Genetic Parents Win Sole Custody in Surrogate Case : Litigation: The judge rejects Anna L. Johnson’s claims that she is the legal mother after carrying the baby boy to term and delivering it. She says she will appeal.

SANTA ANA —  In a case that attracted national attention, a judge ruled Monday that surrogate mother Anna L. Johnson has no rights at all to the baby she bore for an infertile couple and granted exclusive custody to the infant’s genetic parents.

The decision by Orange County Superior Court Judge Richard N. Parslow Jr., which sprang from a highly emotional custody dispute, marked the first time in the nation that a judge has had to decide the rights of a surrogate mother who was genetically unrelated to the baby she bore. In most surrogate arrangements, including the famous Baby M case in New Jersey, a woman’s own egg is artificially inseminated, thus, she is the child’s genetic mother.

The judge agreed with Mark and Crispina Calvert, who hired Johnson to carry their embryo because Crispina had had a hysterectomy, that their genetic relationship to the baby makes them the only true parents.

“We never set out to make history or set precedent,” Mark Calvert, 34, said. “We just wanted to have a baby. We are just so glad that we have our son.”

Parslow rejected Johnson’s argument that she should be considered a legal mother of the 5-week-old baby boy because she gave birth to him. The judge said a surrogate who is genetically unrelated to the child she carries does not acquire parental rights by virtue of having given birth do it.

Parslow said the couple should not have to share parenting with Johnson, and he terminated the temporary, twice-weekly visitation privileges he had granted earlier.

As it became clear that they had won, the Calverts embraced, and Crispina Calvert, 36, wept quietly in her husband’s arms. Their son’s birth certificate has been blank since he was born Sept. 19, but the couple said they would now have his name--Christopher Michael--placed on the document.

Johnson, 29, who had predicted that she would lose in the trial court, was not present to hear the decision. She told the baby’s court-appointed guardian that she “did not want to come to an execution.”

Johnson’s lawyers immediately vowed to appeal.

“When the judge screws up at the trial level, it’s the baby that takes the fall. And he screwed up,” Richard C. Gilbert, one of her lawyers, said at a news conference. “No thinking person is going to stand for this in the long run.”

Johnson, a single mother of a 3-year-old daughter, said through her tears that she was “heartbroken.”

“I’m in a deep state of mourning for my son,” she told reporters. “He will always be my child. No matter what they call him, he will always be my Matthew.”

The Calverts’ lawyer, Christian R. Van Deusen, hailed the decision as a triumph for reproductive freedom and rejected Johnson’s contention that it heralds a trend of turning women into “incubators.”

“Males can sell their semen,” he said. “Then why can’t women as a matter of law have the right to become a nine-month foster mother by carrying another couple’s child?” he asked.

Parslow also ruled that surrogate contracts such as the one in this case--in which an infertile couple hire a surrogate to gestate an embryo made from their own sperm and egg--are legal in California and are not counter to public policy. No judge in California has ever before ruled on the validity of any kind of surrogate contract.

In a 35-minute address to a hushed, packed courtroom, Parslow said Johnson’s role was like that of a foster parent who cares for a child while the “natural mother” is unable to do so. Parslow said that Johnson made a “substantial contribution” in helping the child come into the world but that she was an “intelligent” woman who signed the $10,000 surrogate contract knowingly and understanding that she was to relinquish the child to the Calverts.

The judge had been likened by an attorney to King Solomon, who determined which of two women was the true mother of a baby by threatening to cut the child in half. Parslow addressed that comparison in declining to declare all three adults the baby’s legal parents.

“In an increasingly anti-child, I’m-for-me-first society, I think the decision I’m making in this case is definitely pro-child,” Parslow said. “I decline, as I say, to split this child emotionally between two mothers,” he said, adding that three-parent arrangements could result in protracted, bitter disagreements and “invite emotional and financial extortion.”

William G. Steiner, who was appointed the baby’s guardian to help assess the best interests of the child, welcomed the decision, praising Parslow for protecting the infant from emotional trauma.

“The baby was the winner,” Steiner said. “This baby needs a consistent figure in his life. He doesn’t need the tension and the turmoil of being pulled between three people.”

