C.M. v. M.C., 7 Cal. App. 5th 1188

Background

In 2015 Father (C.M.) and M.C. (the gestational surrogate) executed a detailed written In Vitro Fertilization Surrogacy Agreement: Father was the sole intended parent; eggs from an anonymous donor and Father’s sperm were used; M.C. was represented by independent counsel and initialed each page; signatures were notarized.
Embryo transfer occurred and M.C. became pregnant with triplets. Before birth Father filed a Family Code §7962 petition to be declared the sole legal parent and to terminate M.C.’s parental rights.
M.C. rescinded cooperation, filed an answer and counterclaim asserting that she is the children’s mother, challenging §7962 as unconstitutional, and alleging Father’s unfitness; she sought custody of at least one child.
At the §7962 hearing Father lodged the Agreement, subpoenaed M.C.’s former attorney to testify regarding independent advice, and elicited testimony and M.C.’s sworn confirmation that she signed and initialed the contract.
The trial court found Father had substantially complied with §7962 and Calvert/Buzzanca; it entered judgment declaring Father sole legal parent and terminating M.C.’s parental rights. M.C. appealed.

Issues

Issue	Plaintiff's Argument (Father)	Defendant's Argument (M.C.)	Held
1) Did Father comply with §7962 to obtain summary parentage and termination of surrogate’s parental rights?	Agreement and procedure substantially comply; lodging agreement and attorney testimony satisfy §7962 requirements.	§7962 requirements not fully satisfied (no sworn attorney declaration from M.C.’s lawyer); surrogate did not truly waive rights.	Held: Substantial compliance met: executed notarized agreement, independent counsel, timing, and attorney testimony satisfied §7962; judgment affirmed.
2) Does §7962 (and the Agreement) defeat the birth-based presumption of motherhood (Fam. Code §7610(a))?	§7962’s scheme and definition of "intended parent" control; the Agreement names Father as intended parent.	Giving birth creates a parenthood presumption that §7962 cannot summarily override.	Held: Whether §7962 formally lists §7610(a) is not dispositive; §7962(f)(2) plainly directs that compliance establishes intended parentage and terminates surrogate’s rights.
3) Procedural due process: Was M.C. denied a meaningful hearing or ability to litigate custody/fitnes s?	Statutory §7962 process was followed; hearing and testimony (including of former counsel) provided; §7962 limits further evidentiary challenges.	§7962 improperly allows termination of parental claims pre-birth without full adversarial proceedings and consideration of best interests.	Held: No due process violation; §7962 contemplates a limited summary determination focused on statutory compliance, not a full custody/fitness hearing.
4) Substantive due process/equal protection: Do surrogacy enforcement or §7962 violate constitutional rights (surrogate’s liberty interest, children’s rights, commodification/equal protection)?	Calvert and legislative codification support enforceability; surrogacy agreements are not contrary to public policy or constitution.	Prebirth waiver of parental rights, commodification, and differential treatment vs. adoption/custody violate constitutional protections.	Held: Constitutional challenges rejected; Calvert controls (surrogacy contracts permissible); §7962 consistent with public policy and constitution; equal protection and commodification arguments fail.

Key Cases Cited

Johnson v. Calvert, 5 Cal.4th 84 (Cal. 1993) (upheld enforceability of surrogacy contract and gave decisive weight to parties’ intent)
In re Marriage of Buzzanca, 61 Cal.App.4th 1410 (Cal. Ct. App. 1998) (applied Calvert reasoning to cases involving donor gametes and declared intended parents based on parties’ intent)
Cook v. Harding, 190 F.Supp.3d 921 (C.D. Cal. 2016) (federal case discussing similar challenges to surrogacy statutes and noting practical consequences of allowing surrogates to unilaterally relitigate parentage)