The parental intent test from Johnson v. Calvert is the rule the California Supreme Court adopted in 1993 to decide who counts as a child’s legal mother when a gestational surrogate gives birth to a baby conceived from another woman’s egg: the legal mother is the woman who intended to bring about the birth of a child she intended to raise as her own. The court used that standard to recognize the genetic and intended mother, Crispina Calvert, as the natural mother over Anna Johnson, the surrogate who carried the pregnancy.
The Dispute That Produced the Rule
Mark and Crispina Calvert wanted a child but Crispina had undergone a hysterectomy. The couple could still produce an embryo through in vitro fertilization using their own egg and sperm. Anna Johnson agreed to carry that embryo as a gestational surrogate, with no genetic connection to the resulting child.
On January 15, 1990, the three signed a contract. Johnson would relinquish all parental rights at birth, and the Calverts would pay her $10,000 in installments, with the final payment due six weeks after delivery.1Justia. Johnson v. Calvert (1993) The relationship deteriorated during the pregnancy, Johnson threatened to keep the child, and both sides sued to be declared the legal mother.
Why the Existing Statute Could Not Decide It
California’s version of the Uniform Parentage Act said a parent-child relationship could be shown either by proof of giving birth or through other means recognized under the act, including genetic testing.2California Legislative Information. California Family Code Section 7610 That worked when the woman who gave birth was also the genetic mother. It broke down here.
Crispina had a valid claim through genetics. Johnson had a valid claim through birth. Both routes were recognized by statute, and the statute said nothing about which took priority when they pointed to different women. The court needed a tiebreaker.
What the Intent Test Says
The court held that when genetics and birth do not coincide in the same woman, the legal mother is the one who intended to bring about the birth of a child she intended to raise as her own.1Justia. Johnson v. Calvert (1993) The reasoning rested on causation: the child would not exist but for the efforts of the intended parents, who were the “first cause” or “prime movers” of the entire process.
Applied to the facts, the test produced a clear answer. The Calverts initiated the surrogacy, provided the genetic material, and intended from the start to raise the child. Johnson agreed to carry the pregnancy as a service, with no initial expectation of becoming the child’s parent. Crispina was therefore the natural mother because her acted-on intention brought the child into existence.1Justia. Johnson v. Calvert (1993)
No Two Mothers, and No Extension to Traditional Surrogacy
The court rejected the argument that the child could have two legal mothers. It saw no compelling reason to recognize a multiple-parent arrangement and reasoned that doing so would diminish Crispina’s role when the Calverts had provided the child a stable home.1Justia. Johnson v. Calvert (1993)
The court also limited its holding to gestational surrogacy, where the surrogate has no genetic connection to the child. Traditional surrogacy, in which the surrogate provides her own egg, is a different situation: the surrogate has both a genetic and a birth claim, and she holds parental rights that must be formally terminated. The intent test does not reach those arrangements.
The Contract Was Enforceable
The court also held that the surrogacy contract was enforceable and did not violate public policy. Johnson had argued that compensated surrogacy amounted to baby selling. The court disagreed, characterizing gestational surrogacy as a service arrangement rather than the sale of a child, and finding no exploitation where the surrogate was an informed adult who entered the agreement voluntarily.
Constitutional Arguments the Court Turned Aside
Johnson raised several constitutional objections. She argued that recognizing Crispina as the sole mother violated her due process and privacy rights as a birth mother. The court found the argument circular: those protections apply to natural parents, and the case itself was about whether Johnson qualified as one. Because the intent test identified Crispina as the natural mother, Johnson’s constitutional interests as a gestational carrier were something less than a parent’s.1Justia. Johnson v. Calvert (1993)
The court also dismissed the argument that gestational surrogacy amounted to involuntary servitude under the Thirteenth Amendment, finding no evidence of coercion. It rejected a separate privacy argument raised by the ACLU as amicus, concluding that agreeing to carry a pregnancy for someone else’s genetic child is not the same constitutional act as deciding whether to have a child of one’s own.1Justia. Johnson v. Calvert (1993)
Justice Kennard’s Dissent
Justice Kennard wrote the leading critique of the intent test. She argued that the majority’s reliance on intent was unsupported by any statute and unwise without stronger protections against abuse in surrogacy arrangements.1Justia. Johnson v. Calvert (1993)
Her core objection was that the test devalued the gestational mother’s contribution. Carrying a child for nine months and giving birth, she wrote, is itself an assumption of parental responsibility, not merely a service. The majority, in her view, treated pregnancy as a commercial task when it is a profound biological and emotional experience.
Kennard proposed a different standard: the best interests of the child. Courts would weigh each woman’s ability to nurture the child physically and psychologically, to provide ethical and intellectual guidance, and to offer stability. Intent to procreate would be relevant but not dispositive. She also criticized the contractual framing, writing that children are not personal property whose delivery can be ordered like a truckload of goods.1Justia. Johnson v. Calvert (1993)
How Buzzanca Broadened the Test
Five years later, the California Court of Appeal extended the intent test in In re Marriage of Buzzanca (1998). A married couple had arranged for a surrogate to carry an embryo created entirely from anonymous donors. Neither intended parent shared any DNA with the child. When the couple divorced before the birth, the husband argued he was not the father because he had no genetic connection.
The appellate court rejected that argument. It applied the intent test by analogy to California’s artificial insemination statute, under which a husband who consents to artificial insemination is treated as the legal father regardless of genetics. The same logic reached intended parents who consent to gestational surrogacy with donor gametes. The court read Johnson v. Calvert broadly, treating the intent rule as reaching any situation where a child would not have been born but for the efforts of the intended parents.3Justia Law. In re Marriage of Buzzanca (1998)
Buzzanca closed a gap. Without it, intended parents who used both egg and sperm donors would have had no genetic claim and no birth claim, potentially leaving the child legally parentless. Anchoring parentage in intent rather than biology allowed the framework to handle the full range of assisted reproduction scenarios.
Codification Into California Statute
For nearly two decades, California’s gestational surrogacy rules existed only as case law. The legislature changed that with Assembly Bill 1217, signed on September 23, 2012, and effective January 1, 2013.4California Legislative Information. California Assembly Bill 1217 (2011-2012)5California Legislative Information. California Family Code Section 79606California Legislative Information. California Family Code Section 7962 The statute has been amended several times since, most recently in 2019, but its structure follows the intent-based framework the court built in Johnson v. Calvert.
The result, more than three decades on, is that intended parents in a California gestational surrogacy can enter the arrangement knowing courts will recognize them as the legal parents, and surrogates can participate knowing their role is defined as a service rather than a route to contested custody. That predictability is what the intent test delivered.