Nancy B. v. Charlotte M.

—I concur in the opinion and the judgment because I believe that this result is the most rational outcome attainable given the existent position of the parties. While the legal theories that are used to reach this result are consistent with current California law, I am not satisfied that our legal tools are the best that can be designed for handling this evermore prevalent social practice. In particular the use of contract theory in this area is awkward and clumsy. Children are not commodities and should not have their fates decided on the basis of commercial contract theory.

Further I wish to distance myself from any implication that the result in this case is an implicit approval of the procedures that resulted in the birth of Matthew. For my part I would have no hesitancy in finding surrogate parent contracts illegal under current California law were we required to reach that issue. Recent legislative activity indicates that soon a court may have to determine whether a yet to be enacted statute is constitutional. This opinion explicitly and wisely does not reach these troublesome issues. In this area *1275 good rhetoric comes easier than wise policy. Our opinion shuns the…

—In this first surrogate parenting case to reach a California appellate court, we begin to grapple with the conflicting human and public *1251 policy concerns that surround the ongoing debate about surrogacy. The primary casualty of this conflict is a child caught in the cross fire between his birth mother, on the one side, and his father and adopting mother on the other. The best interests of this young child must be our paramount concern.

In 1984, appellant Nancy B. learned from a newspaper article that respondents Timothy and Charlotte M., who were unable to have a child of their own, were interested in a surrogate parenting arrangement. Nancy later agreed to be a surrogate mother for the M.’s. 1 On September 1, 1986, some nine months after being artificially inseminated with Timothy’s sperm, Nancy gave birth to Matthew. Three days later, Nancy gave custody of Matthew to the M.’s, with whom he has lived ever since. Timothy obtained a stipulated judgment of paternity. Charlotte petitioned to adopt Matthew. In support of her petition, she filed a consent to adoption Nancy signed in November 1986. Almost eight months after signing the consent, Nancy petitioned to…

John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Charlton G. Holland, Assistant Attorney General, Stephanie Wald and Angela Botelho, Deputy Attorneys General, for Minor.

OPINION

CHIN, J.

In this first surrogate parenting case to reach a California appellate court, we begin to grapple with the conflicting human and public policy concerns that surround the ongoing debate about surrogacy. The primary casualty of this conflict is a child caught in the cross fire between his birth mother, on the one side, and his father and adopting mother on the other. The best interests of this young child must be our paramount concern.

In 1984, appellant Nancy B. learned from a newspaper article that respondents Timothy and Charlotte M., who were unable to have a child of their own, were interested in a surrogate parenting arrangement. Nancy later agreed to be a surrogate mother for the M.'s. [1] On September 1, 1986, some nine months after being artificially inseminated with Timothy's sperm, Nancy gave birth to Matthew. Three days later, Nancy gave custody of Matthew to the M.'s, with whom he has lived ever since. Timothy obtained a stipulated judgment of paternity. Charlotte…