challenging the Legal
Effect or Validity of the Agreement
Before reaching the merits of M.C.’s arguments, we
consider Father’s claim that M.C. is estopped from making those
arguments by the terms of the Agreement. Father argues that
M.C. is precluded from claiming that she has any parental rights
concerning the Children because she promised in the Agreement
that she would not assert any such rights. In support, Father
cites cases holding that parties can be estopped from seeking an
unfair benefit by manipulating or taking inconsistent positions in
judicial proceedings.
The principle involved in those cases does not apply here.
Those cases focus on the need to protect the integrity of judicial
12
proceedings.4 The conduct that Father argues should result in
estoppel here was not a position taken in a judicial proceeding
but rather commitments made in a written agreement before the
Children had been conceived and before any judicial action had
been initiated. What Father seeks is not estoppel, but rather
enforcement of the Agreement. Father asks us to find the
promises that M.C. made in the Agreement enforceable on their
own terms, before even considering whether such summary
enforcement is appropriate here under the governing statute and
the constitutional arguments that M.C. has made.
We decline that approach. M.C.’s arguments challenge the
proper interpretation and validity of the Agreement. Whatever
the merits of those arguments, the doctrine of estoppel does not
provide a ground to ignore them. We will not require
4 In In re Griffin (1967) 67 Cal. 2d 343, the court held that a
defendant accused of a probation violation could not obtain
dismissal as a result of his conduct in requesting a continuance
that extended beyond the period of his probation. A contrary rule
would “ ‘permit the parties to trifle with the courts.’ ” (Id. at
p. 348, quoting City of Los Angeles v. Cole (1946) 28 Cal. 2d 509,
515.) In re Marriage of Hinman (1992) 6 Cal. App. 4th 711, 716,
held that a wife could not challenge a judgment in a dissolution
action awarding joint custody of her two children from a prior
marriage where she stipulated to the judgment. Similarly, in
Kristine H. v. Lisa R. (2005) 37 Cal. 4th 156, one lesbian partner
was estopped from arguing that her estranged partner was not
the parent of their child when she had previously stipulated to a
judgment declaring them both the “ ‘joint intended legal
parents.’ ” (Id. at p. 161.) Again, the court was concerned that a
contrary result would “ ‘ “ ‘trifle with the courts.’ ” ’ ” (Id. at
p. 166, quoting Adoption of Matthew B. (1991) 232 Cal. App. 3d
1239, 1269.)
13
enforcement of the Agreement without first considering whether
it is enforceable. (Cf. In re Marriage of Moschetta (1994) 25
Cal. App. 4th 1218, 1235 [there is “no doubt that enforcement of a
surrogacy contract prior to a child’s birth presents a host of
thorny legal problems”]; Buzzanca, supra, 61 Cal.App.4th at
p. 1422 [“There is a difference between a court’s enforcing a
surrogacy agreement and making a legal determination based on
the intent expressed in a surrogacy agreement”].) We therefore
reach the merits of M.C.’s appeal.
3. The Trial Court Correctly Ruled That the Agreement
Substantially Complied With the Requirements of
Section 7962
The Agreement contained all the information required by
section 7962. It included: (1) the dates it was executed; (2) the
source of the gametes to be used for the embryos (Father and an
anonymous egg donor); (3) the identity of the intended parent
(Father); and (4) disclosure of how medical expenses would be
covered. (§ 7962, subd. (a).) Father and M.C. were represented
by separate counsel in negotiating the Agreement. (§ 7962, subd.
(b).) The parties’ signatures were notarized. (§ 7962, subd. (c).)
And M.C. did not undergo an embryo transfer procedure or begin
medication to prepare for such a procedure until after the
Agreement had been executed. (§ 7962, subd. (d).)
Father also substantially complied with the procedural
requirements under section 7962 for summary determination of
parentage pursuant to the Agreement. Father lodged a copy of
the Agreement. (§ 7962, subd. (e).) Because M.C. opposed the
petition to declare Father the sole parent, she did not provide a
declaration attesting under penalty of perjury that the parties
complied with section 7962 in entering into the Agreement.
14
(Ibid.) However, she signed the Agreement itself under penalty
of perjury, affirming that the contents of the Agreement were
“true and correct except as to those matters which are based on
upon information and belief, and as to those matters, we believe
them to be true.” The Agreement states that sections 7960 and
7962 “apply to this Agreement,” and that the parties “are also
informed and hereby represent that they have taken active steps
to execute this Agreement in compliance with Sections 7960 (as
amended) and 7962.” M.C. also confirmed under oath at the
hearing on the Petition that she had signed the Agreement and
initialed each page.
