State High Court to Rule in O.C. Surrogacy Case : Law: Justices to hear pioneering legal test in which a woman with no genetic links seeks parental rights.

SAN FRANCISCO —  In the first case of its kind in the nation, the state Supreme Court agreed Thursday to decide whether parental rights can be granted to a woman with no genetic link to a test-tube baby she bore for a childless couple.

The justices, in a brief order, set aside for now a state appeal court ruling rejecting legal claims by Anna M. Johnson to a child created from the sperm and egg of Mark and Crispina Calvert of Tustin.

Johnson agreed to bear the child for $10,000, but a dispute arose and both sides sought rights to the baby. The appeals court held last October that because Johnson is not biologically related to the child, she cannot be declared the natural or legal mother.

Johnson’s attorney Richard Gilbert of Orange said Johnson was “walking on cloud nine” when she heard the news. “It’s her first big victory. She’s thrilled.”

The Calverts’ attorney, Robert Walmsley of Santa Ana, said he had informed the couple of the high court’s decision to take up the case. While they were not shocked by the turn of events, he said they are “disappointed, very disappointed. . . . They would like to bury this case and get on with their lives.”

Walmsley said the court’s decision to consider the case should not affect the Calverts’ custody of the child, Christopher Michael, now 2, at this time.

Gilbert said Johnson wants the baby to stay with the Calverts until the case is concluded. “The Calverts should breathe a sigh of relief.” Johnson does, however, want to visit the boy, something he said the Calverts have consistently refused.

The baby’s court-appointed guardian, William Steiner of Orange, said he was disappointed by the high court’s action.

“It’s just another legal obstacle for this baby having some sense of permanency,” said Steiner, who attended the boy’s first birthday party last September. “He is thriving in that home.”

The Anna Johnson case emerged as the first court test in the country over whether parental rights exist for a surrogate mother with no genetic connection to the child. It also marks the first time the California high court has reviewed any case involving surrogate birth.

Other disputes have involved surrogates who are also the genetic mothers. In one noted case, the New Jersey Supreme Court, ruling in the Baby M dispute, held in 1988 that surrogate contracts are illegal and that a woman who has been artificially inseminated is not entitled to custody of the child.

Gilbert said it was possible that the high court would expand its review to determine the legality of surrogate contracts in themselves. The justices set no date for hearing the case. Meanwhile, legislation that would allow surrogacy under certain conditions is pending before the Legislature.

Walmsley said the high court’s decision to review the case could reflect the increasing significance of the surrogacy issue--and did not indicate that the justices were prepared to rule in favor of Johnson.

A spokesman for a group opposing surrogacy agreements voiced hope that the state high court would grant legal recognition to “birth mothers” such as Johnson.

“The Anna Johnson case is perhaps the most significant surrogacy case yet,” said Andrew Kimbrell, policy director and counsel for the National Coalition Against Surrogacy in Washington, D.C. The lower court rulings against Johnson represented “the first time in Western legal history that anyone has said the birth mother is not a mother at all. . . .

“I don’t think any of us can allow motherhood to be redefined to take the rights away from the birth mother,” said Kimbrell, who is serving as a consultant for Anna Johnson.

The American Civil Liberties Union of Southern California will file a friend-of-the-court brief challenging the trial and appellate rulings, said Jon Davidson, senior staff council.

“We believe that the Court of Appeal erred when it decided that a woman who carries a child to term has absolutely no rights with respect to that child, and that only genetics are significant when it comes to deciding issues of what is best for the child.

“It is our position that all individuals who were responsible for bringing a child into being should have both rights and responsibilities with respect to that child. The genetic parents and the woman who gives birth to the child all contribute in significant ways.”

The Calverts and Johnson in January, 1990, signed a contract calling for Johnson to give birth to a child in return for $10,000, paid in installments. The contract provided that the baby would be given to the Calverts “as their child” and that Johnson would relinquish “all parental rights.”

But after an embryo from the sperm and egg were implanted, a disagreement arose over contract terms and Johnson sent the Calverts a letter demanding full payment immediately or else she would refuse to give up the child. Both sides filed lawsuits to establish rights to the child. The child, a boy named Christopher Michael, was born in September, 1990.

After a heavily publicized trial, Superior Court Judge Richard N. Parslow Jr. held that Johnson, by law, is not the mother, and that even if she were, she had given up her parental rights under the surrogacy contract.

The Court of Appeal declined to rule on the contract but found that under the state Uniform Parentage Act, Johnson could not be given parental rights because genetic blood tests showed she was not the natural mother. The appeals court conceded that it was acting in “unchartered territory” and urged the Legislature to take action on the issue “so that both parents and children can face the future with certainty over their legal status.”

Attorneys for Johnson appealed to the state high court, arguing that the appellate court wrongly relied on the blood test to determine parental rights. The ruling, the attorneys said, “says in all its absurdity that a woman who gives birth is not a mother.”

Lawyers for the Calverts replied that Johnson, in effect, was proposing a “three-parent family” for the child, which would represent “an intrusion of an outsider into the integrity of the family unit.”

Walmsley said the Calverts feel that what should be one of life’s happiest times “had been soured” by the dispute, which may take years for a final decision. “Little Christopher will be 4 years old, if they (the justices) take two years as they have in recent cases.”

