Surrogate Case: A Good Ruling : State high court upholds genetic parents

The state Supreme Court made the correct ruling in the closely watched Orange County surrogate parent case, and in the process dramatized the need for legislative guidance on a complex, emotionally charged issue.

The court ruled 6 to 1 that Mark and Crispina Calvert of Tustin are the parents of a boy born nearly three years ago. In the absence of a state law, it fell to the court to set a new legal standard. The court proclaimed surrogate mother contracts legal and the pact between Anna Johnson and the Calverts valid.

The case began when an egg from Crispina Calvert, who is unable to bear children, was fertilized with her husband’s sperm. Johnson agreed to carry the resulting embryo to term in exchange for $10,000. But Johnson later claimed she had bonded with the fetus while pregnant, and demanded shared custody.

The case raised a number of difficult questions. Among them: Are those who pay a surrogate in effect exploiting a woman by “renting” her womb? Does a woman have the right to use her body however she pleases, including to bear a child for another?

The Orange County judge who originally awarded full custody to the Calverts wisely emphasized the child’s welfare. He said Johnson was a genetic stranger to the boy and that granting her “third parent” status would confuse him. The Supreme Court appeared to shift the emphasis to the pact between Johnson and the Calverts and stressed the intentions of those involved. The court said Crispina Calvert intended to bring about her child’s birth and rear him as her own, thus Johnson had no maternal rights.

A strong dissent by the high court’s only woman, Justice Joyce L. Kennard, argued that a surrogate mother is “more than a mere container. . . . “ She said the child’s welfare should be primary and the surrogate’s role acknowledged. Justice Armand Arabian agreed with the court decision but argued against the broad acceptance of contracts in these matters. Both Kennard and Arabian looked to the Legislature for more clarity in surrogate matters. That’s surely reasonable.

Another reason legislative guidance is needed is that conflicts may arise in far more complex surrogacy cases--such as when the surrogate donates the egg and womb, or when women carry their grandchildren to term for their daughters or sons.

Some states bar surrogacy; some allow it; some have special restrictions. Gov. Pete Wilson vetoed a surrogacy bill last fall, citing a lack of disputed cases. It is clear the Legislature faces a tough job, but there already have been too many delays on this issue. There may not yet be many surrogacy cases, but the few so far have caused profound pain and suffering. It’s time for guidance from the Legislature.