Father also did not provide a declaration from M.C.’s
lawyer for the Agreement, Slaughter, as required under section
7962, subdivision (f)(1) to rebut various statutory presumptions
concerning parenthood. However, Father explained to the trial
court that Slaughter was not in a position to provide such a
declaration supporting the Petition in light of her prior
representation of M.C., and he subpoenaed Slaughter to testify at
the hearing on the Petition. At the hearing, Father elicited
testimony from Slaughter showing that she had provided M.C.
with independent representation with respect to the Agreement;
that M.C. had a “clear and informed understanding of the nature
of the [Agreement];” and that she had entered into the
Agreement “freely and voluntarily” and had agreed to be “fully
bound by its terms.”5
5 In her opening brief, M.C. states that she contended
below that she “did not receive independent legal advice
concerning the contract.” It is unclear whether she intended to
raise this claim on appeal. If so, she has forfeited the claim, as
she has not provided any argument or citations to authority or to
15
Under these facts, Father substantially complied with each
requirement in section 7962 to obtain the orders concerning
parenthood authorized by that section. The Agreement itself
contained M.C.’s affirmation under oath that she intended to
comply with section 7962 in entering into the Agreement. And
Slaughter’s testimony under oath was the functional equivalent
of a declaration. Indeed, it was arguably a better procedural
vehicle for testimony about M.C.’s capacity and intent, as it
provided an opportunity for cross-examination.
In the analogous area of consent to adoption, courts have
concluded that substantial compliance with regulatory
requirements is sufficient to provide enforceable consent, so long
as the purpose of the requirements is met. (See Tyler v.
Children’s Home Society (1994) 29 Cal. App. 4th 511, 540 [partial
noncompliance with details of regulations for providing consent
to adoption did not vitiate consent where the “purpose of assuring
voluntary and knowing decisionmaking by the parents” was
fulfilled]; Adoption of Baby Boy D. (2001) 93 Cal. App. 4th 1, 12–13
[evidence showed that birth mother “substantially complied with
every reasonable objective of the statute and regulations” despite
inadvertent failure to check one of the boxes on a consent form].)
Similarly, the evident purpose of the detailed requirements in
section 7962 is to ensure that the parties to an assisted
reproduction agreement enter into the agreement knowingly and
voluntarily. Where, as here, there is substantial compliance with
the record in support. (People v. Stanley (1995) 10 Cal. 4th 764,
793.) We therefore need not consider whether her argument
about the adequacy of the legal counsel she received was relevant
to the requirements of section 7962 and, if so, whether the trial
court erred in rejecting her argument below.
16
section 7962’s requirements showing that the parties’ agreement
was knowing and voluntary, the purpose of the statute is met.
Despite the evidence that the Agreement complied with the
requirements of section 7962, M.C. argues that it could not
provide the basis to establish Father’s parenthood under that
section for several reasons. First, M.C. claims that, even if all the
requirements of section 7962 are met, that is not sufficient to
rebut the presumption of parenthood that is established by giving
birth. Section 7610, subdivision (a) provides that “[b]etween a
child and the natural parent,” a parent and child relationship
“may be established by proof of having given birth to the child.”
M.C. correctly points out that this subdivision is not included in
the list of presumptions that are rebutted by lodging a notarized
assisted reproduction agreement “with the attached declarations
of independent attorneys” under section 7962, subdivision (f)(1).6
Neither the text nor the legislative history of section 7962
provides any indication of why the evidence of parenthood
recognized under section 7610, subdivision (a) was omitted from
the list of rebutted presumptions under section 7962, subdivision
6 Subdivision (f)(1) of section 7962 states that lodging an
executed and notarized agreement and attorney declarations
“shall rebut any presumptions contained within Part 2
(commencing with Section 7540), subdivision (b) of Section 7610,
and Sections 7611 and 7613, as to the gestational carrier
surrogate, her spouse, or partner being a parent of the child or
children.” (Italics added.) Thus, the list of rebutted
presumptions includes only subdivision (b) of section 7610, which
concerns establishing a parent and child relationship between a
child and “an adoptive parent.”
17
(f)(1).7 Indeed, its omission seems inconsistent with the purpose
of the provision. A claim that a gestational carrier is the “birth
mother” is the argument one would most likely expect a
surrogate to make to establish a parent and child relationship.
In summarizing the bill that became section 7962, the Assembly
Committee on the Judiciary explained that “if a woman
undergoes in vitro fertilization, under a physician’s supervision,
using eggs donated on behalf of intended parent or parents and
the woman agrees to that in a writing signed by the woman and
the intended parents prior to creation of the embryo, then the
woman is not treated as the natural parent of the child and the
intended parents are presumed to be the child’s natural parents.”
