Over the past few days, a claim with a distinctly “legal” flavor has emerged amid the controversy involving a cryptocurrency billionaire and a female celebrity. According to this version of events, the actress was in the United States preparing to retrieve her eggs. If the billionaire himself did not show up, the argument goes, he could only be treated as a “sperm donor.” Even if a child were eventually born, he would not be the child’s legal father, and the child would have no inheritance rights against him. Some people have gone further and speculated that the actress’s demand for $50 million was really meant to secure protection for herself and a future child.

The explanation sounds complete. Unfortunately, that is not what California law says. This article is not meant to dwell on the gossip itself. It focuses instead on the legal questions involved, especially California’s rules on surrogacy, assisted reproduction, and parentage.

The claim that a father who is not present must be treated as a sperm donor is legally wrong. But it happens to touch on an important question in California’s law of assisted reproduction: why might a child’s “biological father” not be the child’s “legal father”?

To answer that question, we have to return to California and a series of cases that began more than half a century ago.

Once the online claim is taken apart, it becomes clear that it confuses three entirely different things: egg retrieval, sperm donation, and legal parentage.

Egg retrieval is simply a medical procedure. A woman may have her eggs retrieved and frozen, use them to form an embryo with someone’s sperm, or do nothing further with them. The mere act of retrieving eggs does not somehow create a legal father.

Likewise, whether a man is a “sperm donor” does not depend on whether he personally appeared on the day of an egg retrieval. California Family Code section 7613 addresses the issue in detail. For example, when a man provides semen to a physician or licensed sperm bank for assisted reproduction by a woman who is not married to him, he is generally treated as a donor, rather than the child’s legal father.

But the statute immediately provides an exception. If, before conception, the man and the woman sign a written agreement that he is to be a parent, he is not merely a donor in the ordinary sense; he becomes the child’s legal father. Even without a qualifying written document, a court may in some circumstances find, by clear and convincing evidence, that the woman and the man had reached an oral agreement before conception to become the child’s parents.

In other words, California law is really asking what the man was doing when he provided the sperm: was he making a donation, or was he having a child of his own? That is a question of legal intent.

Intended Parents in Surrogacy

If we use the scenario suggested by the online rumor—one person provides the egg, another provides the sperm, and a third woman carries and gives birth to the child—the legal issue is usually one of gestational surrogacy.

It is important to distinguish two concepts. California law recognizes two forms of surrogacy:

  • Traditional surrogacy: the surrogate both carries the pregnancy and provides her own egg, so she has a genetic relationship with the child;
  • Gestational surrogacy: the gestational carrier carries and gives birth to the child but has no genetic relationship to the embryo. This is the more common form in modern commercial surrogacy.

California law creates a particularly important status within this framework: the intended parent. Family Code section 7960 defines an intended parent as an individual, whether married or unmarried, who manifests an intent to be legally bound as the parent of a child resulting from assisted reproduction. The focus is on intent—whether the person is willing to take responsibility for the child—not simply on whether that person provided genetic material.

This marks one of the most important conceptual shifts in California’s surrogacy law. In natural reproduction, the biological parents are usually easy to identify: the woman who gives birth is the mother, and the man who provides the sperm is the father. Assisted reproductive technology, however, can involve five different roles: the person who provides the egg, the person who provides the sperm, the person who carries the pregnancy, the person who plans to raise the child, and the person who ultimately assumes parental responsibility in law. The original simplicity of parentage therefore breaks down, and the law has to answer a seemingly strange question: which relationship is sufficient to create the status of “parent”?

California courts confronted this question seriously before in vitro fertilization and commercial surrogacy became widespread.

In 1968, the California Supreme Court decided People v. Sorensen. Sorensen was infertile, but he agreed that his wife could undergo artificial insemination using another man’s sperm. After the child was born, the couple lived together for several years. When the marriage later broke down, Sorensen argued that the child was not his and that he had no duty to pay support. The case may seem straightforward today, but in 1968 it presented a new problem.

The California Supreme Court held that Sorensen was still the child’s legal father. He knew that his wife would use another man’s sperm, consented to the reproductive process, and had intended from the beginning that the child would become part of their family. In the context of assisted reproduction, therefore, fatherhood is not tied strictly to genetic connection.

The decision became an important foundation for California’s law of parentage in assisted reproduction. But it also led to a harder question. If a person can be a father without a genetic link, must the woman who carries and gives birth to the child always be the mother?

Johnson v. Calvert (1993) was the real turning point in California’s law of surrogacy. The Calverts wanted a child, but Crispina Calvert had undergone a hysterectomy and could not carry a pregnancy, although her ovaries could still produce eggs. Doctors therefore used her egg and her husband’s sperm to create an embryo, which they implanted in another woman, Anna Johnson. Crispina was the child’s genetic mother, while Anna was the gestational mother, who carried the pregnancy for ten months and gave birth. When the relationship between the parties broke down, the question of who was the child’s true mother reached the California Supreme Court for the first time.

The California Supreme Court adopted a standard that would have lasting influence. When the genetic mother and the gestational mother are different people, the court should ask who originally intended to bring about the child’s birth and raise the child as her own. This is the principle of procreative intent. The court ultimately held that the Calverts were the child’s legal parents.

That step was critical. From this point onward, parenthood was no longer simply a natural status automatically determined by genetic connection or the fact of giving birth. It became a legal status that also incorporates expressed intent and legal responsibility.

“Procreative Intent” Is Not All-Powerful

If the story ended there, it would be easy to draw an overly simple conclusion: in assisted reproduction, once the parties agree in advance who the parents will be, a court can simply enforce the agreement. The reality is more complicated.

