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Keywords

contractstatutetrialdivorceadoption

contractstatuteappealadoption

Related Cases

In re Marriage of Moschetta, 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893, 63 USLW 2031

Facts

Robert and Cynthia Moschetta wanted to start a family, but Cynthia was sterile. They entered into a surrogacy agreement with Elvira Jordan, who would be artificially inseminated with Robert's sperm. After Jordan became pregnant, the Moschettas faced marital issues, leading to a divorce petition filed by Cynthia. Following the birth of the child, Marissa, disputes arose regarding custody and the enforceability of the surrogacy contract, which all parties agreed was unenforceable at trial.

In February 1989 the Moschettas met with a surrogacy broker in Los Angeles who introduced them to Elvira Jordan. In late June and early July of the same year the Moschettas and Jordan signed an agreement which provided Jordan would be artificially inseminated with Robert Moschetta's semen so as to bear his “biological offspring.”

Issue

The main legal issues were whether the traditional surrogacy contract was enforceable and whether the custody award was based on proper considerations.

Rule

The court ruled that traditional surrogacy contracts are unenforceable and that custody decisions must not consider the parties' positions on legal parentage inappropriately.

We decline to enforce the agreement, not for the public policy reasons sometimes advanced by those who oppose surrogacy, but because enforcement of a traditional surrogacy contract by itself is incompatible with the parentage and adoption statutes already on the books.

Analysis

The court analyzed the enforceability of the traditional surrogacy contract in light of existing parentage and adoption statutes, concluding that enforcing such a contract would conflict with established law. The court also found that the trial judge improperly considered the parties' legal positions regarding parentage when making custody determinations, which should focus solely on the best interests of the child.

Conclusion

The court affirmed the determination that Elvira Jordan is the legal mother of Marissa but reversed the custody award, remanding the case for reevaluation without regard to the parties' prior positions on parentage.

The judgment declaring Elvira Jordan the legal mother of Marissa must therefore be affirmed.

Who won?

Elvira Jordan prevailed in establishing her legal parentage of Marissa, as the court found that the traditional surrogacy contract was unenforceable and that she was the child's genetic and birth mother.

Robert Moschetta has appealed from the judgment, challenging the determination that Elvira Jordan is the legal mother of Marissa.

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