Custody Battle Begins Over Surrogate’s Baby : Parenthood: The two sides can’t reach an agreement. Foster home may be interim solution.

Orange County’s surrogate-mother battle lands back in court today at a critical point, when a judge will be asked to decide who may take home 2-day-old Baby Boy Johnson.

Attorneys for surrogate mother Anna L. Johnson and the infertile couple who hired her to carry their baby face a showdown before an Orange County judge because they cannot agree on a temporary custody arrangement for the infant, who weighed 6 pounds, 10 ounces at birth Wednesday.

While Johnson nursed the infant at St. Joseph Hospital, lawyers on both sides of the dispute heralded the tiny new life but disagreed over who should raise him. In dueling news conferences, the lawyers previewed the fight that probably will materialize before Superior Court Judge Richard N. Parslow Jr. in Santa Ana today.

“I certainly hope the Lord is with the judge on this case,” said Richard C. Gilbert, Johnson’s attorney, adding, “The judge is going to make history.”

Johnson, who agreed to carry an embryo made from another couple’s sperm and egg, is the first surrogate mother to ask a judge for custody and parental rights to a baby that has no genetic relationship to her.

Gilbert said that Johnson, 29, was prepared to agree to “shared parenting,” in which she would allow full visitation to the donor parents, Mark and Crispina Calvert. But the couple said they would rather see the baby in a foster home before accepting that arrangement.

And that possibility loomed large as the parties in the unique legal battle headed to court today. The baby’s legal guardian said that if Johnson and the Calverts cannot agree, he would advocate placing the infant in a foster home temporarily. The decision rests with Parslow.

A few miles from the legal posturing, nurses at St. Joseph escorted Johnson to the nursery every few hours, lifted the 19-inch-long newborn from his incubator and placed him in her arms to be breast-fed. The still-unnamed infant, diapered and wrapped in a blue blanket, had turned a little blue for a short period after birth but is doing fine, said hospital spokeswoman Joan Trezek.

At Johnson’s request, nurses staved off dozens of reporters eager for photographs and interviews, and no phone calls were permitted to her room.

So packs of journalists crowded into press conferences in the lawyers’ offices instead.

Joining their attorney in a Santa Ana news conference, the Calverts described their joy at holding the infant Wednesday night. DNA tests to confirm the baby’s parentage were still being performed but Crispina, who is Filipino, and Mark, who is Caucasian, said they have no doubt the baby belongs to them. Johnson is black.

“He looks like an Oriental baby with my husband’s nose,” Crispina said, smiling at Mark. “He’s gorgeous. He’s our miracle baby. I could hardly sleep last night. I was thinking of my baby’s face.”

At his office in Orange, Gilbert told reporters that Johnson is “still celebrating the birth of her new baby” but is “extremely frightened” that Parslow might order her to surrender him to the Calverts or to a foster couple.

He said he will argue that Johnson has parental rights as the birth mother and should not be shut out of any custody arrangement. Legally, Johnson could argue for sole physical custody of the baby, Gilbert said, but to be fair, she is willing to share that with the Calverts.

For $10,000, Johnson agreed to be implanted with an embryo from the Calverts’ egg and sperm, which were united in a laboratory dish. She later sued them, arguing that they ignored her needs during pregnancy. But now Gilbert says “all is forgiven,” and that Johnson is willing to enter a permanent, three-parent relationship with the couple.

But the Calverts said they did not think shared parenting is a good idea, and they oppose Johnson winning sole physical custody, even for a short time.

“We’d prefer that the child be in a foster home” than with Johnson, Mark Calvert told reporters.

Gilbert said he does not understand how the Calverts could feel that it is “in the baby’s best interests to be taken from the breasts of its birth mother.”

The Calverts’ lawyer, Robert Walmsley, said he is willing to listen to a shared-parenting proposal and did not want to ignore Johnson’s feelings, but he added that he will not negotiate over the Calverts’ legal right to custody, a right he believes is firmly backed up by the law.

“The best thing is for my clients to have their child as it was meant to be,” Walmsley said.

Although one portion of California law states that motherhood can be established, at least in part, by the fact that a woman gave birth to a child, it can also be established through blood tests, the way paternity is commonly determined, Walmsley said.

“This is the child of Mark and Cris Calvert,” Walmsley said. “Traditionally in paternity cases, the courts turn to genetics to determine parenthood. Equal protection requires that the same law apply to the mother.”

But Gilbert pointed to a recent opinion of the ethics committee of the American College of Obstetricians and Gynecologists, which held that while the link between the genetic parents and a baby is important, the relationship between a gestational mother and the child she bears is more important.

Gilbert said he has been receiving legal help from the National Coalition Against Surrogacy, which drafted briefs for the famous Baby M surrogacy case in New Jersey, and from lawyers who represented the birth mother, Mary Beth Whitehead, in that case. The National Assn. of Surrogate Mothers has been giving similar legal help to Walmsley in preparing his arguments, he said.