## Facts

- Crispina Calvert, unable to carry a pregnancy due to a prior hysterectomy but with functioning ovaries, and her husband Mark Calvert pursued gestational surrogacy.
- Anna Johnson agreed in writing to serve as a gestational surrogate for an embryo created from Mark’s sperm and Crispina’s egg.
- The contract provided that the child would be taken into the Calverts’ home as their child, Johnson would relinquish all parental rights, the Calverts would pay Johnson $10,000 in installments, and the Calverts would obtain a $200,000 life insurance policy on Johnson.
- After implantation and confirmation of pregnancy, disputes arose over Johnson’s medical history disclosures, the insurance policy, and support during a premature labor concern.
- Johnson demanded remaining payments and threatened not to relinquish the child if unpaid.
- Before the child’s birth, the Calverts sued for a declaration of parentage; the child was born September 19, 1990.
- Blood tests excluded Johnson as the genetic mother and confirmed the Calverts’ genetic relationship to the child.
- The trial court declared the Calverts the child’s genetic, biological, and natural parents and terminated Johnson’s visitation; the Court of Appeal affirmed.

## Issues

1. Under California law, who is the child’s “natural mother” when genetic maternity and gestation are held by different women?
2. Whether declaring the intended genetic mother the legal mother violates the gestational surrogate’s federal or state constitutional rights.
3. Whether the gestational surrogacy agreement is void as against public policy, including as unlawful “baby-selling.”

## Decision

- The California Supreme Court affirmed the judgment declaring Crispina Calvert the child’s natural mother and Mark Calvert the child’s natural father.
- When genetic and gestational maternity diverge in a gestational surrogacy using the intended parents’ gametes, the “natural mother” is the woman who intended to procreate and to raise the child as her own.
- The court rejected constitutional challenges, concluding the surrogate had no protected liberty interest in raising the child formed contrary to the preconception agreement.
- The court held the agreement was not void as against public policy and did not constitute illegal sale of a child because payment was for gestational services, not for transferring a child from rightful parents.

## Legal Principles

- When statutory and evidentiary routes to maternity (birth and genetics) point to different women, California law recognizes as the “natural mother” the woman who intended to bring about the birth of a child and intended to raise the child as her own.
- A gestational surrogate’s act of carrying and delivering a child, without a genetic tie and in the face of a preconception relinquishment agreement, does not by itself establish legal maternity against the intended genetic mother.
- Determining parentage in this context does not violate due process or equal protection where the surrogate entered the arrangement before conception and lacked an established expectation of parenting consistent with the agreement.
- Compensation to a surrogate for gestation and childbirth services, in a gestational surrogacy using the intended parents’ gametes, is not treated as unlawful consideration for a child absent a statutory prohibition and absent a transfer from the child’s rightful parents.

## Conclusion

The court resolved conflicting claims of maternity in gestational surrogacy by applying an intent-based rule: where a child is conceived with the intended parents’ genetic material and carried by a surrogate, legal motherhood rests with the intended genetic mother who planned to procreate and rear the child, and enforcing the surrogacy agreement neither violates the surrogate’s constitutional rights nor contravenes public policy.


Johnson v. Calvert, 5 Cal. 4th 84 (Cal. 1993)