Page 1
Court of Appeal:
Man’s Oral Contract With Surrogate Mother Is Enforceable
Under Agreement, Woman Who Gave Birth to Child Is Not a Parent
By a MetNews Staff Writer
An oral contract under which a woman performed as a surrogate mother, agreeing that she would not have the status of a parent, is legally enforceable, the Third District Court of Appeal held on Friday.
Acting Presiding Justice Harry E. Hull Jr. authored the opinion. It affirms a judgment by Sacramento Superior Court Judge Bunmi O. Awoniyi in favor of the father, Jeffrey Gerstein, a single man who is gay.
His sperm was used to conceive a child, denominated in the opinion as “E.” The child was carried by Sarah Ann Miles, a lesbian, who was paid roughly $28,000.
Gerstein performed as sole parent to the child. Then, in May 2021, when E. was seven years old, Miles filed a petition, pursuant to the Uniform Parentage Act (“UPA”), for a determination that she is E’s mother, which Awoniyi denied.
Miles’s Contention
Miles argued in her opening brief on appeal that Family Code §7960, a part of the UPA, is “the statute governing surrogacy agreements” and “requires that all such agreements be in writing.” She continued (with emphasis added by her):
“This section contains a series of definitions, among which is ‘Surrogate.’ Under that section, “ ‘Surrogate’ means a woman who bears and carries a child for another through medically assisted reproduction and pursuant to a written agreement….”
Awoniyi found that the requirement of a written agreement applies only to “gestational surrogacy”—where the woman who carries the child did not provide the egg used in conception—and not to “traditional surrogacy.” That, Miles insisted, “is a misinterpretation of the statute.”
Argument Unpersuasive
Rejecting Miles’s view, Hull wrote:
“The statute defines surrogacy ‘for purposes of this part’ which is Part 7….Part 7, in turn, only contains statutes that govern how nonlawyer surrogacy (and donor) facilitators manage client funds, and the requisite contents of gestational carrier agreements which carry a specified weight in actions to establish a parent child relationship….Likewise, with respect to surrogacy and surrogates, the heading of Part 7 reflects that ‘this part’ contains provisions that govern surrogacy facilitators and assisted reproduction agreements for gestational carriers. Read in this context, the plain language of section 7960 does not require that all surrogacy agreements must be in writing to be enforceable.
“To interpret section 7960 to require all surrogacy agreements to be in writing to be enforceable this court would need to treat the ‘for purposes of this part’ language as surplusage. This we will not do….”
Family Code §7610(a)
Miles also maintained:
“Mother gave birth to the child. Under the Family Code, she has established parentage to the child.”
She quoted Family Code §7610(a) as saying:
“The parent and child relationship may be established as follows:
“(a) Between a child and the natural parent, it may be established by proof of having given birth to the child….”
The appellant added:
“In its ruling, the trial court viewed Mother having given birth as a ‘presumption’ of parentage. But the plain language of this statute does not apply a presumption; it provides that a woman giving birth to her natural child has established parentage to that child.”
Hull responded:
“But the statute says parentage, “may be established by proof of having given birth.” (…italics added.) It does not say parentage, “shall be established if there is proof of having given birth.”
Shortage of Precedents
Hull noted:
“There is a dearth of California case law addressing either (1) the enforceability of traditional surrogacy agreements made with single genetic fathers; or (2) the ability of a surrogate to challenge a traditional surrogacy agreement after the parties have operated under that agreement for many years.”
What case law there is, he determined, does not militate in favor of a reversal. He said:
“Here, before E. was conceived, the parties reached an oral agreement that Miles would act as a surrogate, Miles would not be E.’s mother, and Gerstein would be E.’s sole parent. Their conduct before or after E.’s birth suggests this agreement reflected the parties’ intentions and governed their conduct moving forward. Nothing in case law leads us to conclude, under these facts, that the agreement unlawfully foreclosed Miles’s opportunity to assert her parentage under the UPA, thus rendering the agreement unenforceable after it went unchallenged for seven years.”
Two groups—National Center for Lesbian Rights and Men Having Babies—acted as amici curiae on behalf of Miles. They set forth in their brief:
“[A] genetic birth parent is a legal parent and, as such, has constitutionally protected parental rights. Allowing a court to terminate those rights based on a mere alleged oral agreement, without any meaningful substantive or procedural protections, would violate parents’ state and federal constitutional rights to both substantive and procedural due process.”
Hull said:
“[T]his argument assumes Miles had a fundamental right to parent E. She did not. Moreover, the trial court did not make its decision based on a ‘mere alleged oral agreement.’ It conducted a trial at which Miles had ample opportunity to cross-examine witnesses who testified there was an oral agreement, and the opportunity to present her own evidence of the terms of the agreement or that there simply was no oral surrogacy agreement. Miles had no state or federal constitutional right to be a parent under these circumstances.”
The case is Miles v. Gerstein, 2025 S.O.S. 849.
Copyright 2025, Metropolitan News Company