Give the Baby to the Genetic Parents : Orange County surrogate case finds the courts deeply involved again

Until the birth of “Baby Boy Johnson,” born to a woman who contracted with a couple to carry their embryo to term, the legal arguments over his custody seemed only theoretical. Now they are not. Now there’s a 3-day-old baby--who was two weeks early, has brownish hair and weighs 6 pounds-10 ounces--needing not only a name and a birth certificate, but a good home in which to grow and mature. Setting aside for the moment the wisdom of their judgment to hire a surrogate in the first place, the couple should be given custody by the court.

At the least for the moment, that is what Orange County Superior Court Judge Richard N. Parslow Jr. has decided to do. He says that until a temporary custody hearing next Thursday, the baby belongs with the couple, Crispina and Mark Calvert, who paid Anna L. Johnson $10,000 to be a surrogate. Johnson later accused the Calverts of failing to fulfill on all their promises and sued for custody. That catapulted the agreement squarely into the middle of a legal quagmire over surrogate parenting that previously had reached a pinnacle with the “Baby M” case, in which the surrogate mother provided the egg. The “Baby Boy Johnson” case is the first in the nation in which a surrogate staked a legal claim to a baby that wasn’t genetically hers.

The case has careened through the media from week to week. Johnson, a single mother, one week pleaded guilty to welfare fraud. At another point, she said she was part Indian, which could make the child subject to the Indian Child Welfare Act. Still later, she said she thought the baby might be from her egg, after all, due to some error during implantation.

But preliminary blood tests indicate that the baby is the Calverts’; DNA tests will settle the matter once and for all. The real issue seems to be not the child’s genetic heritage but something outside the realm of science. Johnson says she unexpectedly became emotionally attached to the baby she was carrying and doesn’t want to completely give him up. She has indicated she cares about him by recommending to the judge that the Calverts--rather than a foster home--keep him until next week.

Previously, the courts stepped in to protect the baby, forbidding the participants in the case to give pictures of him to the media and requiring money earned from publicity to be put into a trust fund for him.

That good judgment should be followed by another. The Calverts, assuming they are the true genetic parents, should be given permanent custody as soon as possible.