(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1217
(2011–2012 Reg. Sess.) as amended April 26, 2016, at pp. 1–2
(Assembly Analysis).) Similarly, an analysis by the Senate
Judiciary Committee explained that the bill would provide that
“any agreement that is executed in accordance with the
7 Father suggests that section 7962, subdivision (f)(1) does
not mention section 7610, subdivision (a) because that
subdivision does not actually create a presumption. The basis for
this argument is unclear. The subdivision states that giving
birth to a child may establish a parent child relationship.
Moreover, our Supreme Court in Calvert characterized section
7610, subdivision (a)’s predecessor statute (former Civil Code
section 7003) as establishing a presumption of motherhood, and
rejected the argument that the statute could not apply to a
gestational carrier who is not genetically related to the child.
(See Calvert, supra, 5 Cal.4th at pp. 92–93 & fn. 9.) Father also
does not explain why, if section 7610 does not contain any
presumptions, section 7610, subdivision (b) would be included in
the list of rebutted presumptions under section 7962, subdivision
(f)(1).
18
provisions of the bill is presumptively valid and shall rebut any
presumptions that the surrogate, and her spouse or partner, are
the parents of the child.” (Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 1217 (2011–2012 Reg. Sess.) as amended
June 11, 2012, at p. 4 (Senate Analysis).)
We need not attempt to resolve this apparent discrepancy.
Whether or not section 7962, subdivision (f)(1) rebuts a
presumption of parenthood based upon giving birth, the
subsequent subpart of subdivision (f) makes clear that a
surrogate has no parental rights when an assisted reproduction
agreement complies with the requirements of the section.
Section 7962, subdivision (f)(2) states that, in ruling on a
petition, “[s]ubject to proof of compliance with this section, the
judgment or order shall establish the parent-child relationship of
the intended parent or intended parents identified in the
surrogacy agreement and shall establish that the surrogate, her
spouse, or partner is not a parent of, and has no parental rights
or duties with respect to, the child or children.” This directive is
quite clear. Compliance with the requirements of an assisted
reproduction agreement and submitting the proof identified in
section 7962 is all that is necessary to establish a parent-child
relationship for the intended parent or parents and to extinguish
any claim of parenthood by the surrogate.
M.C. argues that this subdivision does not support the trial
court’s order here because Father’s alleged conduct in requesting
an abortion of one fetus and allegedly threatening to surrender
one of the Children through adoption showed that he did not
“intend” to be a parent. Whatever its merits, the argument is
foreclosed by the language of the subdivision, which provides that
the “intended parent or intended parents identified in the
19
surrogacy agreement” are to be declared the sole parents of
children born to a surrogate. (§ 7962, subd. (f)(2), italics added.)
There is no doubt here that Father was the intended parent
identified in the Agreement.
The conclusion that Father is the intended parent for
purposes of section 7962 is also supported by the definition of
“ ‘[i]ntended parent’ ” in section 7960, subdivision (c). That
provision identifies an “intended parent” as an individual “who
manifests the intent to be legally bound as the parent of a child
resulting from assisted reproduction.” The Agreement clearly
assigns that responsibility to Father.
Apart from these explicit statutory provisions, M.C.’s
argument is inconsistent with the apparent purpose of section
7962 to provide a certain and reliable procedure to determine the
parent-child relationship before the parties enter into a surrogacy
agreement. (See Senate Analysis, supra, at p. 7 [as a result of
the bill enacting section 7962, “intended parents, surrogates, and
courts would arguably have a clear procedure to follow in
creating and enforcing surrogacy agreements and determining
parental rights”].) Permitting a surrogate to change her mind
about whether the intended parent would be a suitable parent—
or requiring a court to rule on whether the intended parent’s
conduct subsequent to executing an assisted reproduction
agreement is appropriate for a prospective parent—would
undermine the predictability of surrogacy arrangements. We
agree with the observation of the federal court in Harding, supra,
that, were M.C.’s position to be accepted, we are “at a loss to
imagine an intended parent in this state who would contract with
a gestational surrogate, knowing that the woman could, at her
whim, ‘decide’ that the intended parent or parents are not up to
20
snuff and challenge their parenting abilities in court.” (Harding,
supra, 2016 U.S. Dist. LEXIS 73466 at p. *23.)