A second high-profile surrogacy case hit Orange County courts soon after the original Johnson decision was reached. In that case, a surrogate mother Elvira Jordan sued Robert Moschetta of Santa Ana for custody of a baby girl after Moschetta left his wife and took the baby with him.

In the three-way custody battle that developed, an Orange County Superior Court judge ruled Sept. 26 that Moschetta’s wife, Cynthia, who was not genetically related to baby Marissa, had no legal rights to the girl. Jordan, who was impregnated by Moschetta’s sperm by artificial insemination, was ruled the child’s legal mother. But the judge split custody between her and Robert Moschetta, awarding the 16-month-old girl to Jordan on weekdays and to Robert Moschetta the rest of the time. Moschetta has appealed for sole legal and physical custody.

No matter which way the court eventually decides the case of Anna Johnson, it is unlikely to affect the vast majority of surrogates who contract to bear other people’s children, said William Handel, an attorney and director of the Beverly Hills-based Center for Surrogate Parenting, one of the country’s two largest surrogacy agencies which wrote the contract for the Calverts and Johnson.

Of approximately 5,000 women who have signed contracts, only 14 have ever contested the issue, he said.

Staff writers Lynn Smith and Kristina Lindgren in Orange County also contributed to this report.

BACKGROUND

A 6-pound, 10-ounce boy was born into controversy on Sept. 19, 1990, because his birth mother--a surrogate--sued to wrest custody from the Tustin couple who hired her. An Orange County judge awarded the child to the genetic parents. But now, Christopher Michael Calvert, age 16 months, will be the center of debate before the state Supreme Court.

Calvert-Johnson Surrogacy Chronology

October, 1989: While working at Western Medical Center-Santa Ana, Crispina Calvert learns of a nurse, Anna Johnson, who is interested in being a surrogate mother. Subsequent conversations include Crispina’s husband, Mark.

Jan. 15, 1990: Calverts pay an attorney $3,500 to arrange a contract with Johnson. Johnson signs as “surrogate” in the offices of Dr. Ricardo Asch of the Center for Reproductive Health in Orange. The Calverts sign as “natural father” and “natural mother.” The contract calls for Johnson to be paid $2,000 at the end of the first trimester, $2,000 after the second, $1,000 a month before birth, $1,000 a week after, and $4,000 six weeks later.

Jan. 17, 1990: Asch removes six eggs from Crispina Calvert’s ovaries, and they are fertilized in a petri dish. Two days later, three embryos are implanted into Johnson. Two weeks later, blood tests confirm Johnson is pregnant.

March 16, 1990: Johnson requests the first $2,000 payment one month early.

July 23, 1990: Johnson sends the Calverts a letter threatening to keep the baby unless they immediately pay her the rest of her $10,000 fee.

Aug. 6, 1990: Angry with the Calverts over money and accusing them of “fetal neglect,” Johnson goes public with the news she will file suit

Aug. 13 seeking custody and parental rights over the baby. She said she had “bonded” with the fetus.

Sept. 19, 1990: Johnson gives birth to a 6-pound, 10-ounce boy two weeks ahead of schedule.

Sept. 21, 1990: Superior Court Judge Richard N. Parslow Jr. holds interim custody hearing and is prepared to dispatch the baby to a foster home. Johnson instructs her attorney to allow the Calverts to take the baby home with no prejudice to her rights and with daily three-hour visits. A week later the judge later reduces Johnson’s visits to twice a week.

Oct. 9, 1990: A hearing begins in Superior Court to determine legal parents of the baby.

Oct. 22, 1990: Parslow decides in favor of the Calverts, denies Johnson visitation rights and rules that surrogacy contracts are enforceable.

Oct. 8, 1991: 4th District Court of Appeal in Santa Ana upholds Parslow’s ruling, saying Johnson has no legal claim to the baby.

Jan. 23, 1992: California Supreme Court sets aside the ruling by the 4th District Court of Appeal and agrees to hear the case. It is the first surrogacy case in the high court’s history.

Surrogate Players

The state Supreme Court has set aside a lower court ruling in the surrogate motherhood case involving Mark and Crispina Calvert and Anna Johnson, agreeing to take on a surrogacy case for the first time. The original case, a highly emotional custody dispute between the Calverts and Johnson, was decided in favor of the Calverts, the genetic parents. Christopher Michael Calvert

The subject of the case, a 6-pound, 10-ounce boy, was born Sept. 19, 1990, at St. Joseph Hospital in Orange. Nurses at the hospital were sufficiently confused by the case to leave his birth certificate blank for one month. Anna L. Johnson

Toward the end of the pregnancy, the then 29-year-old vocational nurse who had signed a $10,000 contract with the Calverts, said she had become bonded to the baby and decided to seek custody. She sued, saying the Calverts had not paid her on time and had neglected her. Mark and Crispina Calvert

Unable to bear a child on their own because Crispina had undergone a hysterectomy, the couple contracted with Johnson to carry their baby. The Calverts provided the egg and sperm, which were implanted in Johnson in a technique known as in vitro fertilization. Judge Richard N. Parslow Jr.

The Superior Court judge ruled in favor of the Calverts, saying Johnson had no claim to custody. He also ruled surrogate contracts were legal and enforceable.