30 Cal. Rptr. 2d 893 (Cal. App. 1994)
In February 1989 Robert and Cynthia Moschetta met with a surrogacy broker in Los Angeles who introduced them to Elvira Jordan.1 In late June and early July 1989 the Moschettas and Jordan signed an agreement under which Jordan would be artificially inseminated with Robert Moschetta's semen, Robert would obtain sole custody of any resulting child, Jordan would terminate her parental rights and assist Cynthia in adopting the child, and the Moschettas would pay Jordan $10,000.2
Jordan became pregnant in November 1989.3 By January 1990 the Moschettas' marriage was troubled, and in April Robert told Cynthia he wanted a divorce.4 Jordan learned of the problems on May 27 while in labor and delivered baby Marissa the next day.5 After initially refusing Robert access to the infant for two days, Jordan allowed the Moschettas to take Marissa home on May 31 after they promised to remain together.6
The marriage continued to deteriorate.7 On November 30, 1990 Robert left the residence with Marissa.8 Cynthia filed a petition for legal separation and a petition to establish custody of Marissa on December 21, 1990, followed on January 11, 1991 by a petition alleging she was Marissa's de facto mother.9 In February Jordan sought to join the dissolution action.10 The actions were consolidated and ordered trifurcated for trial, which commenced April 1991.11
At trial no party sought enforcement of the surrogacy contract and all agreed it was unenforceable.12 The December 1992 judgment declared Robert Moschetta and Elvira Jordan the legal parents of Marissa and awarded them joint legal and physical custody.13 Robert appealed, challenging Jordan's status as legal mother and the custody order, and now contends the contract should be enforced.14
Whether Cynthia Moschetta is Marissa's legal mother under the Uniform Parentage Act?15
No. The trial court ordered blood tests on its own motion and established that Elvira Jordan is Marissa's genetic mother.20 Cynthia Moschetta is sterile.21 The cohabitation presumption therefore does not apply by its own terms.22 There is no doubt as to the identity of the natural mother because genetics and birth coincide in Jordan.23 The statutory presumptions rooted in illegitimacy therefore have no application.24
Cynthia Moschetta is not Marissa's legal mother under the Uniform Parentage Act.25
Whether the traditional surrogacy contract may be enforced to establish parentage?26
Traditional surrogacy contracts are not enforceable to establish parentage.27 They are incompatible with the parentage statutes.28 The adoption statutes require formal consent by the birth mother.29 Unlike gestational surrogacy contracts, they may not be used to ascertain intent under Johnson v. Calvert.30
No. Parentage is resolved under the Act in favor of Jordan because she is both the genetic mother and the birth mother.31 The two usual means of showing maternity coincide in one woman.32 There was no formal consent to adoption under Family Code section 8814.33 Enforcement of the contract would ignore the analysis employed by the Supreme Court in Johnson v. Calvert and the adoption statute requiring formal consent.34
The traditional surrogacy contract may not be enforced to establish parentage.35
Whether the trial court abused its discretion in awarding joint legal and physical custody to Robert Moschetta and Elvira Jordan?36
Yes. The trial court considered Robert's legal and personal position that Elvira Jordan was not Marissa's true mother.39 The court also considered the circumstances surrounding the very surrogacy controversy itself in which the parties were embroiled.40 These factors were improper.41 Robert was within his rights to advocate the position that he was Marissa's only legal parent on a question of first impression.42 The court assumed Jordan's claim to motherhood had already been established.43
The trial court abused its discretion in awarding joint legal and physical custody to Robert Moschetta and Elvira Jordan.44