Harold F. LaFlamme, a court-appointed lawyer for the baby, agreed that Parslow’s decision was in the best interest of the infant. But he said it poses thorny civil rights questions for those who may enter into similar surrogate arrangements in the future. Suppose the genetic parents rejected the child they had contracted for because it had birth defects, LaFlamme speculated. Would the surrogate mother then be forced to raise it?

Proposing another dilemma, LaFlamme wondered if the pregnant surrogate decided that she wanted an abortion, would the genetic parents have the right to stop her?

“What about the surrogate mother’s lifestyle?” LaFlamme went on. “What if she drinks a little, or takes a few drugs, or eats junk food? Could the genetic parents control her behavior? If she wanted to move to New Zealand, could they keep her from doing that?

“How are we going to do that in a free society? I think these are problems that are just insoluble.”

Johnson, a licensed vocational nurse, sued the Calverts on Aug. 13 and sought custody of the baby, contending that they neglected her during pregnancy and would not make fit parents. She also argued that she had developed a bond to the child that entitled her to keep him.

The Calverts’ lawyers had questioned the sincerity of that bond, noting that Johnson had told several people that she did not feel connected to the baby and consistently represented to the Calverts that she was carrying their child. Parslow agreed Monday, saying there is “substantial evidence” that she never bonded with the infant “until she filed her lawsuit, if then.”

Parslow’s decision was criticized and praised by expert observers. Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, which favored a three-parent finding, said the ruling “simplifies” childbirth into a “business contract” and “condones baby-selling.” Jeremy Rifkin, co-chairman of the National Coalition Against Surrogacy in Washington, said the decision will make it easier for rich couples and surrogation brokers to “solicit black and brown women” to use them as “breeders.”

But New Jersey lawyer Gary N. Skoloff, who represented the contracting parents in the Baby M case and who is chairman of the American Bar Assn.’s family law section, said the decision preserves a valuable option for the 10 to 15% of married couples who cannot bear their own children. Attorney William W. Handel, co-director of the Center for Surrogate Parenting in Beverly Hills, said it upholds the principle that women are entitled to do what they choose with their reproductive powers.

“This is a choice women must be able to make,” said Lori B. Andrews, an American Bar Foundation research fellow specializing in reproductive technology. “It’s much more dangerous to override their choices.”

Times staff writer Jim Newton contributed to this report.

THE SURROGATE MOTHER CASE

MARK AND CRISPINA CALVERT

Unable to bear a child on their own because Crispina Calvert had undergone a hysterectomy, the couple signed a contract to pay Anna L. Johnson $10,000 to help. Their sperm and egg were implanted in the surrogate mother through a medical technique known as in-vitro fertilization.

ANNA L. JOHNSON

Toward the end of the pregnancy, Johnson, a 29-year-old vocational nurse, said she became bonded to the baby and decided to seek custody. She sued, accusing the Calverts of failing to pay her on time and neglecting her. Her attorney said the surrogate contract amounted to baby-selling and was illegal.

THE BABY

On Sept. 19, a healthy, 6-pound, 10-ounce baby boy was born at St. Joseph Hospital in Orange. The judge awarded temporary custody to the Calverts and permitted Johnson daily visits. He later reduced the visits to twice a week.

THE RULING

In a landmark decision Monday, Superior Court Judge Richard N. Parslow Jr. ruled that Johnson has no claim to the baby she bore for the Calverts. The judge said such surrogate contracts are legal and enforceable, and he suggested that the Legislature set standards to prevent similar custody cases.

THE NEXT STEP

Lawyers for Johnson are expected to ask the 4th District Court of Appeal in Santa Ana to modify or reverse the decision. The appeals process is likely to take more than a year. The Calverts have exclusive custody of the baby. There will be no Superior Court hearing to determine custody or visitation rights, since Johnson was denied parental rights.

Trust Fund for Infant

A trust fund has been established to aid the infant born from a surrogation contract between Mark and Crispina Calvert and Anna L. Johnson. Contributions can be sent in care of Orangewood Children’s Foundation, 2 City Blvd. East, Suite 250, Orange, Calif. 92668. They should be designated “For the Surrogate Baby.” For more information, call (714) 385-8110.