What are the facts?
Crispina and Mark Calvert, a married couple, wished to have a child but Crispina could not carry a pregnancy to term. Using Crispina's ova and Mark's sperm, embryos were created through in vitro fertilization and transferred to Anna Johnson, who agreed by written contract to serve as a gestational surrogate. The surrogacy agreement specified compensation to Johnson (a base fee plus medical and related expenses) and provided that the Calverts would be the child's legal parents; Johnson acknowledged she had no genetic tie to the child and agreed to relinquish any parental claims. During the pregnancy, relations deteriorated. Johnson threatened to assert parental rights and to keep the child if financial disputes were not resolved, and she filed an action seeking to be declared the child's mother and to obtain support from Mark. The Calverts countered with an action for declaratory relief to establish themselves as the child's legal parents. After the child was born healthy, genetic testing confirmed that Mark was the genetic father and that Crispina was the genetic mother; Johnson had no genetic relationship to the child. The trial court declared Crispina and Mark the child's legal parents and denied Johnson any parental rights; the Court of Appeal affirmed. Johnson sought review in the California Supreme Court.
What is the legal issue?
When a child is conceived through gestational surrogacy using the intended mother's ovum and the intended father's sperm, is the child's natural mother the gestational carrier who gives birth or the genetic/intended mother who supplied the ovum, and is the gestational surrogacy agreement enforceable under California law?
What rule applies?
Under California's Uniform Parentage Act, maternity may be established by birth or by genetic consanguinity. Where genetic and gestational motherhood reside in different women, the natural mother is the woman who intended to procreate the child—that is, the woman who intended to bring about the birth of a child she intended to raise as her own. Gestational surrogacy agreements that reflect this intent are not per se void as against public policy or the adoption/baby-selling statutes when they compensate the surrogate for gestational services and expenses rather than for surrendering a child.
What did the court hold?
The California Supreme Court affirmed, holding that Crispina Calvert—the genetic and intended mother—is the child's natural mother, and that the surrogacy agreement is not contrary to public policy. Accordingly, Crispina and Mark Calvert are the child's legal parents, and Anna Johnson, the gestational surrogate, has no parental rights.
What is the reasoning?
Statutory framework and the gap: The court began with the Uniform Parentage Act as enacted in California. The UPA allows courts to determine parentage and recognizes that, ordinarily, a child's natural mother is the woman who gives birth. It also recognizes parentage based on genetics. In gestational surrogacy, however, those indicia diverge: one woman bears the child while another supplies the ovum. The statute did not expressly dictate which woman prevails when birth and genetics point to different candidates for maternity. Intent-based tiebreaker: To resolve the statutory silence, the court adopted a principle keyed to preconception intent. It reasoned that procreative intent is a coherent means of harmonizing the UPA in the assisted reproduction context: the parties who caused the child to come into being by arranging and contributing the genetic material with the settled purpose of raising the child are the child's natural parents. Applying that principle, the Calverts manifested clear, preconception intent to have a child genetically related to them and to rear the child; Johnson intended to provide gestational services and expressly disclaimed parental status. Genetics and intent thus aligned in favor of Crispina as mother and Mark as father. Public policy and statutory concerns: Johnson argued the contract was void as baby-selling and violative of adoption policies. The court rejected these arguments, distinguishing compensated gestational services from the sale of a child. Because the intended mother is the genetic mother, no adoption was required; and the compensation was for pregnancy-related services and expenses, not a payment for consent to an adoption or for transfer of parental rights by a legal parent. The court further noted that nothing in California law categorically forbade gestational surrogacy or such agreements and that enforcing the parties' preconception allocation of parental status advanced predictability and the child's best interests. Constitutional claims: Johnson contended that denying her parental status violated due process and equal protection by infringing her fundamental right to parent as the birth mother. The court concluded that because she was not the child's legal mother under the governing rule, she had no fundamental liberty interest in parental status to vindicate. Conversely, recognizing the Calverts as parents comported with their procreative liberties and the contractual arrangement freely entered before conception. The decision also emphasized the narrowness of its holding to gestational surrogacy cases where the intended mother is also the genetic mother, leaving broader policy choices to the Legislature. Child's best interests: Although the court resolved parentage as a matter of law rather than through a general best-interests custody determination, it observed that clarity in parentage at or before birth serves the child's welfare by providing immediate, stable parental relationships with the persons who intended and are prepared to assume enduring parental responsibilities.
Why is this case significant?
Johnson v. Calvert is a cornerstone of assisted reproduction law. It established in California the intent-based test for resolving competing maternity claims when genetics and gestation diverge and validated the enforceability of gestational surrogacy agreements. The case influences later California decisions—including those extending intent principles even when no intended parent has a genetic tie—and informed legislative frameworks governing surrogacy. For law students, it illustrates statutory interpretation in novel technological contexts, the interaction between contract and family law, and how courts balance public policy, constitutional claims, and child welfare in emerging family-formation practices.
How did the court choose between the genetic mother and the birth (gestational) mother?
The court adopted an intent-based tiebreaker: when genetics and gestation point to different women, the natural mother is the woman who intended, before conception, to procreate the child and to raise the child as her own. Because the Calverts initiated conception using Crispina's ovum and intended to parent, while Johnson intended only to provide gestational services and disclaimed parental rights, the court deemed Crispina the legal mother.
Did the court consider the surrogacy contract to be illegal baby-selling?
No. The court distinguished payment for gestational services from the sale of a child. Because the intended mother was also the genetic mother, no adoption was involved, and the compensation was tied to pregnancy-related services and expenses. Thus, the agreement did not violate adoption or baby-selling prohibitions and was not per se void as against public policy.
Would the outcome differ in a traditional surrogacy where the surrogate is the genetic mother?
Potentially, yes. Johnson v. Calvert involved gestational surrogacy with no genetic tie between the surrogate and child. In traditional surrogacy, the surrogate is both genetic and birth mother, raising different statutory presumptions and public policy concerns. Some jurisdictions, such as New Jersey in the Baby M case, have invalidated traditional surrogacy contracts. California courts later continued to emphasize intent, but the analysis is more complex when the surrogate has a genetic link.
How did Johnson v. Calvert influence later California cases on assisted reproduction?
It laid the groundwork for an intent-centered framework. Later cases, such as In re Marriage of Buzzanca (Cal. Ct. App. 1998), extended the principle by recognizing intended parents as legal parents even when neither intended parent had a genetic tie to the child, so long as they initiated and intended the conception through assisted reproduction. The Legislature subsequently enacted statutes regulating gestational carrier agreements, reflecting and refining this jurisprudence.
What constitutional arguments did the gestational surrogate raise, and why did they fail?
Johnson argued that denying her parental rights violated her due process and equal protection rights as a birth mother. The court held that because she was not the legal mother under California's parentage law as interpreted (genetics plus intent), she had no protected parental liberty interest in this context. Recognizing the Calverts as parents also aligned with their procreative rights and the parties' preconception agreement, and there was no impermissible discrimination.