Just one year later, In re Marriage of Moschetta (1994) drew an important boundary around Johnson. The parties in that case used what we earlier called traditional surrogacy: the surrogate not only carried the pregnancy but also provided her own egg. She was therefore both the child’s genetic mother and the woman who gave birth. After the child was born, she changed her mind and refused to surrender her entire maternal status.

The intended parents argued that Johnson required the court to follow the parties’ original procreative intent. The California Court of Appeal rejected that argument. Johnson had not declared that every surrogacy contract was automatically valid. In Johnson, intent was needed because the genetic mother and the gestational mother each had a basis for claiming motherhood, and the law had to choose between them. In Moschetta, however, those two statuses were concentrated in the same woman. There were not two equally situated mothers from whom the court had to choose. The court therefore held that the surrogate was the legal mother and that a traditional surrogacy contract alone could not extinguish her parent-child relationship.

This helps explain why many countries still hesitate to legalize surrogacy: surrogacy can make an otherwise simple family relationship extremely complex, disrupting traditional ideas of family and parentage. Even within California, traditional and gestational surrogacy have presented fundamentally different legal risks from the beginning.

The case that pushed the principle of procreative intent furthest was In re Marriage of Buzzanca (1998).

The facts were extraordinary. The Buzzancas decided to have a child through assisted reproduction, but neither the husband’s sperm nor the wife’s egg was used, and a third woman carried and gave birth to the child. The intended couple had no genetic relationship with the child, and neither did the gestational surrogate. To make matters worse, the Buzzancas separated before the child was born. The husband then argued that he was not the biological father and had no duty to support the child.

The trial court initially reached a startling conclusion: the child had no legal parents. The California Court of Appeal quickly reversed. The child had come into the world because the Buzzancas had jointly initiated and agreed to the entire assisted-reproduction process. If a person could actively bring about a child’s birth and then withdraw from parenthood simply because there was no genetic link, the child would be the only victim of the arrangement. The court therefore held that both members of the couple were the child’s legal parents.

By this point, California law had undergone a profound shift. The basis of parenthood had moved away from biological facts alone and toward a combination of procreative intent, prior consent, and the legal responsibility that follows from them.

From Case Law to Legislation

Building on these cases, California enacted AB 1217 in 2012. The law turned decades of case law into a more procedural framework and established a dedicated system for gestational surrogacy in Family Code section 7962.

Under the statute, a valid gestational-surrogacy agreement must state, among other things:

  • who provided the gametes (and, if donated sperm, eggs, or embryos were used, what kind of donation was involved);
  • who the intended parent or parents are;
  • how the medical expenses of the gestational carrier and the newborn will be covered.

Before signing the agreement, the gestational carrier and the intended parent or parents must each have separate, independent counsel. One lawyer cannot represent both sides. The agreement must also be formally executed, with the signatures notarized or witnessed through an equivalent procedure. Once these requirements have been satisfied, the parties may ask a court to establish parentage before the child is born. The court may then determine that the intended parent or parents named in the agreement are the child’s legal parents and that the gestational carrier and her spouse or partner are not the child’s legal parents.

The 2017 decision in C.M. v. M.C. further confirmed this framework. A man used his own sperm and anonymously donated eggs to create embryos, which a gestational carrier carried. After becoming pregnant, the carrier changed her mind and sought parental rights. The court nevertheless held that, when the statutory procedures in section 7962 have been satisfied, the man named in the agreement is the child’s sole legal father and the gestational carrier has no parental rights. The Court of Appeal affirmed.

From Johnson to C.M., California law spent more than two decades doing the same basic thing: moving the question of “who are the parents?” from after the child’s birth to before it. The aim was to clarify responsibility while the child was still unborn and reduce disputes that could affect the child’s development.

Epilogue

The online rumor looks very different in light of this framework. California’s current law of gestational surrogacy is a detailed system. It requires a written agreement and focuses on the parties’ intentions before conception; it also requires independent counsel, notarization or witnessing, and even permits a parentage judgment before the child is born. The legal question is therefore far more complicated than the rumor suggests.

The real value of the celebrity surrogacy controversy is that it gives ordinary people who know little about these new legal relationships a glimpse into how a developed legal system has approached them. For most of human history, identifying a child’s parents was not especially difficult. Genetic connection, pregnancy, birth, caregiving, and inheritance usually centered on the same two people. Assisted reproductive technology has made that question much more complex.

When the person who provides the sperm may not be the father, the person who provides the egg may not be the mother, the woman who carries and gives birth may not be the mother, and someone who provided neither sperm nor egg and never carried the pregnancy may still become a legal parent, the law must answer a question that barely existed before: is parenthood a biological fact, or a legal relationship?

From Sorensen in 1968, through Johnson in 1993, to Family Code section 7962 today, California has taken more than half a century to formulate its answer. Genetic connection and the fact of giving birth remain important. But in modern assisted reproduction, a third element has entered the definition of parenthood: the intention and responsibility that bring a child into the world.

Primary Legal Materials

People v. Sorensen, 68 Cal.2d 280 (1968)

Johnson v. Calvert, 5 Cal.4th 84 (1993)

In re Marriage of Moschetta, 25 Cal.App.4th 1218 (1994)

In re Marriage of Buzzanca, 61 Cal.App.4th 1410 (1998)

K.M. v. E.G., 37 Cal.4th 130 (2005)

C.M. v. M.C., 7 Cal.App.5th 1188 (2017)

California Family Code §§ 7606, 7613, 7960–7962

California Probate Code §§ 6450, 6453

Note: This article discusses assisted reproduction and parentage under the law of California, United States. It does not address how Chinese law evaluates surrogacy itself, and it does not mean that a parentage judgment issued in California will automatically be recognized in another jurisdiction.