4. M.C.’s Constitutional Challenges Fail
M.C. makes various constitutional arguments challenging
the procedure for establishing a parent-child relationship under
section 7962 and the legitimacy of surrogacy arrangements
generally. It is important to note at the outset that our Supreme
Court has already rejected constitutional challenges to surrogacy
agreements and ruled that such agreements are consistent with
the public policy of California. (See Calvert, supra, 5 Cal.4th at
pp. 95, 98–100.) Indeed, the Legislature’s stated intent in
enacting section 7962 was to codify the decisions in Calvert and
Buzzanca, supra, 61 Cal. App. 4th 1410. (See Assembly Analysis,
supra, at p. 2 [“Case law in California makes clear that the
intended parents are the natural parents and this bill clarifies
and codifies that case law”]; Senate Analysis, supra, at p. 4
[“California case law establishes that even without a genetic link,
the parties who intended to bring a child into the world are the
child’s legal parents [citing Calvert and Buzzanca]. This bill,
with respect to surrogacy agreements, seeks to codify and clarify
that case law by requiring parties to enter into surrogacy
agreements, as specified, prior to the commencement of any
medical treatment related to the surrogacy arrangement”].)
In Calvert, the court considered competing claims of
parental rights by a surrogate and a husband and wife who
contracted with the surrogate to give birth to a child for them.
The child was conceived with sperm from the husband and an egg
from the wife. The parties executed a contract providing that the
child would be taken into the couple’s home as “their child,” and
that the surrogate would relinquish “all parental rights.” The
21
relationship between the parties deteriorated before the child
was born, leading to competing lawsuits seeking a declaration of
parental rights. (Calvert, supra, 5 Cal.4th at pp. 87–88.)
The Calvert court examined the competing parenthood
claims under the Uniform Parentage Act (the Act), which was the
only statutory framework available at the time for assessing the
parties’ parenthood claims.8 The court concluded that both the
surrogate and the wife who donated her egg had plausible claims
for parental rights under the Act. In that circumstance, the court
gave effect to the parties’ intent for parentage as expressed in
their agreement. The court noted that, “[b]ut for their acted-on
intention, the child would not exist.” (Calvert, supra, 5 Cal.4th at
p. 93.) The court observed that “[n]o reason appears why [the
surrogate’s] later change of heart should vitiate the
determination that [the wife] is the child’s natural mother.”
(Ibid.) The court rejected the public policy and constitutional
objections that the surrogate raised to the parties’ contract,
concluding that giving effect to the parties’ intent “does not
offend the state or federal Constitution or public policy.” (Id. at
pp. 87, 95–100.)9
8 The Act is now codified at section 7600 et seq.
9 In Buzzanca, the Fourth District Court of Appeal applied
the reasoning of Calvert to a situation where a surrogate gave
birth to a child conceived with the sperm and egg of anonymous
donors at the instigation of a husband and wife who subsequently
separated. In that case, neither the surrogate nor the husband
claimed parental rights, and the trial court concluded that the
child had no parents. The Court of Appeal reversed. The court
held that the wife in that case was “situated like a husband in an
artificial insemination case whose consent triggers a medical
procedure which results in a pregnancy and eventual birth of a
22
M.C. attempts to distinguish Calvert and limit the scope of
its holding by noting that the court in that case resolved
competing claims of parenthood by two claimed mothers: The
gestational carrier and the genetic mother of the child. The court
acknowledged that “[b]oth women . . . adduced evidence of a
mother and child relationship as contemplated by the Act,” but
concluded that “for any child California law recognizes only one
natural mother, despite advances in reproductive technology
rendering a different outcome biologically possible.” (Calvert,
supra, 5 Cal.4th at p. 92.) Here, of course, the dispute is not
between two claimed mothers, but between a claimed mother and
Father, the intended parent under the Agreement.
M.C.’s argument misses the broader implication of the
holding in Calvert. The court held that it could give effect to the
parties’ intentions for the parentage of the child as expressed in
their surrogacy contract because the agreement was “not, on its
face, inconsistent with public policy.” (Calvert, supra, 5 Cal.4th
at p. 95.) That holding is ultimately dispositive for all of the
constitutional arguments that M.C. raises here. Section 7962
permits the parties to a surrogacy arrangement to enter into a
legally binding contract—subject to specific statutory
safeguards—that determines the parentage of children conceived
pursuant to the arrangement. There is no constitutional
impediment to giving effect to the parties’ intent expressed in
such a contract.
child.” (Buzzanca, supra, 61 Cal.App.4th at p. 1421.) Therefore,
just as in Calvert, motherhood could plausibly be established in
two women, and the conflict should be resolved by giving effect to
the intention of the parties. (Ibid.)
