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In re C.K.G.10/6/2005
by 1992 Cal. Stat. c. 162 (A.B. 2650), § 4 and Ohio Rev. Code Ann. § 3111.02 (West 1992) ("The parent and child relationship between a child and the child's natural mother may be established by proof of her having given birth to the child or pursuant to [other sections of the Ohio Revised Code]."). Consequently, neither California's intent test nor Ohio's genetic test is strictly apposite to our statutory scheme.
Further, both the intent test and the genetic test suffer from inadequacies. For example, in Johnson the California Supreme Court crafted an unnecessarily broad rule which could afford maternal status even to a woman who failed to qualify under either of California's two statutory bases for maternity. See Johnson, 851 P.2d at 783. According to Belsito, the intent formulation of Johnson has "discarded both genetics and birth as the primary means of identifying the natural maternal parent, " Belsito, 644 N.E.2d at 764, and provides for, "in effect, a private adoption process that is readily subject to all the defects and pressures of such a process," id. at 766. In Tennessee, unlicensed and unregulated adoption is statutorily prohibited and subject to criminal penalties. See Tenn. Code Ann. §§ 36-1-108 to -109 (2001).
However, the genetic test of Belsito also has significantly broad implications. In the event that a dispute were to arise between an intended mother who had obtained eggs from a third-party donor and a gestational surrogate in whom the eggs had been implanted, the genetic test would implicitly invalidate any surrogacy agreement. The genetic test could also have practical effects similar to the "adoption-default model" criticized by In re Marriage of Buzzanca, see 72 Cal. Rptr. 2d at 289, in that an intended "mother" who employs techniques for assisted reproduction including egg donation would by default have to submit to government-controlled adoption procedures to attain a secure legal status as "mother." Policy-wise, the requirement of such regulation may or may not be sound.
Consequently, we decline to adopt either the intent test or the genetic test as a general rule for resolving this case. We thus vacate the adoption of the intent test of Johnson by the courts below.
4. Factors for Establishing Legal Maternity
In light of the foregoing analysis, we deem it appropriate to decide this case on particularly narrow grounds. In Davis the primary issue hinged on the constitutional right to avoid procreation, see 842 S.W.2d at 601-02, but in the instant case the issue surrounds the maternity and custody of children who have already been born as the result of techniques for assisted reproduction and egg donation. Children, of course, are not property, and the State's interest in the welfare of children is eminently greater than the State's interest in controlling preembryos. The distinction between Davis and this case thus highlights the complexities involved in determining whether the affirmative attempt to procreate via technological assistance including egg or sperm donation is more closely analogous to procreative autonomy with its corresponding right of privacy or more closely analogous to a private form of adoption and thus more susceptible to governmental regulation in the interest of child welfare. Such a determination-which strikes at the very roots of current social values-is inherently policy-laden and both administratively and fiscally momentous, and its resolution on a broad scale is properly reserved for the legislature.
Therefore, in resolving this case we focus closely on its particular facts. Charles and Cindy, an unmarried couple, wanted to start a family and agreed to rear a child together permanently as
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