In Re Marriage of Moschetta

I. Introduction

This case squarely presents the issue of the enforceability of a “traditional” surrogacy contract—an issue not addressed in California’s first two surrogacy cases, Johnson v. Calvert (1993) 5 Cal.4th 84 [ 19 Cal.Rptr.2d 494 , 851 P.2d 776 ] and Adoption of Matthew B. (1991) 232 Cal.App.3d 1239 [ 284 Cal.Rptr. 18 ]. By “traditional” surrogacy we mean an arrangement where a woman is impregnated with the sperm of a married man with the prior understanding that the resulting child is to be legally the child of the married man and his infertile wife. It is to be contrasted with “gestational” surrogacy, where the sperm of the married man is artificially united with the egg of his wife, and the resulting embryo implanted in another woman’s womb. It is also to be contrasted with cases where a sperm donor asserts parental rights.

Traditional surrogacy is a relatively less expensive substitute for gestational surrogacy. Conception can be accomplished with a needleless syringe or similar device. The resulting offspring, however, is genetically related to the “intended” father and the “««intended” mother.

In traditional surrogacy the so-called “surrogate” mother is…