Surrogate Mother Is Like a Foster Parent, Calverts' Attorneys Say : Surrogation dispute: The lawyers make that argument and others in an appellate court brief defending the couple's claim to custody of the child borne for them by Anna M. Johnson.

By SONNI EFRON

April 30, 1991 12 AM PT

TIMES STAFF WRITER

SANTA ANA — As the Anna L. Johnson surrogate motherhood dispute heads for the 4th District Court of Appeal, the couple who hired Johnson for $10,000 say the surrogate should be treated as no more than a foster parent who cared for their embryo while they were unable to do so.

In legal briefs filed Friday, attorneys for Crispina and Mark Calvert argue that Johnson, who carried a child created from their egg and sperm, should be considered the legal equivalent of a foster mother.

“Assume . . . that for nine months a nurse tended to the child’s needs . . . ,” the lawyers wrote. “When it became time to take the child home, (could she) refuse to release the child on the basis that she had become attached to the child?”

Johnson’s attorneys have argued that a woman who gives birth must be considered the legal mother regardless of the genetic makeup of the baby. To do otherwise, they said, would be to treat gestational surrogates as no more than human incubators or “breeding machines” for wealthy infertile couples.

The appeals court verdict, expected in the summer, will be the first higher-court decision on the status of surrogate parenting contracts in California.

Johnson’s bid to keep a baby who was not genetically related to her drew international attention as it called into question the basic definition of motherhood.

Last October, Orange County Superior Court Judge Richard N. Parslow Jr. found that the surrogation contract Johnson and the Calverts signed was enforceable and that Johnson had no genetic link to the child. He ruled that Johnson had no parental rights to the baby boy born Sept. 19, and he gave sole custody to the Calverts.

The trial was acrimonious, with Johnson accusing the Calverts of exploiting her and the Calverts accusing her of seeking publicity while trying to extort them in return for their child.

The appeals court case promises to be just as bitter, with the Calverts’ attorneys challenging the truthfulness of the legal briefs Johnson’s attorney filed with the court.

The Calverts’ attorneys, Christian R. Van Deusen and Robert R. Walmsley, also asked the appeals court justices to fine Johnson’s attorney Richard C. Gilbert for turning in a legal brief that they described as being too long, misleading the reader by quoting testimony out of context, and not in compliance with court rules.

Gilbert denied any improprieties. He said that he has made minor changes to the brief he filed in February and insisted that any errors that might exist were unintentional. The court has so far declined to impose fines.

In court documents, the Calverts’ attorneys argue that Parslow’s decision was correct, that surrogation contracts are not unconstitutional, and that the Calverts cannot be accused of violating laws that ban the selling of babies.

“How can the Calverts be guilty of buying their own child?” the attorneys wrote. “Indeed, was it not Anna Johnson who attempted to extort money from the Calverts?”

The Calverts’ attorneys argue that the couple are protected by a constitutional right to privacy in reproductive decisions and that it would be discriminatory to deny them the right to procreate because they cannot produce a child through traditional means.

“To say that consenting adults do not have the right to agree to a procreative process other than coital because the intended parents are physically handicapped is to deny them equal protection under the 14th Amendment,” the attorneys wrote.

Moreover, they note that it is legal for men to be paid for donating semen to a sperm bank, for blood donors to be paid for their serum, and for the doctors and laboratory technicians who perform in vitro fertilizations to be paid to care for an embryo from the time the egg is fertilized until it is ready for implantation in the uterus.

Therefore, they argue, a woman is also entitled to compensation for caring for a fetus in her womb.

“Opposing counsel is asking the court to declare it illegal, in essence, saying to surrogates, ‘You can’t use your body this way,’ ” Walmsley said Monday. “That’s infringing on their rights.”

The Calverts’ attorneys also allege that Johnson demanded payment of $5,000 in return for the baby at a time when she had no intention of turning over the child.

“The evidence is uncontroverted,” they wrote. “Anna Johnson sought to exploit the child for financial gain by extortion.”

Finally, the attorneys object to Gilbert’s calling the Calverts “narcissistic” for wanting a child bearing their genes rather than deciding to adopt.

“That statement not only is obnoxious; indeed, it paints all of mankind as incredibly narcissistic,” they wrote.

“Can those couples that through medical misfortune are unable to procreate be denied the right to be parents?” the attorneys ask. “They cannot.”

In asking the appellate court to overturn the decision, Johnson’s attorney Gilbert wrote, “This case represents one of the clearest examples ever of a trial judge playing God.”

Among other things, Gilbert argued that the surrogate did not understand the contract. “Anna Johnson believed she had the right to change her mind and not relinquish her parental rights,” he wrote.

He argued that state law prohibits a sperm donor from being considered the natural father of a child conceived from his sperm and that such a restriction must also apply to an egg donor such as Crispina Calvert.

Moreover, he noted that study panels in three states--New York, New Jersey and California-- “have all concluded the woman who gives birth should be considered the legal mother, regardless of whether or not the child is genetically related.”