23
a. M.C. has standing to assert constitutional
claims on behalf of the Children
Father argues that M.C. does not have standing to assert
the Children’s constitutional rights on appeal because she is not a
parent. Like his estoppel theory, this argument is inextricably
bound up in the merits of M.C.’s appeal.
But for the Agreement, M.C. would have a colorable claim
to motherhood based on the fact that she gave birth to the
Children. (See § 7610, subd. (a); Calvert, supra, 5 Cal.4th at
pp. 89–90; Robert B. v. Susan B. (2003) 109 Cal. App. 4th 1109,
1115 [woman who gave birth to a child from an embryo belonging
to another couple that was mistakenly implanted by a fertility
clinic “clearly established a mother-child relationship by the
undisputed fact that she gave birth” to the child].) Thus, Father’s
standing argument depends upon a conclusion that the
Agreement is valid and that by executing it M.C. surrendered
any claims to motherhood that she might have. One of the
challenges that M.C. seeks to assert to the Agreement’s validity
is the claimed constitutional rights of the Children to a parent-
child relationship with her. Whatever the merits of this claim,
concluding that she has no standing to assert it because she is
not a parent would assume that her argument fails before it is
even considered. We do not believe that Father’s standing
argument compels such a circular result.
Father relies on the rule that only a “party aggrieved” has
standing to appeal under Code of Civil Procedure section 902.
That rule does not help him. We “liberally construe the issue of
standing and resolve doubts in favor of the right to appeal.” (In
re L. Y. L. (2002) 101 Cal. App. 4th 942, 948 [parent had standing
24
to raise the sibling relationship exception to termination of
parental rights].)
M.C. has standing to assert her own claimed statutory and
constitutional rights to a parent-child relationship with the
Children. (See § 7650, subd. (a) [“Any interested person may
bring an action to determine the existence or nonexistence of a
mother and child relationship”]; Calvert, supra, 5 Cal.4th at pp.
89–90. See also In re Rauch (1951) 103 Cal. App. 2d 690, 694–695
[father had standing to appeal an order declaring his child to be a
ward of the court despite a previous order appointing other
relatives as guardians and giving them custody of the child].)
M.C.’s interest in a relationship with the Children is intertwined
with the Children’s alleged interest in a relationship with her.
She may therefore assert the Children’s interests along with her
own. “Where the interests of two parties interweave, either party
has standing to litigate issues that have an impact upon the
related interests. This is a matter of first party standing.” (In re
Patricia E. (1985) 174 Cal. App. 3d 1, 6 [father had standing to
raise the issue of his minor daughter’s right to counsel in a
dependency proceeding because “independent representation of
the daughter’s interests impacts upon the father’s interest in the
parent-child relationship”], disapproved on other grounds in In re
Celine R. (2003) 31 Cal. 4th 45, 60.)10
10 Father also relies on federal cases discussing whether
parties had standing to raise constitutional claims under the
constitutional and prudential standing requirements in federal
court. He does not explain the relevance of those cases to this
proceeding. To the extent such cases are analogous, they also do
not support Father’s argument. The United States Supreme
Court has found that foster parents had standing to argue their
view of the constitutional interests of minor children in a state’s
25
In other contexts, courts have found that persons who had
no claim to be natural or genetic parents had standing to assert
the interests of minor children. (See, e.g., In re Santos Y. (2001)
92 Cal. App. 4th 1274, 1314, fn. 24 [foster parents could raise the
constitutional claims of a minor in a custody dispute under the
Indian Child Welfare Act (ICWA) even though they did not
themselves possess a fundamental interest in a relationship with
the minor under a substantive due process analysis];
Guardianship of Olivia J. (2000) 84 Cal. App. 4th 1146, 1152–1153
& fn. 7 [appellant could pursue a guardianship proceeding on
behalf of a minor who previously lived with her and her partner,
despite appellant’s status as a nonparent who was a “former
participant in a lesbian relationship”].) The fact that the
Children are not parties to this appeal and therefore cannot
assert their own interests provides further reason to consider
M.C.’s arguments on their behalf. (Cf. In re Alexandria P. (2014)
228 Cal. App. 4th 1322, 1342 [de facto parents lacked standing to
raise constitutional challenges to the ICWA on minor’s behalf
where the minor’s counsel and guardian ad litem “sought an
outcome consistent with the ICWA’s requirements”].) We
therefore proceed to the merits of M.C.’s constitutional claims.
foster care procedures, even when the children and parents were
separately represented parties. (Smith v. Organization of Foster
Families for Equality & Reform (1977) 431 U.S. 816, 841, fn. 44.)
