Ruling Brightens Aspect of Surrogate Parenting : Courts: Judge says it isn’t inherently exploitive for a couple who can’t have children on their own to rent the body of a third person for child-bearing.

In ruling that Anna Johnson has no parental right to the child she bore, an Orange County judge Monday gave a somewhat brighter green light to the still-rare practice of surrogate parenting.

He said, in essence, that it is not inherently exploitive for a couple who cannot have children on their own to rent the body of a third person to make child-bearing possible.

In doing so, he aroused the ire of surrogate parenthood opponents, who say the practice carries with it too much potential for exploitation of poor women serving as human incubators for the well-to-do.

Some legal scholars believe that unless legislatures act to curb the practice, an industry will develop, exploiting Third World women as gestational surrogates for the wealthy, who either cannot carry a child for medical reasons or simply do not want to.

“If the green light is given to gestational surrogacy, that will certainly occur,” said Martha Field, a Harvard Law School expert in surrogate arrangements.

Supporters, however, applauded the judge’s ruling, which broke nearly new legal ground. Only one other U.S. court, in New Jersey, has upheld the validity of a contested surrogate contract between a couple who wanted a child and the woman they paid to help conceive it. That ruling, in the celebrated Baby M case, was reversed on appeal when the New Jersey Supreme Court said such a contract is invalid.

If Johnson appeals her case, experts say Orange County Superior Court Judge Richard Parslow’s legal reasoning could be overturned. But it is less likely that a court would change his order awarding custody to the genetic parents, Mark and Crispina Calvert.

That is because the judge, as part of his ruling, withdrew Johnson’s permission to visit the child. The child will therefore know only the Calverts as its parents, and appellate courts may feel it is in the child’s best interests to remain in the situation to which he has grown accustomed.

Something similar happened with Baby M. The New Jersey Supreme Court said that even though it disagreed with the lower court’s decision, it was too late to change the living arrangements for the child.

In the future, however, that state’s high court warned, children should not be removed from the custody of their birth mothers while a custody dispute in a surrogate birth case is being litigated. That court said the birth mother should have custody because that would be in the best interest of the child.

Because Parslow is a lower court judge, his opinion is likely to be influential, but it is not binding on other courts, even in California.

In delivering his ruling, the jurist spoke for half an hour from notes to a courtroom packed mainly with reporters. To his right was a sign that could have stood for this case. It said, “When life gives you lemons, make lemonade.”

The facts were these: Crispina Calvert, who had had a hysterectomy but still wanted to have children, worked as a registered nurse in the same hospital as Johnson, an ex-Marine, licensed vocational nurse and mother of one. Another nurse, a mutual friend who had heard Johnson express interest in being a surrogate, introduced them.

The Calverts could not afford to go through a surrogate agency, but they paid $3,500 for a copy of an agency’s standard surrogate contract and some legal advice. Johnson signed the contract, agreeing to be implanted with an egg from Crispina and sperm from Mark. She agreed to carry the resulting fetus and deliver the baby for $10,000, the standard surrogate’s fee. But in the seventh month of pregnancy she changed her mind and filed a lawsuit seeking to invalidate the contract, saying she had bonded with the fetus and wanted to keep the child as her own.

Parslow began his ruling by acknowledging the strangeness of modern reproductive technology, which is to say, it sometimes takes three to tango.

“It took three of them to get the child here,” he said.

But he compared Johnson’s role in the trio to that of a “foster parent,” who knows she is only taking care of the child for awhile. Parslow acknowledged that his ruling clashed with a California statute that makes it plain that whoever gives birth to a baby is its mother. He said that the Legislature, in failing to revise that statute, had failed to keep up with changes in reproductive technology, leaving the courts to deal with them.

The judge made clear that the logic of his ruling would apply only to a gestational surrogate such as Johnson, a type of surrogate who is much rarer than a surrogate who supplies her own egg. That egg is then fertilized with the sperm of the intended father and the baby surrendered to him and his wife at birth.

He thus left open the possibility that if Johnson had been a regular surrogate--and had had a genetic relationship to the baby-- his ruling might have been different.

As far as could be determined, he is the first judge to decide a contested case involving a gestational surrogate.

Marjorie Shultz, a professor of law and medicine at UC Berkeley and a supporter of surrogate parenthood, applauded the result of the judge’s decision, but not his reasoning. She said she disagreed with the judge’s primary emphasis on the genetic tie of the child to the Calverts as a reason to award them exclusive custody.

She said that in an age in which science has allowed people to take greater charge of their procreative functions, people should be encouraged to make decisions and, if necessary, have them enforced by courts. Therefore, she said, their intentions--in this case expressed in a written contract--should be honored as the key factor in a judicial evaluation, whether or not the intended parents are genetically related to the child that is produced.

She rejected as too paternalistic the notion that women as a class need to be protected from serving as surrogates. “If you start saying that a whole class of people--in this case women--are somehow incapable of making decisions, you’re in a very bad spot,” she said.

Shultz said that the traditional safeguards of contract law--principles, for example, that invalidate an agreement signed under duress--are sufficient to protect the interests of surrogates who are conned or coerced into carrying someone else’s child.

Many surrogates say they serve for a combination of altruistic and financial reasons.

Field, the Harvard expert, acknowledged that the industry is small. There are only a few hundred surrogate parent pregnancies per year versus tens of thousands of adoptions. But she said she feared encouraging surrogate arrangements is a bad public policy, in part because it will eventually reduce the number of adoptions and increase the number of orphans.

“If courts start enforcing surrogacy arrangements,” she said, “it will encourage people to think of surrogacy as an available option--a way for childless couples to have a genetic link to child.”

She also said she thought it would be better for courts to “stress the importance of nurture, rather than genetics” in parenting.

She said she thought it was terrible that Johnson was left with no rights to visit the child she bore. “I would go further by saying that when the gestational mother says she wants custody, I’d give her custody, and them (the intended parents) visitation.”

Surrogates’ contractual positions have been improving--if marginally, in the last few years. In the Baby M case, the surrogate, who was also the natural mother, signed a contract that required her to have an abortion if the father demanded it. Johnson’s contract contained a similar provision. But it also contained one that seemed to nullify it.

According to the National Conference of State Legislatures, 12 state have laws regulating surrogate parenthood. Most make the contracts unenforceable in the courts and bar payments to surrogates.

That is also the approach favored in California by an 18-member advisory group appointed by the state Legislature.

Parslow made several recommendations of his own to California legislators. He urged them to formulate rules that would provide for intensive psychological evaluations of parties to a surrogate contract by “an independent agency.” He also recommended that the Legislature require that the genetic mother in a gestational surrogate case be medically incapable of carrying a child.