Jaycee B. v. Superior Court

I. Introduction

The facts of this surrogacy case would seem to be the most extraordinary to date. A married couple sought to have a child by gestational surrogacy. (See generally, Johnson v. Calvert (1993) 5 Cal.4th 84 [ 19 Cal.Rptr.2d 494 , 851 P.2d 776 ].) Gestational surrogacy means that the husband’s sperm is artificially united with the egg of his wife and the resulting embryo is implanted in another woman’s uterus, who then carries the child to term. (See Johnson, supra, 5 Cal. 4th at p. 87 ; see also In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1222 [ 30 Cal.Rptr.2d 893 ].) The child is usually the genetic offspring of the married couple, but not the birth mother. We say “usually” because that is not quite what has been alleged to have happened here.

In this case, pursuant to a written contract between four people—a husband, wife, another woman and her husband—a sperm and an egg from anonymous donors were artificially united and implanted in the uterus of the other woman, with the intention that the offspring would be legally the child of the married couple. Unlike “usual” gestational surrogacy, here the child is not genetically related to the intended…