But for the Agreement, M.C. would have at least as much
interest as a foster parent in the Children’s alleged constitutional
right to a parent-child relationship with her. (See Calvert, supra,
5 Cal.4th at p. 99, fn. 13 [citing Smith and noting that the trial
court in Calvert had analogized the surrogate’s relationship with
the child to “that of a foster mother”].)
26
b. Procedural due process
M.C. claims that the trial court denied her due process
rights and the due process rights of the Children under the
United States and California constitutions by failing to consider
her counterclaim and failing to give her a hearing prior to
terminating her claimed parental rights. We reject the
argument.
The record shows that the trial court gave M.C. the hearing
that section 7962 contemplates. Section 7962, subdivision (f)(2)
provides that, “[u]pon motion by a party to the assisted
reproduction agreement for gestational carriers, the matter shall
be scheduled for hearing before a judgment or order is issued.”
The trial court did conduct a hearing to determine if the
requirements of section 7962 had been met. With respect to the
one procedural element of the statute that had not yet been
met—a declaration from M.C.’s former attorney—the court heard
the attorney’s testimony and permitted M.C. to cross-examine.
Section 7962 specifies that the only showing necessary to
obtain an order establishing the parentage of the intended
parent(s) and extinguishing claims of parental rights by a
surrogate is “proof of compliance with this section.” (§ 7962,
subd. (f)(2).) Upon such a showing, the judgment or order “shall
terminate any parental rights of the surrogate and her spouse or
partner without further hearing or evidence, unless the court or a
party to the assisted reproduction agreement for gestational
carriers has a good faith, reasonable belief that the assisted
reproduction agreement for gestational carriers or attorney
declarations were not executed in accordance with this section.”
(Ibid., italics added.) Thus, section 7962 does not leave room for
litigating challenges to the parental rights of intended parents on
27
any basis beyond the circumstances and content of the surrogacy
agreement itself.
The trial court therefore properly denied M.C.’s
counterclaim under section 7962, subdivision (f)(2) without
further proceedings. The counterclaim did not challenge whether
the Agreement fulfilled the requirements of section 7962 or allege
that the Agreement was “not executed in accordance with”
section 7962. Rather, it asserted broad claims challenging the
legitimacy and constitutionality of surrogacy agreements and
contesting Father’s fitness and intention to be a parent. Under
section 7962, subdivision (f)(2), no “further hearing or evidence”
was required to consider such claims.11
M.C.’s procedural due process claim therefore amounts to a
challenge to the constitutionality of section 7962. The crux of the
claim is that the statutory scheme improperly permits a
surrogate’s parent-child relationship to be denied based only
upon the intentions expressed in a surrogacy contract without
further consideration of the surrogate’s post-birth wishes, the
intended parent’s fitness to be a parent, or the best interests of
the children. The substance of M.C.’s procedural due process
claim is therefore indistinguishable from her substantive due
process and equal protection claims, which are discussed below.
11 In attacking the legitimacy of section 7962 in her
counterclaim, M.C. in fact acknowledged the limited showing
necessary to terminate a surrogate’s claimed parental rights
under section 7962: “California’s Surrogacy Enabling Statute,
C.F.C. § 7962(f)(2) authorizes the court to terminate the parental
rights of [M.C.] based solely upon proof that the ‘gestational’
surrogate signed a surrogacy contract which complies with § 7962
and nothing more.”
28
c. Alleged violation of the Children’s substantive
due process rights
M.C. argues that the termination of her claimed parental
rights under section 7962 violates the Children’s liberty interest
in: (1) their relationship with their mother; and (2) freedom from
“commodification.” We conclude that both of these arguments are
foreclosed by the court’s opinion in Calvert.
M.C.’s argument fails in light of her own agreement
surrendering any right to form a parent-child relationship with
the Children. Her argument amounts to a claim that she either:
(1) had no right to make such a promise; or (2) was permitted to
later change her mind about that promise based upon the best
interests of the Children. Both claims are inconsistent with the
court’s decision in Calvert.
The first claim is a direct challenge to the legitimacy of
surrogacy arrangements. If a child’s liberty interest in a
relationship with its birth mother trumps the surrogate’s right to
enter into a contract agreeing to surrender the child to intended
parents, then no surrogacy arrangement is possible. That result
would conflict with the fundamental holding in Calvert that
surrogacy agreements are not inconsistent with public policy.
(Calvert, supra, 5 Cal.4th at pp. 87, 95.) It would also run afoul
of the court’s observation that “[t]he argument that a woman
cannot knowingly and intelligently agree to gestate and deliver a
baby for intending parents carries overtones of the reasoning that
for centuries prevented women from attaining equal economic
rights and professional status under the law.” (Id. at p. 97.)
