In an unprecedented case that raises new questions about the rights of surrogate mothers, an Orange County woman who agreed to carry another couple's child filed suit on Monday claiming she should keep the baby even though she has no genetic link to it.
The lawsuit filed by Anna Johnson, the surrogate mother who is seven months pregnant, marks the first time in the nation that a judge is being asked to decide whether a birth mother has the right to call a child her own when it is the product of another couple's sperm and egg. Previous court cases have involved contracts in which a surrogate mother's own egg was fertilized through artificial insemination.
"Just because you donate a sperm and an egg doesn't make you a parent," said Richard C. Gilbert, one of Johnson's lawyers. "She is not just a machine, an incubator. Where do souls come from? The egg? The sperm? The birth mother? What passes through that placenta? Anna is as important a biological parent as any other biological donor in this case."
The dispute highlights the wrenching questions that can develop on the cutting edges of science. In this case, medical advances gave an infertile couple the chance to have a child of their own, by uniting their sperm and egg in a laboratory through the process of in-vitro fertilization, and implanting the embryo in another woman's uterus. But no law exists to assure the couple that they can claim the baby once it is born.
Johnson, 29, a licensed vocational nurse and a single mother, agreed in January to bear a child for Mark and Cris Calvert, an Orange County couple, for $10,000. Now, she says they have breached the contract by making late payments, failing to buy life insurance for her, and by not caring adequately for her and the fetus. Johnson claims that their actions amount to "fetal neglect," and feels she should keep the child.
"This child is not genetically mine, but I have more feelings for him than the natural parents do," Johnson said in an interview last week. "If they are distant and uncaring now, what are they going to be like when he comes?"
Mark Calvert, 34, an insurance underwriter, and Cris Calvert, 36, a registered nurse, reject Johnson's account, saying they have fulfilled all their promises and have done more than the contract required to care for Johnson. They claim that Johnson has tried to exploit them financially and emotionally, demanding payments early and threatening to keep the baby if she did not get the money.
"Her contacts with us have been just a series of demands, complaints and misrepresentations," Mark Calvert said in an interview. "We drove her to doctor's appointments, gave her money, brought her food, asked how she was doing. We did even more than we were required to do."
After the Calverts had complied with Johnson's demands to have two $2,000 payments made at least a month ahead of schedule, she wrote them a letter on July 23 demanding the rest of the $10,000, even though most of it was not due until after her October delivery date, they said.
"This situation can go two ways," the letter said. "One, you can pay me the entire sum early, or two, you can forget about helping me out, calling it a breach of contract, and not get the baby."
The famous Baby M case in New Jersey brought surrogacy to widespread public attention in 1986, but that was a case in which the surrogate, Mary Beth Whitehead Gould, had her own egg fertilized with the sperm of William Stern, so she was genetically the mother of the child.
The New Jersey Supreme Court held that surrogacy contracts are illegal because they amount to baby-selling. Custody was awarded to the baby's biological father, Stern, and his wife, Elizabeth, but Whitehead Gould was given visitation rights.
In-vitro fertilization produced the first "test-tube baby" in England in 1978. It has only been in the last five or six years that the technology has been used in surrogacy arrangements. Most surrogacies are achieved through artificial insemination using the surrogate's egg.
Gary N. Skoloff, the lawyer who represented the Sterns, said he doubts Johnson will win parental rights to the child in her womb because it was not made from her genetic material.
"I think she has a much weaker case than Mary Beth Whitehead had, because you have that extra step of distance," Skoloff said. "But you have this heavy-duty emotional argument of a woman claiming a child she bore. Who knows where it will lead?"
Skoloff said the dispute demonstrates the need for national legislation on the issue of surrogacy. The Baby M ruling is not binding outside New Jersey, because the case was never heard by the U.S. Supreme Court. At least seven states have outlawed surrogacy contracts. California is among the states that have no law on the issue. Several measures have been introduced in the state Legislature to legalize and to criminalize surrogacy contracts, but none has succeeded.
Gilbert said he will seek to have the contract declared invalid and illegal because it constitutes baby-selling. He also hopes to establish that it takes more than genetic material to convey the title of parent.
Christian R. Van Deusen, the attorney for the Calverts, said he will seek to enforce the custody rights laid out in the contract.
"That child is biologically Cris' and Mark's," he said. "That contract is legal and valid. (Johnson) is a physiological parent, no question about it. But the genetic parents have more right to the baby than she does. Genetics are the property of the parents who provided them."
Van Deusen said that regardless of who is deemed to be the baby's parent, custody will be awarded by a judge who must determine what is in the best interests of the baby. The surrogacy contract allows for that judicial decision, he said.
Attorney H. Joseph Gitlin, who heads the surrogacy committee of the American Bar Assn.'s family law section, said he believes that surrogacy contracts must be legalized.
"It's reality," he said. "People are going to do it. It's like birth control, or abortion. There's a real need. People are desperate to have children."
William W. Handel, an attorney whose Beverly Hills-based Center for Surrogate Parenting is the state's leading broker of surrogate agreements, said the Johnson dispute points up the need for extensive screening of potential surrogates. Painful rifts between the parties are rare, he said, and should not be used to argue against surrogacy arrangements, most of which go smoothly and benefit everyone involved.
"Where do you ever get something that doesn't hurt someone when change is under way?" said Handel, whose standard surrogacy contract was used in the Johnson case. "But the benefits far outweigh the risks. This is a real alternative for infertile couples."