The second claim conflicts with the court’s rejection of the
adoption paradigm for surrogacy arrangements. By analogy to
the statutes governing adoption, the surrogate in Calvert argued
29
that a prebirth waiver of her parental rights was unenforceable.
The court rejected that argument, concluding that “[g]estational
surrogacy differs in crucial respects from adoption and so is not
subject to the adoption statutes.” (Calvert, supra, 5 Cal.4th at
pp. 95–96.) The court also held that a decision on the parentage
of children born to a surrogacy arrangement is separate from
determining custody based upon the best interests of the
children, which should be left to the dependency laws. (Id. at
pp. 93–94, fn. 10.)
The opinion in Calvert also precludes M.C.’s argument that
surrogacy agreements impermissibly result in the
“commodification” of children by permitting their sale. The court
in Calvert expressly rejected the concern that “the practice of
surrogacy may encourage society to view children as
commodities, subject to trade at their parents’ will.” (Calvert,
supra, 5 Cal.4th at p. 97.) Moreover, the court rejected the
argument that payments to the surrogate in that case were in
exchange for the surrender of her parental rights, instead
concluding that they were “meant to compensate her for her
services in gestating the fetus and undergoing labor.” (Id. at
p. 96.) Similarly, here, payments to M.C. under the Agreement
were for the stated purpose of “compensation for her discomfort,
pain, suffering and for pre-birth support” and for living expenses.
Moreover, M.C.’s argument that she could not enter into the
surrogacy arrangement in exchange for compensation also
amounts to a wholesale attack on the legitimacy of surrogacy
contracts, which is inconsistent with the holding in Calvert.12
12M.C. argues that Calvert did not decide this issue
because it only considered whether the payment of money to the
surrogate in that case violated this state’s public policy, not
30
d. Alleged violation of the Children’s equal
protection rights
M.C. argues that denying a parent-child relationship
between her and the Children violated the Children’s right to
equal protection under the United States Constitution. M.C.
claims that permitting the children of surrogates to be “placed”
with intended parents based only upon the intent of the
contracting parties without considering the best interests of the
children denies such children the consideration given to children
in other contexts involving state-sponsored placement, such as
adoption and marital dissolution proceedings.
While the court did not consider this argument directly in
Calvert, we believe that the court’s opinion in that case forecloses
it. As mentioned, the court concluded that the determination of
parentage is separate from the question of custody. (See Calvert,
supra, 5 Cal.4th at pp. 93–94, fn. 10.) Whether a particular
custodial arrangement is harmful to a child is a subject for the
whether it was constitutionally permissible. The argument
ignores the source of public policy against which the validity of
contractual provisions is measured. A court’s understanding of
the public policy affecting a contract is generally derived from
constitutional and statutory provisions. (See City of Santa
Barbara v. Superior Court (2007) 41 Cal. 4th 747, 777, fn. 53
[courts “may, in appropriate circumstances, void contracts on the
basis of public policy,” but “ ‘[t]he determination of public policy
of states resides, first, with the people as expressed in their
Constitution and, second, with the representatives of the
people—the state Legislature,’ ” quoting Jensen v. Traders &
General Ins. Co. (1959) 52 Cal. 2d 786, 794.) In light of this
relationship, M.C.’s claim that surrogacy arrangements could be
consistent with California public policy and yet violate the United
States and/or California constitutions is illogical.
31
state’s dependency laws, not for the law governing surrogacy
contracts.13
As applied to M.C.’s equal protection argument, the court’s
conclusion means that a child’s right to suitable placement by the
state once born is not at issue. Rather, the issue is the extent of
state control over individuals’ decisions to give birth in the first
place.
The court in Calvert recognized that the decision of the
intended parents led to the birth of the child whose parentage
was at issue. “But for their acted-on intention, the child would
not exist.” (Calvert, supra, 5 Cal.4th at p. 93.) A conclusion that
children born to surrogates must be placed by the state using the
same criteria that apply to adoptions or custody disputes would
certainly affect—and perhaps eliminate—the willingness of
intended parents to have children through surrogacy
arrangements. “[I]t is safe to say that [the surrogate] 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.” (Ibid.)
13 Calvert referred to California’s dependency laws, which
the court explained “are designed to protect all children
irrespective of the manner of birth and conception.” (Calvert,
supra, 5 Cal.4th at p. 93, fn. 10.) Where, as here, an intended
parent resides in another state, different dependency laws would
likely apply, but the principle remains the same. One can
imagine an extreme set of circumstances that might test the
constitutional boundaries of section 7962’s summary procedure,
such as an intended parent with a history of child abuse who
plans to take a child to another country that does not have a
functioning dependency system. Hopefully such a case is
hypothetical only. In any event, it is not the situation here.
32
Thus, for purposes of an equal protection analysis, it is
more appropriate to compare children born to surrogates with
children born in a traditional manner to other parents than it is
to compare children born to surrogates with children placed
through adoption or family courts. Of course, the state does not
regulate who is permitted to give birth. “What a far different
experience life would be if the State undertook to issue children
to people in the same fashion that it now issues driver’s licenses.
What questions, one wonders, would appear on the written test?”
(Harding, supra, 2016 U.S. Dist. LEXIS 73466 at pp. *23–24,
fn. 9, quoting J.R. v. Utah (D. Utah 2002) 261 F. Supp. 2d 1268,
1298, fn. 29.)
Thus, M.C.’s equal protection argument on behalf of the
Children does not provide any ground for reversal.
e. Alleged violation of M.C.’s constitutional rights
M.C. argues that the trial court’s order terminating her
claimed parental rights violated her substantive due process and
equal protection rights in several respects. Her arguments can
be grouped into two categories for purposes of discussion. First,
she claims that she has a constitutionally protected liberty
interest in a relationship with the Children that she could not
waive before their birth. She argues that permitting such a
prebirth waiver would also violate her equal protection right to
be treated similarly to mothers who surrender their children
through adoption. Second, she argues that surrogacy
arrangements are impermissibly exploitative and dehumanizing.
Again, we conclude that these arguments are foreclosed by
Calvert.
M.C. argues that Calvert did not hold that a surrogate can
never have a liberty interest in a relationship with the child that
33
she bears. She correctly points out that the court’s analysis in
that case was colored by the need to weigh the surrogate’s
interests against the interests of the genetic mother, and that
such balancing is not necessary here. (See Calvert, supra,
5 Cal.4th at p. 100 [the surrogate “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 [the intended parents]”].)
We need not determine the scope of the court’s ruling on
this issue, because the opinion otherwise makes clear that a
surrogate can permissibly contract to surrender whatever
parental rights she has. The court held that the surrogacy
contract in that case was consistent with public policy.14 The
court rejected the argument that “a woman cannot knowingly and
intelligently agree to gestate and deliver a baby for intending
parents” as antiquated and dismissive of a woman’s “equal
economic rights.” (Calvert, supra, 5 Cal.4th at p. 97.) Here, as in
Calvert, there is no suggestion that M.C., who had children of her
own and had previously served as a surrogate, “lacked the
intellectual wherewithal or life experience necessary to make an
informed decision to enter into the surrogacy contract.” (Ibid.)
14 As discussed ante, we are not persuaded by M.C.’s
assertion that “the public policy considerations raised in [Calvert]
are not applicable to a constitutional challenge.” We do not
believe that our Supreme Court would have held that the
surrogacy contract in Calvert was consistent with public policy if
it believed that the surrogacy arrangement violated a
constitutional right. Of course, the Legislature has also now
expressed its view of the permissibility of surrogacy
arrangements by enacting section 7962.
34
M.C.’s argument that, like mothers giving up children for
adoption, she could not knowingly waive her parental rights until
after she had given birth also fails in light of the Supreme Court’s
holding in Calvert. The court rejected the surrogate’s argument
in that case that the policies underlying California’s adoption
laws were violated by the surrogacy contract because it amounted
to a “prebirth waiver of her parental rights.” (Calvert, supra,
5 Cal.4th at p. 96.) The court concluded that “[g]estational
surrogacy differs in crucial respects from adoption and so is not
subject to the adoption statutes.” (Ibid.)
Finally, the court in Calvert expressly rejected the
argument that surrogacy contracts violate public policy because
they “tend to exploit or dehumanize women.” (Calvert, supra,
5 Cal.4th at p. 97.) In particular, the court found that,
“[a]lthough 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.” (Ibid.) More generally, “[t]he limited
data available seem to reflect an absence of significant adverse
effects of surrogacy on all participants.” (Ibid.)
We therefore conclude that that the Agreement did not
violate the constitutional rights of M.C. or the Children. The
trial court’s ruling was consistent with the requirements of
section 7962 and the court’s decision in Calvert. M.C. has
presented no ground to reverse the trial court’s ruling.
35
DISPOSITION
The trial court’s February 9, 2016 judgment is affirmed.
Plaintiff and Respondent C.M. (Father) is entitled to recover his
costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, J.
We concur:
CHANEY, Acting P. J.
JOHNSON, J.
36